Obama On SSM

Along with the usual trolls, some on the left go all out on President Obama, which sometimes annoys me even more. They should know better, right?  

One lame attack is on his gay rights bona fides, along with a shot at him  "for it after being against it" on same sex marriage. After supporting it on a questionnaire (I never saw the specifics in the past, but here you go) when he was a local politician before SSM was found in even one state, he changed his views as society did as a matter of political reality and the art of possible.  Meanwhile, he supported more gay rights than many, and led the movement to do away with DADT and eventually to push for heightened scrutiny for sexual orientation as a matter of federal constitutional law.  

The "reality based community" should realize that as a whole he was great on this issue, unless "great" requires being far left.  The overall argument holds for other issues too though there are levels of how off base the criticisms are depending on the issue. For instance, I think he has been fairly horrible on transparency and trying to block lawsuits (which however great they are given current law would often fail if taken to trial) on states secrecy grounds or the like.  I think that is one of the areas where he does have something to answer for, beyond questionable pragmatism.

His book Audacity of Hope (2006, one state with SSM, maybe a few with some sort of civil unions) is pretty useful here and darn if few actually cite it even though Obama explains himself well. First, he overall says something I fully agree with -- liberals should own talk of "values," since that is a general way we talk and our values count too. Al Franken was a big promoter of this back when he had his talk show. Second, Obama comes out as a Christian who opposes relying on a few often opaque verses of the Bible to label gays and lesbians as immoral. 

More specifically, see pages 222-23, he is "not willing to have the state deny American citizens a civil union that confers equivalent rights on such basic matters as hospital visitation and health insurance coverage simply because the people they love are the same sex."  This was more than most places, including NY, consistently provided. The phrasing might seem a bit weak, but that just underlines the low level of equal rights for GLBT at the time.  A federal benefit providing even that, which admittedly is a bit thin and vague would have been a big step eight years ago.  And, in time, he did clearly support "civil unions," which again even when he first ran for President would be more than most states, including many fairly liberal ones, had.  

His pragmatism on this point was also underlined in the book. He argued that "in the absence of any meaningful consensus, the heightened focus on marriage was a distraction from other, attainable measures to prevent discrimination against gays and lesbians." And, again, he supported such things in ways that would have moved things significantly forward.  Now, this might -- like abolitionists who felt Lincoln was too pragmatic -- seem too little for some. But, it is a fairly realistic thing to support while still pushing the movement for equality forward. Many inside the movement itself shared such a "step by step" strategy as other movements have.

My personal problem with his remarks when I first read the book was his voicing his religious stance on the issue.  Whatever his religious views, we are talking about state definitions here. A person's religious beliefs on abortion is their own, but opposition there should not determine (though it is likely to influence in some sense) how they would let others have a legal right to choose. If he supported "civil unions" for same sex couples, as a matter of law, he either should support it for all -- end the word "marriage" -- or evenhandedly support legal marriage.  Basically, I felt he was singling out this one area to insert his religious views though yes, I also was bothered by them too.  But, he can have them, I guess.

Anyway, his religious opposition to same sex marriage was of limited concern, and any somewhat cynical expression of it to appeal to certain voters understandable politics. Why? Because on the whole, he was sound on this issue.  Particularly, Obama cited that he was open-minded on the issue, open to change. This reflects the stance of society on various social issues.  And, since as a politician and President in particular, "meaningful consensus" is significant here -- it also is as a matter of constitutional law -- the change would in part be motivated by social change.

Campaign volumes can be quite telling. 

Misogyny in Iran

“We do not want to propagate virtues by acid,” some of the protesters chanted, a reference to the Islamic obligation of “propagating virtue and preventing vice.” Others shouted, “Death to extremists.”

The current Iranian President denounced a new decency law as extreme. With the upcoming Rosewater film portraying the 2009 election, perhaps he is a small sign of progress.

Embattled Rebel: Jefferson Davis as Commander In Chief

James McPherson was the one volume Civil War history I had as a text book. This is rather more slim, underlined by margins of a teenager trying to fill up pages. Guess it tells us the basics, but especially putting aside all its summaries of events and characters, it isn't very deep. Plus, at times it seems to be geared to high school students prose-wise. Okay.

Vanita Gupta (and drug criminalization)

After a controversy largely arising out of a controversial client ended one path, the new nominee for chief of the Department of Justice’s Civil Rights Division should please voices on the left. Some conservative voices don't like her comments against drug criminalization, a term clarified here. I added a comment on the effect of drugs on crime.

Challenging the Status Quo (Beyond Voting)

I am not a big fan of the guy cited but the thread went interesting places: 

Voting is the only tool that people have to challenge the status quo other than violent revolution? The court system, collective bargaining, street protest/strikes/pickets, the building of alternative social institutions, community education and organizing…they all count for nothing?

“Voting is the only tool” strikes me as being nearly as oblivious as “violent revolution is the only tool”.

A response by "JL," who then provides an extensive list of his/her own efforts in influencing the status quo beyond voting.  Also, "gmack":

If voting is something we do only as individuals, then we’re doing it wrong. If it is to be a political activity, voting is something we have to do together, as part of a group oriented around common opinions. In other words, I don’t think it’s a good idea to view elections simply as an opportunity for individuals to register individual preferences. That way of interpreting voting ends up collapsing into Brand’s position: If my personal preferences are not satisfied, I just abstain. Voting instead is part of an organized practice, and thus not altogether different from, say, building alternative institutions, engaging in collective protest, etc., etc.

The results of the actions of single persons do sometimes seem to me to be of unclear value though like one drop of water joining others the fill a glass, the ultimate ends can ultimately be seen by the actions of individuals.  For instance, people change their minds about things, in part by listening to others and reading things say say. Who's to know how even one person's input here will not matter, especially if addressed to major distributors such as members of the press?  At least, I feel compelled to do so here in various cases, including when things are said wrong. I'm a bit of an evangelist in that sense, feeling a need to preach and promote.

Such is but one way to change the status quo. Take high school. If just a few people, especially those with some social standing, oppose certain types of injustices -- including harassing certain types of people -- it will be significant.  It can change the status quo.  Sometimes, it's a matter that few really give much of a thought about something.  Just one person, or perhaps a small group, can change minds by bringing it to light. 

On the mega level, I have noted in the past that the courts alone doesn't define the law, in fact, it is influenced by other factors. This is true even if the judge involved rests on originalism.  Some give courts too much credit here. The same applies to voting. It is obviously very important, but just one tool, including to change and influence society. 

"girls played hooky from school and tried to join ISIS"

Good articles on ISIS' attraction to some in West.

KC Loses For First Time Since Late September

Bound to happen. After a long layoff, with "small game" James' record in the playoffs and the unstoppable force of Bumgardner (James Garner's original name!), good time as any. Wipe off the dust and win tonight! He's bound to lose eventually too.

Puerto Rico SSM Ban Upheld

When same sex marriage cases are discussed, repeatedly we hear of "states" and D.C., plus perhaps in some cases (given DADT especially) the military and other federal agencies. But, I repeatedly -- including from the usually on the ball on this issue Chris Geidner -- don't hear about federal territories. I myself was reminded once that the 1st and 3rd circuits include Puerto Rico and the Virgin Islands, so are not free from worrying about this issue giving state and D.C. action. I reminded someone this this very day. And, what happens? A federal judge out of Puerto Rico (1CA) upholds its ban! A Carter nominee at that.  Told ya so!  

