Pro Bowl (& Go Saints!)

Well, the AFC QB situation was a bit lame (Houston QB was good though) with stars sitting things out, but they won all the same. But, we had one more missed average length field goal in January.

Obama Question Time?

Though honestly I don't really want to watch an hour plus of the back & forth, Obama going up against the Republicans on television was impressive. Digby is right to be wary, but now he can say he tried. Seems like a net positive. Still, pass health care, damn it.

A question of power?

And Also: A convincing argument that war is not the ideal path to fighting terror. His replies in the comments, btw, are representative of his forceful but polite approach that makes him a pleasure to read.

One thing that is interesting here is the emphasis on corporations as "persons" versus the issue of governmental power overall. A case about a century ago suggests a possible difference. Ironically, given some opinions on the sentiments of the era, it noted:

In creating a corporation a state may withhold powers which may be exercised by and cannot be denied to an individual.

The dissent suggests, true or not, there are limits:

There is no magic in the fact of incorporation which will so transform the act of teaching the two races in the same school at the same time that such teaching can be deemed lawful when conducted by private individuals, but unlawful when conducted by the representatives of corporations.

Yes. The law in question, the one that limited corporations in particular, denied incorporation to those bodies that promoted the integration of the races. The Court later determined that when this inhibited sending a student to an incorporated religious school, it was unconstitutional in the case involved, an early security of the right to privacy:

But the injunctions here sought are not against the exercise of any proper power. Plaintiffs asked protection against arbitrary, unreasonable and unlawful interference with their patrons and the consequent destruction of their business and property.

Similarly, person or not, the state cannot selectively benefit certain types of corporations based on the religious messages of their ads. The government, pursuant to the 1st and 14th Amendments does not have the power to pass such laws. It might be determined that corporations are such that certain types of limits, including related to speech, are within the state's power. But, corporate personhood alone is not the test. Similarly, the limits to state power is in some fashion related to the effects on humans, as shown by the law banning incorporation of integrated schools.

And, as noted in the latter case:

Appellees are corporations, and therefore, it is said, they cannot claim for themselves the liberty which the Fourteenth Amendment guarantees. Accepted in the proper sense, this is true. But they have business and property for which they claim protection. These are threatened with destruction through the unwarranted compulsion which appellants are exercising over present and prospective patrons of their schools. And this court has gone very far to protect against loss threatened by such action.

[case citations omitted]

Someone is likely to have "standing" to hold the government account for passing a law that abridges the freedom of speech which is done by humans even here in some sense. People authorize Nike's speech, people listen to and learn something from it. People downloaded the video here. It can be argued that standing given to corporations here advance their interests as is done when some other advocacy corporation critics of the ruling often like is so given, including but not limited to media corporations. e.g., NAACP v. Patterson.

Even if the corporation is not a "person," it is possible the government does not have the power to inhibit the expression or other interest involved. If it does, corporate personhood alone isn't necessarily the deciding factor.

Will (Should?) the USSC Necessarily Take The Case?

William Eskridge Jr. wrote CASE FOR SAME SEX MARRIAGE: From Sexual Liberty to Civilized Commitment in 1996 and it has held up well over time. See, e.g., Same-Sex Marriage: The Legal and Psychological Evolution in America, by Donald Cantor et. al., which looks at it from various angles, including how marriage overall has developed in recent years. Thus, we are left with NY being the only state to my knowledge without a true "no fault" divorce law,* though first cousins (yeah Darwins!) could marry there. This development changed marriage writ large in ways much greater than same sex unions has where they all state sanctioned.

The case will go next to the U.S. Court of Appeals for the 9th Circuit. And if the voters don't moot it by repealing Proposition 8 in 2012, the last stop will probably be the Supreme Court.

If the appellate court upholds Prop 8, it is somewhat unlikely that the SC will accept the case. It very well might be possible that even if they strike it down that the SC will not take the case. This would include how the ruling is written.

After all, California already has a statewide domestic partnership law which protects most of the privileges of marriage. Thus, the "state interest" in having Prop 8 is weaker than some other state (including those in the Ninth Circuit) without that. The state legislature was open to a same sex marriage law and the CA SC held it was required under the state constitution. The possible "animus" of Prop 8, as compared to existing laws elsewhere provides a narrow construction.

