Mets Update

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

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

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

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

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

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

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

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

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

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

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

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

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

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

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

Indiana RFRA: What's The BFD?

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

SCOTUS Watch

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

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

Pretty Woman At 25

Interesting discussion.

State Anti-SSM Brief Day

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

Happy Birthday!

Young and Hungry

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

Economic Libertarian Constitutionalism

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

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

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

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

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

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

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

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

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

---

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

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

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

**  More at the Dorf on Law comment thread.

Supreme Court Watch: Breyer Edition

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

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

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

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

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

Those little snapshots of SCOTUS history are worth noting.

Ted Cruz Can Be President

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

The Book of Life

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

Toolbox Murders

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

Happy B'Day Megyn Price (b. 1971)

Alabama v. Equality

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

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

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

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

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

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

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

The idea marriage is merely about procreative relationships is off:

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

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

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

Legal Stuff

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

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

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

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

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

Princess Jellyfish

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

TV Watch

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