The ruling spends the key middle portion arguing, with an appeal to a 1CA DOMA case in particular, that Baker v. Nelson is still binding. When the 6CA decides to finally announce their rulings -- and wouldn't be charming if we have a two-fer here -- if Judge Sutton is the deciding vote on the side of inequality that odds are that he will too.  He has a harder job of it being on the appellate bench.  Won't belabor the point on how I and others find Baker non-binding. The 1CA ruled before Windsor, but let me note that it is not beyond reasonable (if far from compelling) to read it to apply here too.*  It was a fairly conservative opinion.  If pressed, wouldn't bet the farm that the circuit will join the other four.  Would also note that Puerto Rico is not really a great fit for the New England 1CA. 

The 1CA overread the doctrinal breadth of the Baker summary affirmance to my eyes and makes it broadly about "same sex marriage" though (cf. footnote) in its holding mixed federalism concerns along with a test that "did not adopt some new category of suspect classification or employ rational basis review in its minimalist form" as applied to sexual orientation. Wikipedia, which already has reference to the ruling, tells me that a referendum blocking civil unions and domestic partnerships did not pass.  This helps the government's case -- as compared to a majority of places, the matter is up to simple legislative process that can be replaced I assume by a simple vote tomorrow in the legislature.  Still, the 1CA rule very well might not justify various types of denial of protections of benefits less than marriage. This underlines Baker v. Nelson, especially as applied in the current day with current realities, is of limited concern. 

But, the district judge here doesn't really just rest on Baker v. Nelson. The last third of his opinion makes the reading in fact look almost pretextual. He talks about "traditional" marriage, quoting Alito's dissent in Windsor. How the "very survival" rests on the procreative aspect. Give me a break. That would call into question even Griswold. The "ingenuity and imagination" of the four appellate courts that ruled the other way is cited and polygamy/incest raised.  We hear talk of "minimal marriage" (new one!)  and the Schuette case (involving something concededly allowed) is cited to support the political process.

Its a tour de force of backward b.s. It's "DISMISSED WITH PREJUDICE" grant is not just legal language. It's a substantive description.  Think it is fair for a district judge here to hold the line. But, he couldn't rest with that. He stacked the deck and embarrassed himself.

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* I can be convinced that this gives the judge too much credit, especially when he cites the first portion of the opinion and notes state control of marriage "led" the USSC to decide as it did. This papers over the equal protection portion of the opinion. Guess the one group loathe to cite Scalia (though he cites Alito) are those who want to uphold SSM bans.

And more: SCOTUSBlog is on the case.  It's summary cites the "tribute" given to "traditional marriage" (good use of quotes; again ... coverture? what?) and underlines my stack the deck conclusion:

If anything, he added, “Windsor stands for the opposite proposition:  it reaffirms the states’ authority over marriage, buttressing Baker‘s conclusion that marriage is simply not a federal question.”

Putting Windsor and Baker together “in tandem,” the judge declared, those rulings “emphasize the states’ historic and essential authority to define the marital relation free from federal intrusion.”  He quoted language in the main Windsor opinion saying just that.

Except that it underlines that there are constitutional limits here, something the Court found repeatedly as well. Marriage is a federal question. There is a difference between there being no substantial federal question and a win on the merits, especially with the help of the fairly recent 1CA ruling's direct language regarding Baker.

The  judge here, along with his "tribute," did the evenhanded conservative a disservice.  He placed a thumb on the scales. If you want the USSC or at least the 1CA to decide the issue, fine, but really. Again, if this is taken to its logical conclusion, Griswold would fall -- it struck down a state regulation of the contours of the marital relation.  It is "simply" hyperbole.

Sports Weekend

Jaguars won, Seattle lost & each NY team lost, the NYJ in painful fashion. Overall liked the Joan Biskupic Sotomayor book -- in fact, wanted a bit more (e.g., it mostly skipped the hearings!), a nice crisp read. Getting a lot of love from the Court watching community.

Ginsburg at 92Y

Supreme Court Justice Ruth Bader Ginsburg and former President of the Supreme Court of Israel Dorit Beinisch joined NPR’s Nina Totenberg yesterday, adding to Ginsburg's latest public appearances. Sotomayor private let her know that she might be overexposing herself. Seriously, it does seem Ginsburg is putting herself out there a lot recently. And, her comments continue to be somewhat blunt and a bit controversial though those in the know are by now familiar with her standard replies. 

I listened to the very beginning of the appearance and was somewhat annoyed with three of her answers. Totenberg started with the Saturday morning voting rights order/dissent and Ginsburg explained that the matter came at the last minute and it took time for her to write a reply. The general assumption is that she was sending a message here and the timing underlines the point. I really don't see why it couldn't, e.g., not just wait to Monday morning.  The USSC could have just stayed it until then. 

The more dubious comment was in response to a question regarding the by now much criticized slew of unexplained actions "by way of injunction, stay, unsigned order, and wordless denials of cert petition"  Dahlia Lithwick suggests -- as might be understood by people who recognize the technique in less marble tinged locales -- such silence can "hide a multitude of conflicts."  Ginsburg noted that these orders etc. can be a result of last minute appeals that require quick responses and there isn't time for more. 

Oh please.  There is time for a brief explanation especially as applied to same sex marriage cases which they had for some time and was not compelled to deny right away.   She also noted as to the SSM cases, there is no circuit split, so the Court wouldn't generally take one.  Good to hedge a tad, since if you look up the guidelines here, we have this:

a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

This is the third "consideration governing review" on cert, putting aside some debate on just how without conflict we truly are. Now, I have said here and elsewhere that waiting if reasonable, but in the spirit of another recent comment, it might not be quite as easy as all that.  The question of a split itself is only so clear if we deal with a post-Windsor world, since older cases in both federal and state realms rejected the claims. Every case the USSC does not take in effect builds the momentum with them granting stays sending a signal to appellate courts they should not either. 

The final answer that bothered me was in response to calls for her to retire. I respect the prudential concerns of others -- personally 2015 looks like a good time to do it -- but surely she has every right to stay on as long as she thinks proper. The annoying thing is when she starts saying things like there being a low likelihood that someone as good as she would be confirmed in this atmosphere. Well, the fear is that with a Republican Senate or even worse a Republican President, the replacement would not be ideal.  So, yes, the people promoting this viewpoint thinks we would get a better choice -- by their likes -- if she had retired in 2014 or did so in 2015.

I personally find it unlikely that even if Republicans gain control of the Senate -- a prospect that is depressing and might be settled with runoffs and challenges for months -- her replacement would not be a perfectly reasonable sort who at the end of the day will vote like Obama's other two picks.  They might not be as flashy as Sotomayor or a newcomer to the bench like Kagan, but let's take Judge Wood.  Now, she would be 65, which might seem a bit old. Ginsburg was over 60 when she was confirmed.  Would is really be unlikely -- especially since her age might be a "plus" for some since she would on the Court for somewhat less time (though given recent trends, could be there twenty years) -- for her to be confirmed?

RBG has a bit of a high opinion of herself here. She clearly was a civil rights great, but at the time of her appointment was seen as something of a moderate.  There must be at least one option that will get at least enough support from a few Republicans to avoid a defeat. I'll believe a true filibuster here when I see it -- the last time that took place on this level was to block Fortas for Chief Justice, a guy with some baggage.  At best, this would require Obama not to pick someone who can be tarred as too liberal. This probably isn't really his inclination anyway. 