And, the Supreme Court left in place preliminary protections of marriage rights and homosexuals in the past. The CA Supreme Court was twenty years ahead of Loving v. Virgina, resting on federal constitutional grounds:

Since the right to marry is the right to join in marriage with the person of one's choice, a statute that prohibits an individual from marrying a member of a race other than his own restricts the scope of his choice and thereby restricts his right to marry. It must therefore be determined whether the state can restrict that right on the basis of race alone without violating the equal protection of the laws clause of the United States Constitution.

Particularly if it rests on narrow grounds, which would probably be advisable (the ruling need not block further protections, just as narrow early free speech rulings left an opening for broader protections), the Supreme Court could feel it advisable to let things simmer before taking the case. Did it take a case when the lower court upheld an outlier law that completely banned same sex adoption?

OTOH, recent events suggest this is not something to rely too much on.

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* As the link suggests, NY's practices is troublesome in part because it is out of step "with modern views of marriage," which in effect burdens the basic right at stake.

Refusal of the NY Senate to pass a same sex marriage law [though out of state same sex couples, including those from Connecticut, are recognized ... notably out of state "civil unions" are not] is therefore not the only "right to marriage" issue the state needs to address.

Zinn Again

It might have been a "sad" moment to hear Howard Zinn died, but one must say he lived a long and productive life. Sometimes, "he died too young" doesn't quite fit. Cf. let's say this actress, who I saw twice recently. Instead, let's just honor him for providing such an important voice of dissent and education. And, continue his mission.

Alito's "You Lie" Moment

Various reactions to Alito's facial displeasure at Obama's remarks. Rep. Joe Wilson's "you lie" was exaggarated and this probably has been too, if perhaps somewhat less so. Maybe, the timing of the ruling made a visit by the justices there a problem waiting to happen.

Howard Zinn R.I.P.

Zinn was a great activist, teacher and person. Declarations of Independence is a good introduction to his views. Still, this criticism of his most well known work is on point.

Aimée & Jaguar

And Also: The second episode of Life Unexpected had a few predictable moments, but the main characters did not wear out their welcome quite yet! Being Erica is back as well, but I will see the first two episodes over the weekend, probably.

I will love you beyond measure
Be true to you unconditionally
attend to order and cleanliness,
work hard for you and the children and myself,
be frugal, when it is called for,
generous in all things,
trust you!
What is mine shall be yours,
I will always be there for you

-- Elisabeth Wust, née Kappler

Aimée & Jaguar by Erica Fischer is something of a remarkable account. I recently watched the film adaption, which changed some details for dramatic license, but held the core of the basic story:

The film explores the lives of the characters Felice Schragenheim (Maria Schrader), a Jewish woman who assumed a false name and who belongs to an underground organization, and Lilly Wust (Juliane Köhler), a married mother of four children, unsatisfied with her husband (a German soldier).

The book clarifies how things actually occurred (e.g., the divorce between Lilly and her husband occurred differently), provided a bio for Felice and discussed what happened after Felice was captured. This latter matter provided an interesting (among other things) account of regularity in the midst of craziness. As Felice was taken various places before her (unrecorded) final days, Lilly was at first able to visit and contact her. We even read brief messages that survived a few months later when Felice was in a concentration camp. And, some of Lilly's diary entries from that time. This is take a bit far at points, but it is a good device overall.

The basic story is a lesbian love story, but it also is a window into another time. The charm is that we have a lot of writings (as well as some remarks of survivors, including Jews who hid in Berlin and so forth) from that time, particularly a lot of poetry from Felice (the book was originally in German though the poetry translates well into English) and writings between the two lovers. As noted in a brief epilogue from the author, there is some holes from the perspective of Lilly (Aimee was a pet name given by Felice from a play, and it means "beloved"). For instance, we have a detailed background of Felice's upbringing, but very little on Lilly.*

[The opening excerpt is from vows of sorts they traded as a sort of marriage contract.]

The movie was somewhat more hazy about certain details but provided a great sense of place (one where the usual rules were not in place) and dramatic energy. Or something. Seriously, it was very good, the two leads particularly making it work. Juliane Köhler (Lilly; one photo in particular does remind me of her) later played a Jew fleeing from Germany in the Academy Award winner Nowhere in Africa (they emigrated there) and later as Eva Braun in Downfall. Since she was alive when the book was written, we know more about her, but Maria Schrader (various German roles I'm not familiar with) as Jaguar (as in the animal, her pet name) is somewhat more the focus in the film.

