First off, a check of my posts over at the Slate fray showed a reply that re-considered a strong disagreement with my stance on congressional subpoenas etc. here, thanking me for the discussion. I thought said person did not really respond to my arguments before, but perhaps it was in effect a matter of quick replies given shortness of time etc. I don't know, but appreciate my words had some effect. I do hope such fora, including my role in them, provide a useful discussion device that helps both sides.
Anyway, the top legal story in the NYT today might be one discussing the breadth of New York City's efforts to infiltrate and document possible protesters to the 2004 convention. I have on my wall a personal account printed in the NY Daily News from that time entitled "My 47 Hours in hell." It discusses the lousy conditions of the cells (ad hoc sorts of things at Pier 57) where protesters were held. First Amendment lawyer Floyd Abrams' book is but one source where we can understand how the First Amendment was threatened under "American's mayor," Rudy G. Things like that ... not the marriage biography of him and his wife ... is what should concern us. (Again, Rudy v. Hillary scares me.)
Seems that things are only somewhat better now ... a kinder and gentler sort of threat. One which some fear going near certain protests, since one is liable ... outside of "free speech zones" (look at the protesters! oh ... that one got too close to the cage line!) ... to be arrested. The article spells out the increased post-9/11 efforts of the city itself to keep track of possible harms from such events. I am sympathetic, up to a point, since we are dealing with an influx of people, a few of whom do want to commit civil disobedience. But, honestly, these are not the people I fear most these days. And, the efforts against them, including those infamous "files" on people who did nothing illegal, are quite troubling.*
Another important article concerned an upcoming case involving home health workers paid through an agency. The matter involves a statutory interpretation -- again shared by the NY mayor -- that holds that such people are not covered by overtime rules. The concern is that there are only a limited amount of funds available for such workers, often paid by public funds, though the case would not involve those not paid through agencies. These -- like babysitters and the like -- would still not be covered.
The matter eventually goes to statutory interpretation, but it still underlines the number of important non-constitutional issues the federal courts must handle. Likewise, it seems patently unfair that such individuals would not obtain such benefits. As someone who has worked through agencies myself, and obtained time and a half for jobs much less stressful than this type of work, it surely seems a tad bit ridiculous. But, many will tell you that current policies do not properly honor such people, many who are pushed into the work given stricter welfare rules. Like "ordinary" sorts whose spouses suffer thru cancer, their options are less ideal than the likes of the Edwards.
A final story is more of a special interest sort of thing, involving an adult incest prosecution in Ohio. The NYT also covered this story, but this link provides a good summary as well. As the one dissenting vote in the ruling assumed, the ascertained interest of familial unity is not really why this prosecutorial path was taken. As is usual in such "consensual" sex cases (see also fornication, sodomy), it was used "as a means to prosecute a strict-liability, slam-dunk sex offense that does not allow the defendant to present any evidence regarding the consent of the victim."
The woman accused her stepfather (22/44) of rape, but it would have been somewhat hard to prove, so they took this path. The man got a somewhat lax sentence, but also the mark of Cain: "sentenced to 120 days in jail, three years of community control, 250 hours of community service and was designated a sexual offender." He made a statutory and constitutional change. The dissent (it was 6-1) focused on the former, arguing "Imbued in [the statute] is the notion of parental, or quasi-parental, responsibility and control over the victim."
One can imagine, especially with difference in ages between spouses, where the two individuals are about the same age. Is this the intent of such statutes? In the past, probably, though this one was a more modern version updating earlier regulations. I think there is a valid case, not that Lawrence v. Texas would necessarily take you that far given its "rational basis" language would necessarily take you there (its slam dunk nature makes it harder to apply in trickier cases, as it should, but see the sex toy case not covered). This is a closer case, surely, even if the rape allegation technically is not at issue.
"Incest" is one of the bugaboos raised when same sex relationships arise, but the word simply is not a slam dunk scare tactic. This is seen by looking at the breadth of its use in the Bible as well as the second cousin marriage of a top presidential candidate. The majority here noted that: ""traditional family unit has become less and less traditional, * * * the legislature wisely recognized that the parental role can be assumed by persons other than biological parents, and that sexual conduct by someone assuming that role can be just as damaging to a child." But, this surely can be taken only so far, especially when "child" means someone twenty-two.
I think the authorities should have been forced to try it as a rape case. Yes, as the majority noted, he could have divorced his wife and then had a chance to have these relations. (You know, relations without relationship.) It is not exactly a major civil liberty violation or anything (the tragic fire in the Bronx, killing several children, also raised another matter -- the Mali immigrants were practicing polygamy), but it is troubling enough to be worthy of note.
But, as a legal analyst noted in the NYT, we probably shouldn't worry too much until it is used in a clearly consensual case ... still, that assumes guilt. Is that kosher as well?
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* The article online had various links, but apparently ones often automatically generated. Thus, the link to "Under a United States Supreme Court ruling, undercover surveillance of political groups is generally legal" did not go to the ruling itself, but to the paper's general coverage on the Court.
I emailed them suggesting this was problematic. I wanted to know the name of the ruling itself; ditto a case about incest. [STATE OF OHIO, APPELLEE, v. LOWE.] I found simple emails of this sort often received nice replies, though don't quite know how useful they were in the long run.