Judges have to be judicious in comments made publicly, but at some point, we have a right to call "b.s.," even of the Notorious R.B.G. Might want to tone it a bit down.

Moderate Opposition

One response here in particular felt for those who thought about it and aren't self-interested it is blatantly simple to oppose criminal punishments for drug use. Such overkill bothers me -- people aren't just wrong, they are either biased and/or unthinking. People can be wrong without this, especially for complex questions. Likewise, they (such as "conservatives") are usually not simply bad people. Strong opposition is fair, but sometimes people go too far.

SCOTUS Going to the Dogs?

Meanwhile, Oyez.com (since SCOTUS doesn't) has most of last term's opinion announcements with a few dissents from bench up and (normal time) SCOTUS itself had an orders day.

"other considerations"

Reading the Sotomayor book, mention was made of a 1950s USSC ruling involving exclusion of Mexicans from juries in Texas that recognized Hispanics are protected by the 14A:

Throughout our history differences in race and color have defined easily identifiable groups which have at times required the aid of the courts in securing equal treatment under the laws. But community prejudices are not static, and from time to time other differences from the community norm may define other groups which need the same protection. Whether such a group exists within a community is a question of fact. When the existence of a distinct class is demonstrated, and it is further shown that the laws, as written or as applied, single out that class for different treatment not based on some reasonable classification, the guarantees of the Constitution have been violated. The Fourteenth Amendment is not directed solely against discrimination due to a 'two-class theory'—that is, based upon differences between 'white' and Negro.

This runs counter to people, down until today in things like same sex marriage, who say the 14A Equal Protection Clause -- the text aside -- only concerns itself with blacks. The application to "race" generally, which widely would include alienage and religious groups ("Arabs" and "Jews" originally considered as racial groups, e.g., and such was the case even into the 1980s)  is a fairly uncontroversial, at least now, application. 

But, "distinct class" rule is wider.  A half-century before that ruling:

Of course, if such discrimination were purely arbitrary, oppressive, or capricious, and made to depend upon differences of color, race, nativity, religious opinions, political affiliations, or other considerations having no possible connection with the duties of citizens as taxpayers, such exemption would be pure favoritism, and a denial of the equal protection of the laws to the less favored classes.

Note how "color" and "race" are set forth in a list, so it is not even that they deserve special concern.  But, even granting that, the "arbitrary" rule, the "no legitimate state interest" rule widely applied for over a century.  It helped when dealing with federal legislation, since without a federal equal protection provision, equal protection was often protected as a matter of due process. An "arbitrary" (discretion not based on legitimate reason) law was seen illegitimate, not an appropriate legislative practice. "Substantive due process" continues to be seen by some as an oxymoron, but various accounts show historical practice honored this rule as well.

The test as expressed, though this was in 1900 after all, sounds a bit easy to make -- "no possible" isn't that hard.  The courts had a low bar for reasonableness in that era even in the area now seen as fundamental rights. Meyer v. Nebraska, an important early precedent for privacy rights, e.g., noted in the 1920s:

The established doctrine is that this liberty may not be interfered with, under the guise of protecting the public interest, by legislative action which is arbitrary or without reasonable relation to some purpose within the competency of the State to effect. Determination by the legislature of what constitutes proper exercise of police power is not final or conclusive, but is subject to supervision by the courts.

The phrasing suggests the complexity of the rule -- something can have a "reason," but it might not be an appropriate purpose. For instance, it might interfere with parental decision-making over education without be justified by some "emergency" or other strong interest (citing an "emergency" as not being present suggests the test is not quite as weak as it sounds -- it might be thought that something much less would do the trick). 

The rules in certain ways are stronger and classes of scrutiny has some logic (race remains more clearly wrong than let's say occupation) but some basics stay the same.  Constitutional protections are not in place merely for the central reason behind their births. It bears noting that even there the 14A was originally also there to protect non-blacks, such as Republicans and others felt to have been mistreated in antebellum times and later. Anyway, the language is general, was intended to be so, and clearly is appropriately so today.  The need being a question of fact.

The particulars changing from "time to time."

Sotomayor & Adoptive Couple

You need not be from the Bronx to read Joan Biskupic's latest on Sonia Sotomayor -- aimed to be about more than Sotomayor but also a cultural study for which she is a representative -- but it helps. For instance, one vignette involves the 5 train, which I took but the other day. She went to Cardinal Spellman HS, which was on my short list. The Puerto Rican / projects angle is not my experience, but you cannot have anything. Still, my sister-in-law has both, so there's that.  

Anyway, found her Scalia and O'Connor biographies serviceable if a bit bland at times, perhaps my familiarity with the subject matter raises my standards, but the book is pretty good at first glance. The conclusion, though not using the name, suggests Sotomayor will be a sort of "William O. Douglas" justice -- concerned more about being right than convincing others, willing to challenge others and (though he was more shy) having a large role off the Court (he had political inclinations and later was a world traveling author, she takes being an ambassador to the public very seriously, especially regarding children).  I think there is a place for that.

An example of her style was Adoptive Couple v. Baby Girl, a tragic case involving the adoption of a Native American child given federal policy that gives a special role to protect Native American culture.  The Wiki entry provides important background (with links -- a key value since the entry itself at times can be iffy).  As with many child custody matters that are subject to extended litigation, and many that are not, there was no easy answers here to ensure the best interests of the child.  She was strongly on the side of the birth father, who eventually challenged the adoption, and she made it know by strong questioning. To the degree that Roberts and Scalia each once told her to the advocates finish what they were saying.  Sotomayor seems to have toned down her questioning a tad lately.

Scalia (who joined her dissent along with Ginsburg and Kagan) at one point noted that we aren't always strictly concerned with that -- or we would arguably have a need to take away many parental rights. Still, even putting that aside, the case was messy.  Note how the case was decided 5-4 with one of the majority (Thomas) saying both interpretations of the statute were reasonable, but constitutional avoidance (he has a more limited view of the Indian Commerce Clause) put a thumb on the scales. Also, it might be useful to get a sense of the father's side of the story. 

Custody cases are tricky and the outsider should take each side with a grain of salt, but background does color my thinking here. The "sperm donor" hypo here or concern that the dissent's view would result in removal "at any point in a child's life without concern for that child's welfare" contrasts with the actual details of the case. This was no one night stand -- the biological parents knew each other off/on for years. This is a key matter -- the father had a reason to not take a break as permanent. As cited as well by the state court below (if child custody matters being largely state matters is a factor, should not state courts be respected too?) -- link found on the SCOTUSBlog case page -- the alleged "abandonment" of the birth parent here is complicated too.  

The birth mother, at least there is reason to think so, seems have made a concerted effort here to stack the deck there down to maybe even trying to complicate the tribal rights here. The adoption was started -- going by the state supreme court -- days after the birth (the adoptive parents at the birth) but the father (in the military and about to go overseas) was only notified months later.  He claims, and it is not clear this was disputed, to have not known an adoption was taking place until being served the papers. And, once he did, he immediately rejected the idea. The father thought he was giving custody to the mother, not giving up any right to see the child.  No "sperm donor," no "years" later.

The messy details suggests just the sort of thing often taking place in the real world, particularly in the lives of various minority groups.  Some justices were upset that Native peoples were getting special treatment. Duh. (The article was wrong to be optimistic regarding him obtaining custody.)  Their disrespect for biological parents is also troubling. One thing highlighted when the case was going on was the father's small amount of Native American blood.  Who else should we disqualify for rights arising from being members of tribes?  And, yes, states generally have discretion over domestic matters, but the federal government has special power over Native Americans. Federal supremacy here over states is well warranted given overall history though it was not always used wisely.

We are left with statutory analysis that might favor the majority -- especially without Thomas' caveat I am left a bit dubious -- but it does seem like a thumb was placed on the scales here in large part based on a few justices' personal biases.  Such things are always going to be part of human judging, but it still is useful to keep an eye on them.  Overall, I'm glad for people like Sotomayor and Kagan to keep an eye out. Thanks Obama.

If useful, will update my opinion of the book later this week.

Ipse Dixit USSC Texas Voting Decision In Wider Context

Update: Rick Hasen talks about Breyer's silence, offering some reasonable possibilities. The "dissent without saying" option seems lame, especially when Ginsburg was on the record.  Even if he could officially do that, it surely doesn't come off that way. People ignored when he actually publicly joined Stevens' (along with Ginsburg) dissent in Bush v. Gore. They actually aren't that wrong to not assume he dissented here. 

The Supreme Court opened its 2014 term this month with major actions on same-sex marriage, voting rights and abortion — all handled in private, without explanation or even a breakdown of how the various justices voted.

From time to time, the justices in effect brag that unlike some people, they explain their rulings via opinions. At times, they point to them when asked about certain subjects, the justices standing on the opinions.

This was always somewhat overblown, especially to the degree that the opinions were not really always a full account of what was going on. Justice Brennan, e.g., in Eisenstadt v. Baird rested on rational basis review in striking down a ban on contraceptives that applied to unmarried couples but dropped language hinting at a possible right to choose an abortion. It also noted that wider fundamental rights issues need not be decided, given the law was irrational, but covered such things in dicta anyway. 

This sort of coyness at least is somewhat explicit. The Supreme Court also denies cert or appeals, including in death penalty situations, usually without comment.  As noted here, it was even more complicated before recent days, when mandatory appeals actually meant brief orders expressly made law though a "summary affirmance" generally were given less respect.  The use of Baker v. Nelson, as alluded to there, shows, however, that the opening for broader implications were possible if desired like a loaded gun.

From time to time, justices dissented from these orders / denials, or perhaps added some sort of concurring statement noting a denial of cert. shouldn't be taken to have legal precedential significance and (maybe even if they thought the issue important) there was a reason not to take a specific case.  Likewise, I have seen a few opinions by individual justices writing "from chambers" about appeals to them directly in their role as circuit justices that explains why they did not grant a stay or some such thing. There are thousands of appeals to the Supreme Court annually and most deserve quick treatment. The practice of not even noting actions by individual justices (noted from time to time at SCOTUSBlog with links) is a bit much.

Nonetheless, from time to time, there is a case for more substantive comments. As expressed here, e.g., the to this somewhat more than causal observer striking number of without comment (with a few dissents) stay or cert orders of special significance this month involving the death penalty, abortion rights, voting and same sex marriage. Election Law Blog, e.g., provided ongoing coverage of various lower court rulings involving voting id and procedure laws that to me unfortunately wound up being deciding weeks before the election.  They should find a way to avoid that sort of thing, perhaps postpone new voting rules for a year and a set of appeals.

In a stinging defeat for the Obama administration and a number of civil rights groups in a major test case on voters’ rights, a divided Supreme Court told the state of Texas early Saturday morning that it may enforce its strict voter ID law for this year’s general election, with early voting starting next Monday.  Three Justices dissented from the ruling, which was released a few minutes after 5 a.m. following a seemingly lengthy study.

As noted here, regarding the latest "ipse dixit" voting law stay, the Supreme Court did set up a rule that looked askance at late minute judicial changes of voting procedures.  The three dissenters here, however, argued that the contours of the rule are unclear.  Does it apply when the district court ruling convincingly finds the law discriminatory and overall problematic on statutory and constitutional grounds?  Particularly looking at how they treated providing the more strict ids. Now, we can say, though now we might add a few names, that "Simply put, Justices Alito, Scalia and Thomas do not value the right to vote as strongly as the other members of the Court," but it's best to do so based on an opinion, not (accurate it might be) tea leaves reading of orders. 

This morning's action -- my leaving open mid-afternoon the chance the USSC (akin to "take out the trash" Friday politician news) would have late day orders was prescient if not quite expecting one early morning Saturday (when did this EVER happen?!)  -- does take the cake.  The best case is that this fits in to the "don't change rules late in the game" rule that has thus far (if again without explanation) applied to appellate rulings that went in both directions. This is so even if as noted by the dissent that such "foolish consistency" is ill advised. But, guys, at least explain yourselves.  Justice Breyer's silence (see also in the post-Hobby Lobby order) is particularly annoying, if perhaps part of his long term prudential strategy.

I have noted that not taking SSM cases is defensible and recognize how these orders/stays policies work.  Nonetheless, there is a point when it is taken too far. I was annoyed when the dissenters didn't state why they were for a stay of more than one execution recently, at least once probably because of concerns with protocols. It wasn't just one case. At some point, even if the USSC won't take the case, the dissenters should have made their concerns know. The importance of voting rights, including public opposition to Citizens United, makes this a special case too. 

The break of dawn timing adds to what I see as a black eye to the Court. Enough!

Then They Came for Me (aka "Rosewater")

The Iranian-Canadian journalist Maziar Bahari took part in a joke segment for the Daily Show, not knowing it would be used as part of the "case" against him by Iranian authorities after the 2009 elections. Jon Stewart later directed the akin to a novel account of Bahari's four months of hell in prison, a film coming out next month entitled Rosewater.

Scotus Watch

Cuomo challenger Zephyr Teachout argues this week's dentist case raises important corporate power issues. She also opposes the proposed re-destricting commission on the ballot as not truly independent (seems less constitutionally problematic than a case USSC will hear) in NY this year though I doubt many know it (just found out myself). Also, a border dispute and two other technical cases were heard. Let's see if we have another late day order.

Enough: Our Fight to Keep America Safe From Gun Violence

Click photo for recent article on duo, here is their sane gun policy organization and I liked their recent book though wish there were some sort of end notes.

Gradualism Has Its Place

Update: I appreciate this nice crisp four page opinion dealing with SSM in Arizona -- once the 9CA ruled, no need to belabor the point.  Cf. A twenty-something ruling from Alaska. Hopefully, other district judges, as needed, follow the lead. Cf. today's a sixteen page Wyoming deal.

Various people sympathetic to same sex marriage are concerned that the USSC didn't grant cert, Prof. Dorf taking a somewhat different tack here though noting in comments that he also thinks the importance of the issue or as I quoted from their guidelines:

(c) a state court or a United States court of appeals has decided an important question of federal law that has not been, but should be, settled by this Court, or has decided an important federal question in a way that conflicts with relevant decisions of this Court.

Another professor merely provided a quote on the "vices of passive virtues," leading to an extended discussion on various issues including racism. The citation of Naim v. Naim -- a much criticized punt by the USSC in the 1950s when it wasn't ready to decide interracial marriage. This led me to add a few words. The below is a somewhat edited version.

I think the "common law" idea of case by case development of constitutional law (Judge Ginsburg supported this during her confirmation hearings, using an example of how her circuit did this to decide 4A questions bit by bit), to "‘get it right’ and ‘keep it tight.’" Bottom line, though at some point the USSC should take the SSM cases, but push comes to shove, one year after Windsor, it is not horrible that they are not.

Gradualism can leave in place in the short term horrible law. But, Brown v. Board et. al. showed turning horrible law around is akin to turning a tanker. Also, though we see racial discrimination as a united whole, it simply was not in the past. For instance, even Justice Harlan, the dissenter in Plessy, felt public school segregation different:

"Of course, what I have said has no reference to regulations prescribed for public schools, established at the pleasure of the state and maintained at the public expense."

BEREA COLLEGE v. COM. OF KENTUCKY (racial integration in a private college not protected).  And, as Justice Souter noted, this is both not surprising or even shocking on a basic level. The law develops over time as society does. Justice Jackson in an unpublished concurrence to Brown noted that over time education became so essential to citizenship etc. that the old path was no longer sound. It was no longer mere "social" in nature. And, even there, as seen in Loving v. Virgina, "social" discrimination was no longer seen as acceptable. The original understanding on the whole, with limited dissent, was that interracial marriage was not covered. Harlan went along with the sentiment that "evenly applied" race based laws were acceptable there.  As were certain race based programs.

There is also the prudential concerns about the strong public reaction to overturning such bans (miscegenation perhaps first came to the fore as a major public bugaboo during the election of 1864, used against Republicans, most of whom joined with Lincoln in denying they were for the right to that sort of thing).  Constitutional principle might eventually lead to broad decisions but it is not inappropriate for the Supreme Court, especially with its discretionary doctrine, to not decide all things at once.

Or, one year after they decided a more narrow ruling.

See also: on the "okay to wait" side though it overargues the Roe point. Still, though question just how much it would have changed things, there is a strong argument to be made that they should have went somewhat slower.  As to the second point, I say again -- if the USSC took a case, probably the matter would be on hold for eight months. Wonder how newly married SSM couples in various states will feel about that. 

More on Reproductive Health News / 1A Issues

So when the Supreme Court said in its opinion that the Administration could extend a religious accommodation and that the effect on Hobby Lobby employees would be “precisely zero,” the Court was wrong—its employees are likely being denied coverage right now. Although that gap is probably temporary, it could result in serious, irreversible financial and personal harm to women.

Just to "update" how Hobby Lobby burdened employees (and their religious beliefs -- they matter right?) because their employers in the public sphere have a different religious belief.  As cited in an article linked in the piece, a law "restoring" things to past law would seem to guard against this sort of thing, since:

“[w]hen followers of a particular sect enter into commercial activity as a matter of choice, the limits they accept on their own conduct as a matter of conscience and faith are not to be superimposed on the statutory schemes which are binding on others in that activity. Granting an exemption from social security taxes to an employer operates to impose the employer's religious faith on the employees.”

But, other than trying to paper over the burden, the majority here (though Kennedy's opinion clouds things) makes past case law somewhat irrelevant. The Religious Freedom "Restoration" Act really isn't about returning to past law even though "the compelling interest test as set forth in prior Federal court rulings is a workable test for striking sensible balances between religious liberty and competing prior governmental interests" is cited in the law itself.  Just what the law overall requires is unclear, but on balance, pre-Smith case law is a sound guidepost here.

The above is posted as a reminder and also because of a recent post at Balkinization, which also has an interesting ongoing series on public health and the First Amendment.  I agree with the argument that commercial speech deserves protection though intermediate scrutiny might be warranted in some cases where ideological or other questionable grounds are the "purpose or effect" of regulations.  A recent post addresses a shift in abortion law where conservative medical facts (court "facts" are troubling things) are cited as "objective and neutral" things, somewhat different from the days of Blackmun authored opinions.  The "abortion regret" issue is cited. Putting aside that, yes, facts can be ideological, the bottom line there to me is that we sometimes regret choices we have the right to make.

The answer there was that fully informing the woman, not removing the right to an abortion procedure that at times would be the right legal or moral choice (the latter tellingly noted in passing in one of the oral arguments).  It can be a tricky thing, especially in the context of regulation of professional speech, to hold that certain things are violations of the First Amendment (or the right to choose).  This is true even if we are talking bad policy. I do think the ideologically slanted nature of these things are problematic on speech grounds, even if Casey held the state can favor life here.  This is so even though I agree with Stevens/Blackmun there that "informed choice" and slanted coerced physician speech to push the choice in one direction favored by certain abortion views is not the same thing.

Things like forced sonograms are a problem (icky teeth image) for other reasons too, including adding costs and any physical invasions required.  One concern cited is the psychological harm to some women and Prof. Colb, who is somewhat sympathetic to some sort of informed consent rules, finds this in particular makes forced sonogram images unconstitutional. The costs of various requirements, especially early in the pregnancy, is a problem here as well.  Nonetheless, especially given current law, requiring clinics for second and third trimester abortions to provide the option would be different. Some abortion clinics do this anyway.  It would truly add an objectively neutral criteria for true informed consent and promote "life" in the process as well.  There are ways to do this that are not inappropriate.

Finally, to remind, the Supreme Court temporarily stayed part of an oppressive abortion regulation from Texas (Linda Greenhouse provides hypos) with reproduction rights advocates rightly hesitant to be overly excited.  The lack of good faith here as to applying neutral medical rules or applying precedent for that matter is telling.  The ideological nature of the legislation underlines that even commercial or professional speech and other regulations at times should be taken with a grain of salt.*

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* It is notable that in Casey as well as the gay rights cases, we hear tell of "purpose and effect" of governmental action.  This was seen as notable over a hundred years ago in the Yick Wo case, where an allegedly neutral law was applied in a discriminatory way.  It is a realistic way to uphold rights.

R.I.P. Elizabeth Peña

Two gems -- Lone Star and Shannon's Deal. R.I.P.

You're Not You

The NYT review was mixed as was the Rotten Tomatoes & the leads were intriguing. But, Hilary Swank has had great/serviceable/bad & this is more in the last column. The actresses deserve better material in this MLS drama though hey look Ed Begley, Jr. has a neat cameo.

Height/Weight

Interesting photos of various body types.

Legal Quickies

Replacing lethal injection with the firing squad, perhaps along with nitrogen gas, unwanted for various reasons, but perhaps better as a method. You know, it still being wrong and all. USSC policy to ban speech on its front lawn was flagged as hypocritical and the application to buttons etc. suggests, yeah, critics have a point. Abortion rights without apology.

USSC Orders

 And More:  Checking Twitter, which is getting a bit too addictive, I see that at least for the time being, Texas' anti-abortion law -- in part -- was too much for Kennedy (three justices dissented from a partial stay, but surely his vote was key here). One is wary hoping too much here, but it's something, especially for the thirteen clinics that can re-open though given it once had forty-one (per Scotusblog) suggests only so much.

The biggest news this USSC term was the decision not to hear any SSM cases, which sneaked under the radar via the Order List that provides a list of cases they have decided not to hear. If we go to the link and check out today's orders, there is nothing quite as exciting, but a few of some interest. 

 A major change -- at least in form (the actual effect on sentencing results is debatable) -- in recent years is the requirement that juries determine facts used in sentencing.  The "Blakely/Booker" line of cases.  The result was a bit confused since the USSC split on the question (Breyer/Kennedy was no big fan of the change while Ginsburg supported it, but joined in a somewhat confusing split the baby solution) and Stevens/Souter leaving the Court matters since they were on the "pro" side.  As with other matters, the conservatives are split and Sotomayor/Kagan might not be as supportive.  Thus, this denial is not surprising, nor the Scalia/Thomas/Ginsburg dissent. More here with a note on another significant criminal rights denial.

There is a SSM related denial today.  Yes.  A guy with past history in this sort of stuff tried to intervene in the Utah case because he wants to marry a machine. The last link provides the actual brief -- one hopes this guy, a lawyer, is not serious with this crackpot type stuff.  It would be a lot less fun if this guy was just some sort of unhinged person though this Duck Dynasty defender also has been charged with harassment, so maybe so.

The USSC also rejected a challenge to a California law against the sale of foie gras, the sort of food like veal that even meat eaters probably often are strongly against. The strongest federal question was that it somehow interfered with interstate commerce in part since in burdened out of state producers. This and other challenges were denied with no "liberty" interest in consuming the stuff raised, going by the opinion.  As noted by Justice Blackmun, who supported the RFRA friendly approach to free exercise, animal welfare laws can stand even in the face of such claims.  His clerk that flagged that issue?  Sherry Colb, who later wrote this. 

And, there are other footnotes, but those might be highlights. And, now to scintillating orals involving border disputes and this:

Whether, for purposes of the state-action exemption from federal antitrust law, an official state regulatory board created by state law may properly be treated as a “private” actor simply because, pursuant to state law, a majority of the board’s members are also market participants who are elected to their official positions by other market participants

Oh, the 6CA still hasn't handed down their SSM rulings. 

Cruel and Unusual: The American Death Penalty and the Founders' Eighth Amendment

I gave three stars to this book [extended "e-notes" provided] over at Amazon.  As a whole, a lot of good material on founding thought, meaning over the years and an overall (to me seems a bit non-germane to specific purpose) brief against the death penalty. It could have used an editing job and at times was too heavy-handed, but good used book pick-up. Meanwhile, good summary of race based polices in the Civil War Era (if an easier call -- see comment here) helping to show affirmative action isn't per se unconstitutional.

SSM Comes to Alaska (Click For Opinion)

NFL Sunday

Dallas upset Seattle, Eagles currently crushing NYG and Pats won against a team with a shot at beating them. Great. Jets had a chance to tie, went three and out and Denver gratuitously tacked on a TD in the last 1/2 minute after a failed pass gave the Jets "a shot" with under a minute. There was a tie (normal range FG missed at final buzzer) and there still are two unbeaten teams (close games, one with onside kick, but a LONG FG was blocked). TBC?

So, a Columbus Day Parade is going on down the block ...

John Oliver's video doesn't come up, but others called out Columbus Day. The best path might be to use it to ponder the complications of the situation, of 'our' history. It is also wrong to single out "Columbus" here, but can be a symbol of the excesses of the times. Any half-way credible description of the history is at best unpleasant, if not quite as extreme as the perspective expressed here. The "dog food" bit is news to me, but often cited.

The Trouble with the Truth

Lea Thompson/John Shea shine in this in effect two person play of a movie -- good DVD find! Other than a "fuck," not sure why it is "R" rated. Also, the Icelandic film Astrópía about a cutie who needs to work in a comic book store but gets into RPG etc. was pleasant. Good use of animation and a nifty (if somewhat confusing) finale imagined as LARP.

"The gay marriage cases and federal jurisdiction"

I appreciate the gender discrimination argument etc., but in Ivy tower originalism news, this is pretty ... well silly. The idea that Loving itself would not have been properly decided if it was only a civil ban (like custody matters?) is telling. Like the federal power argument in Windsor, the gender argument (if much stronger) got little support in the courts.

Voting Litigation Update

See here. Election Law Blog explains certain somewhat opaque but now consistent USSC orders regarding last minute appellate rulings as well as a lower court ruling striking down a Voter ID law in part as a sort of illicit "poll tax." Given the costs involved, some (as do I) do see it that way, but it has gotten at best limited acceptance in various court opinions.

Yum

Got these on sale and pretty good -- I used a normal hot dog roll, spicy mustard from the Chinese restaurant and assorted vegetables (including a sliced carrot).  Microwaved it. 

GMO Labeling

[It is only somewhat tangential to the below, but this essay on how the Ebola outbreak (as applied to this country, "outbreak" is not appropriate, but there is one in Africa) shows how anti-government rhetoric can be dangerous is useful overall.  The author is an economist and notes how in society a "free market" still is one regulated by the government in a range of ways.] 

I disagree with the sentiment that GMO labeling laws are misguided because it gives "too much information" and misleads the public. As a participant at a blog in part concerning science issues noted recently:

GMOs have, at best, not been proven harmful, which is different from having been proven safe. GMOs have not been tested for long-term health effects, much less been tested with independent oversight, and each GMO is different, so each new GMO brought to the market must be tested. Plus this statement makes no mention whatever of the increased use of pesticides with many GMOs or the evolution of pesticide resistance in plants and animals as a result of that increase pesticide use.

As I noted in comments, even one of the links provided in the piece provided some reason to be concerned about GMOs, suggesting to me that it is acceptable if people wish to know about them being in their food.  Prof. Adler also was on the case, guess around a year ago now, and he provided links that again suggest at least for certain people GMOs might have negative effects.  They are still in their infancy and some precaution principle is appropriate.  The "has been around for centuries" bit:

true to a certain extent -- for example, a pluot is a human created plum-apricot hybrid -- it is misleading, both because the techniques of genetic engineering are different from those used by hybridists and because those techniques allow the introduction of genes from one species to a very distantly related species. 

One comment in response the original post made basically a right to know / democracy argument that is not merely answered by citing science. I think unreasonable labeling has problems as a matter of policy, but there is something to this.  Also, there are basic "right to know" issues here and GMOs are not just a matter of science, but value laden policy:

The reasons for developing GMOs in the first place were all value laden, whether you think those reasons were making money for large corporations and their shareholders, feeding the hungry, developing new and exciting strains of food, or reducing pesticide and herbicide use.  Furthermore, the question over whether to label is a question about the public's right to know what they are eating -- again, a value-laden issue.  Even if it turned out that GMOs were the best thing since sliced bread, citizens arguably have the right to the information necessary to decide for themselves if they want to eat them.  Does science tell us what our rights are or what our values are?

I have read up on this subject to some extent, including a few books for the general public, and my gut view is that GMOs as a whole are safe but that there are various possible concerns especially perhaps in certain cases (e.g., certain GMO products might have negative effects on health or the environment to some extent). The penultimate link includes a comment with a mini-bibliography.  And, the situation is still in flux.

Overall, seems to me, that labeling is acceptable, including mandated by the government. Voluntary labeling is suggested. That's fine, but doesn't seem like every company wants to do that or calls for this would be redundant and opposition a tad overblown. Labeling also would -- like kosher and halal labeling -- help those with moral or religious opposition. Why not inform those given safety is not assured, even if "safe" some restraints and pressure to do so might be helpful and it would help people make choices following their own personal values?

A libertarian might even support such laws since it advances freedom of choice though some might say the market should do the work there. So, even some of them might sign on! Anyway, I think labeling is a good idea.  It is at least not harmful.

"Of Meat and Manhood"

This post is an interesting discussion of how a law article led to a lawsuit and the value of academic freedom. The article itself is interesting -- how things like being a vegetarian can result in gender discrimination. Given I am both a male and vegetarian, you know ...

SCOTUS Ipse Dixit

SCOTUS makes two key voting rights decisions without comment except for note of four dissenting in one, an actual written dissent by two justices in another. I have seen probably more than one justice note that the USSC shows its work. Sometimes, not so much.

RIP Sarah Goldberg

Obituary. Meanwhile, the less common "coming soon" R.I.P.

"Scenes from Daily Life in the de Facto Capital of ISIS" (click for story)

Giants/Cards join Royals/Orioles

Kershaw is 0-2, both sides falling apart in the seventh, so Cards (sigh) are in. Nats knocked off too so the other repeat player Giants (it is an even year) sets up a probably good baseball but eh for me personally match-up. One good championship series is good enough, I guess.

9th Cir. Rules on SSM (Edited/Updated)

And Also: Continuing his trend of intellectual guests, Colbert used the First Monday in October to bring on a law professor's whose article on use of facts in amicus briefs have received some attention. Dare I say she also is pretty cute? The article and others can be found here, showing a past interesting in court use of facts.

It might take a little while, but a handful of states not directly involved should have SSM given they are in the same circuit as yesterday's denial. The same holds for any state not directly covered by today's totally unsurprising 9CA ruling. One count is thirty-five states now or will soon have SSM. The take down of the "traditional marriage" claim is my favorite part of the latest ruling.  It rests on equal protection though the concurrences also rely on right to marry and gender discrimination arguments.

It is not really surprising that Judge Reinhardt would "concur without reservation in the opinion of the Court," since he wrote it. True enough examples can be found where primary author dissented on some point.  His concurrence is brief; the gender concurrence is longer than the majority, perhaps because it is more unique (various judges offered it as did others, some of whom think it pretty obvious, but most do see it as a sexual orientation manner -- I think the two are connected). 

There is some facial obviousness to the gender argument -- you can marry a person, but only if they are the right sex.  You don't have to show love or sexual desire to marry. Some homosexuals, for whatever reason, along with bisexuals and asexuals etc., have married under the old rubric.  But, the specific harm and motivation is clearly largely a matter of sexual orientation. Likewise, gender discrimination brings with it a pre-set heightened scrutiny requirement.  Still, again, the concurrence is sound, in large part because the discrimination on sexual orientation grounds is also based on gender stereotyping.  Sex and sexual orientation are interrelated. 

Next up should be the 6CA and it looks close to some. Baker v. Nelson is a risible ground. Judge Sutton, if honest, shouldn't use that fig leaf.  I kept on saying yesterday (on Twitter etc.) that it seemed curious to me that the USSC ruled before the 6CA did, since that circuit might create a circuit split and should rule pretty soon unlike other circuits. One person told me online, without sourcing, that one opinion is that the USSC was sending a message to the 6CA to decide, the 6CA apparently possibly waiting for the USSC to act on the other appeals first.  Maybe.  If the circuit was reading tea leaves, even if denials aren't supposed to have legal effect, I think they or at least Judge Sutton got one.

I guess the logic of them eventually taking a case when a circuit rules the other way makes sense and in the long run is okay, but this shouldn't be it ... if Sutton is going to rely on the Baker v. Nelson "precedent."  Flimsy business.

Winning Senate Matters For Various Reasons

Lawrence O'Donnell was perhaps right last night to say the key point in winning the Senate are confirmations, but didn't do enough to push back against the "won't matter much" crowd. Even in regard to legislation, the net result of a split Congress plus Obama will be better. Obama can't veto everything. He has to pick his spots. A Republican Congress will push things right, including in key budget matters often largely out of the public view.

"Photo ID is NOT Required to Board an Airplane!: 7th Circuit Includes Blatant Falsehoods in New Opinion on WI's GOP Photo ID Voting Restriction"

Great take-down with links to other discussions regarding a "horrendous" 7CA ruling.

First Monday In October (Film)

It was on last night on one of those "I have that?" channels. I talked about it years back.

Sports Update

I really don't like the Redskins but last night's game was pretty depressing -- Seattle kept on giving them chances (THREE TDs, that I know of, were called back because of penalty), but down to the last failed stop, the Redskins kept on blowing it. The Dodgers has an uphill battle. Again, not gigantic fans, but really don't like Cards and Nats. Giants, knowing how to play, should win one of two. If not, it would be really annoying.

"Seeing The Mountaintop"

I basically agree with Andrew Sullivan that the overall strategy used to protect same sex marriage was correct (law changes as society does) though the "power of federalism" here includes striking down state marriage laws. I also see the prudential value of the denials. Still wonder about not waiting for the 6CA, which unlike 5CA or 11CA, seems close to deciding.

First Monday: "Wait ... did they really do that?!" Edition

Today's the official start of the 2014 USSC term and there are some improvements on its website. It wasted no time schooling the 9CA on a habeas claim via a per curiam. But, the truly surprising thing is that they denied cert. in all the SSM cases. RBG hinted at this, but the confusing thing is the 6CA didn't rule yet. Why not just continue the cases until then?! They very well might eventually rule on it, but it is really unlikely they will uphold the bans now. And, realistically, this is a big signal to lower courts (such as the 6CA) of this very fact.

MLB Playoffs

Kansas City is the star so far though the Giants, including yesterday's marathon (the Nats take out a cruising ace whose last performance was a no-hitter, so their closer can blow another one), are showing it's an even year. Some questionable managing by the 0-2 teams plus Dodgers, who had to score late to avoid being 0-2. Right teams winning so far imho.

Rev. Joe: Abortion, Islam and the Need For Common Ground Thinking

The Abortion Myth: Feminism, Morality, and The Hard Choices Women Make by Leslie Cannold (2000) at its core argues that the right to choose an abortion basically boils down to trusting women to make the moral choice whether or not to be mothers.

I talked about this book a few times, the two links just primary examples.  The primary title has sort of a pro-life flavor, perhaps, but the author is more assuredly pro-choice.  Nonetheless, she sees abortion as a moral choice.  See also, the book linked up above with a pregnant woman on the cover, the woman who wrote and collected the abortion stories inside.

The overall argument made in The Abortion Myth is that women do not just treat abortion haphazardly, but generally see it as an important choice, one that includes a moral dimension involving their responsibility to their children. Some quite readily accept the embryo (as it usually is since most abortions occur before the "fetal" stage, though "fetus" is often misleadingly used here) etc. is in some fashion a "child" or "human," but basically not a complete one.  Even pro-life participants at times appeared to think entrusting their "children" or what have you to others would be worse than abortion.

My overall concern here is to think outside of the usual boxes of each side, which are often more connected then they might think. A comparable thing is seen in the same sex marriage debate. Marriage "means" something apparently that  eliminates one group from being involved, but it turns out that writ large marriage can include many groups. It is like the term -- depressed a little bit each time it is used this way -- "traditional marriage" that is used to mean part of that institution. Opponents of SSM are no fans of various aspects, on the average, of "traditional marriage," or at least realize "marriage" can and does include things not present then.  Except here. This suddenly is the sine qua non.

I think there is some room for common ground though there is clearly going to be a large field of debate and dispute. So, I think many choices involving marriages and child-bearing are bad, in fact horrible, in various ways.  A really blatant case would be let's say "octomom," but no need to address IVF to raise concerns about such matters.  But, the right to let's say marry someone after knowing them two weeks or who is a bigot is not generally opposed. Abortion is a case where suddenly things change.

The above video in part concerns Bill Maher's comments on Islam and liberals who don't do enough the attack the extreme forms. Not sure really there is not enough people out there, including those generally liberal, who don't attack extremism of all types. Obama himself -- I heard it -- mentioned that what ISIS is doing is not the sort of thing honorable believers would do. Maher is something of an insufferable character, including on religion, even if from time to time he says something useful. Azlan is right to fear overgeneralizing, especially from those -- unlike Maher -- who is not also generally anti-religion as a whole.  There is room for middle ground there, without bashing religion generally. And, I have seen lots of "liberals" quite consistently against religion.  The wariness of some to not target excesses of minority groups is noted -- it isn't just an issue when religion is involved -- but it seems a minor sin.*

[As an aside, don't know if they do that consistently, but liking that interruption / challenging for clarity/debate back/forth between the hosts and the guest there. That is how it should be done.] 

Going back to abortion, found this writer, who uses abortion as a sort of case study to promote her "theological" and "feminist" views. She writes as a Buddhist feminist (also has written about "bis" of various types and disability issues) and comes at being pro-choice from a somewhat different angle.  One concern of Colker is to promote a conversation and respect the concerns and needs of others you might see as in opposition to your views, believing we are more united than many think. I think she would appreciate the bottom line of book cited above, concerned as she is about recognizing that abortion can often be traumatic.  Some wish not to admit this since it might enable the opposition, but marriage, e.g., can be traumatic too. Does this mean we do not have a personal right to choose and even make mistakes?  Mistakes that often strongly negatively affect others?

Colker takes certain things from the other side at face value without changing her view abortion should be protected (though at one point she seems to suggest in an ideal state it might not be, at least in some fashion [after the first few weeks?] -- it's underdeveloped -- one with true equality and support for women and mothers). So, yes, life is precious, but you don't promote it by criminalizing abortion (the example of Latin America can be cited here).  Birth control shows respect for life by not bring it into the world when there isn't the support/love necessary to truly honor it.  Counseling those who might have an abortion is positive, but mandatory counseling can be counterproductive.

And so forth -- basically, even if you are "pro-life" (she accepts the labels), ending Roe v. Wade is not the answer.  That is, except along the margins in various ways.  So, certain regulations -- even if they interfere with "choice" or "privacy" in some fashion (the author's somewhat communitarian views finds "privacy" a bit dubious ... but is our Constitution not more individualistic on that front ... protecting "personal" rights?)  -- can be acceptable.  Still, writ large, abortion rights would be protected, including funding, which would be necessary for truly equality in regard to the poor and so forth. So, many "pro-life" sorts might find her message, including her respect for religion, acceptable only so far. Nonetheless, there might be room for more common ground, or at least a different view of things.

As with Ruth Colker, abortion for me is a sort of case study -- I have been so fascinated about it for so long in large part because it covers so many bases. Gender issues, sex, religion, privacy, constitutional issues etc.  As with marriage and other issues, looking at the big picture, trying to find common ground (general principles often are flexible -- so no need to paint all "religion" as anti-choice or anti-feminist -- individual choice in religion, e.g., is often a basic principle for believers) and not merely self-righteously and narrowing going in one direction is important.

And, to me more productive, interesting and less stressful in the long run. Well, on average.  Life is fairly complicated, after all.

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* It's perhaps useful to read some comments arising from one Maher appearance on the liberal leaning TPM page. Many are not overly impressed with Ben Affleck here, but I'm not really expecting Ben Affleck (as compared to Reza Azlan) to be a great debater on the point. Respect his talent as an actor/director/etc. mind you, but still.  There is Nicholas Kristol on board here though but his calm rejoinders are so boring, you know?  But, Affleck's concern that not a "majority" of Islam supports violence etc. is on point. It is akin to mixing Christianity itself, and some do, with homophobia and the like.  It is taken much too far by some.

A key point of the video provided is when Sam Harris says "Islam" is the problem. This moves a step part Bill Maher's concern for the radical aspects of Islam.  BM at one point, e.g., is upset that Obama et. al. don't want to call ISIS "Islamic." Well, fine. Those who kill doctors are self-professed "Christians."  The argument is ultimately that they are in no sense "true" representatives of their faiths. A somewhat dubious thing for let's say a President to say (theologian?), but fairly acceptable.

I think it is fair to say that there is a strand of Islamic thought that in certain ways can promote violence. But, history has shown this to be quite true of Christianity and Judaism as well.  "History," especially as to the second case, and very likely the first, is misleading in that today it encourages violence. See, e.g., a major threat to any chance of settlement in Israel/Palestine, the belief that settlements are mandated by God somehow. Take the citation of censorship. Many here support censorship, so citing the cartoonist controversy as "Islamic" would be misleading.

And, as Reza Azlan says, it is often a regional problem -- Christian African nations, e.g., promote FGM. To be fair, going further than the TPM segment, the ten minute segment here is more useful. But, the focus on "Islam" is still problematic. The promotion of violence and intolerance is ultimately a societal problem. It is present in other developing countries of an non-Islamic nature. The trouble spots here are Islamic, but Harris' framing of it an "Islamic" problem as if belief in the Koran etc. is the issue is misguided. It also is counterproductive in the spirit of the text.

Ceremonial Deism

Justice Souter's opinion announcement and opinion includes a rejoinder to the "you can favor God but not Jesus" argument. The 1A sorta "favors" religion by protecting free exercise of religion specifically and DOI as a whole isn't just deist ("appealing to the Supreme Judge" etc.), but overall the essay is on point except it isn't just "Scalia." Not quite there alert!

"CA Becomes First State To Ban Single-Use Plastic Bags"

See here. I personally am a tad sick of how many plastic bags I get, though a limited number is good for collecting recyclables and the like. But, that's handled by Chinese takeout. As to cat trash, I find the little paper bags I get at the bakery do the trick. And, nice to see Good Luck Charlie show reusable bags a few times when the parents are coming from the market.

Leaf-Hunting Season Begins etc.

One sort of hunting I can support. Meanwhile, Justice Stevens reviews Judging Statutes or "Why Scalia is Wrong." And, another great game from KC that ended pretty late.

Slightly Cropped

Edited photo from yesterday -- religious freedom is important.

"On Hobby Lobby, Ginsburg Was Right"

The great Oliver Wendell Holmes once observed that important Supreme Court decisions “exercise a kind of hydraulic effect.” Even if the authors of such decisions assert that their rulings will have limited impact, these cases invariably have a profound influence.

I share this concern of the Hobby Lobby ruling -- in theory, the logic might work, but fear it will be applied badly and furthermore selectively. It is too broad of a rule for it to be otherwise. BTW, a bit shallowly, the women in that picture are cute. Good P.R. move.

KC's Death Mid-Game ... Greatly Exaggerated