We know about the events before and after from various accounts, but Anne Frank is generally known for the events in her diary. A couple years of an already short life is what most people think about. As with the Civil War in the lives of others, a few years also comes off as the true time for these two. Life was pretty sad for Lilly after Felice was arrested, particularly after the war. Besides a short, unhappy, marriage, apparently she did not express her lesbian side again. But, many a love story is about a short period of bliss, if during truly scary times.

So is this. [Jaguar & Aimee]




* I'm not quite sure why -- yes, Lilly might not have wanted to share, but various things were in the public record. Thus, a chapter on her youth could have been done, probably, but the epilogue suggests the author (Jewish herself and born in 1943 of a mother who grew up in Poland) was less interested in digging that up. But, with a half-Jewish (!) brother and such, it surely would have added to the account. The book is however is generally neutral in tone.

A bit of balance ...

Not quite a support, but this is a more balanced Slate piece on just exactly what the ruling did. A bit too much hyperbole on that front. Good bit on how the "meaning" of the First Amendment changes with court personnel. My take. Next up: guns!

Creation

As the NYT noted: the "film traffics in the pseudo-psychological mumbo-jumbo that is the standard folk religion of the film biography, and undermines its interest in reason by dabbling in emotive pop occultism." The lead and some set pieces are pretty good.

Haiti ... beyond one disaster

Straight Dope, the trivia column, of all places does more than many to address not only the story behind one stupid Pat Robertson comment, but the structural problems behind the problems in Haiti. "An earthquake of comparable intensity in northern California in 1989 killed 63 people, compared to more than 150,000 in Haiti."

Saints Come Marching In

Well, in a game that went to OT (where three booth reviews and a questionable penalty all went for the Saints), the Saints did win. As with the last championship game (this time in warmer but less friendly environs), the Old Man coughed it up at key moments. Without him, the Jets went pretty far. To the future!

52 YD Attempt with Lead Early 3rd?

Really?! Miss/short field/TD/lead. Stupid move, Rex! [And, it went downhill from there. Expected more out of this game. Damn.]

Sports Quickie

Gary Matthews Jr. is a reasonable insurance policy, giving fans Mets fans something to be happy about. But, if this is so, why not just get rid of him?! CYA? Saints should win. Jets can. Nail biting likely.

Roe Turns 37

And Also: The search for Juliet in last night's hour long Wizards of Waverly Place was brief as compared to the somber (tragic even) tones of the plot. The actors overall carried it off though it does clash with the more easy going usual flavor of the show. Wonder how far they will take it.

This right of privacy, whether it be founded in the Fourteenth Amendment's concept of personal liberty and restrictions upon state action, as we feel it is, or, as the District Court determined, in the Ninth Amendment's reservation of rights to the people, is broad enough to encompass a woman's decision whether or not to terminate her pregnancy. The detriment that the State would impose upon the pregnant woman by denying this choice altogether is apparent. Specific and direct harm medically diagnosable even in early pregnancy may be involved. Maternity, or additional offspring, may force upon the woman a distressful life and future. Psychological harm may be imminent. Mental and physical health may be taxed by child care. There is also the distress, for all concerned, associated with the unwanted child, and there is the problem of bringing a child into a family already unable, psychologically and otherwise, to care for it. In other cases, as in this one, the additional difficulties and continuing stigma of unwed motherhood may be involved. All these are factors the woman and her responsible physician necessarily will consider in consultation.

-- Roe v. Wade

The recent excitement has, like LBJ's death originally, made yesterday's anniversary of Roe v. Wade a sideshow of sorts.  But, its security of privacy, particularly as practiced by certain groups with special burdens (be it women or homosexuals or whomever), is followed in spirit by the Prop 8 battle that continues onward.* Thus, equality and liberty, including the liberty to make certain intimate choices that touch upon matters of fundamental importance including one's very health and lives, join together as one to the current day. 

As conservative Justice Harlan noted a decade earlier, "the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details" in a "matter [regarded] for the conscience of the individual and her family" (to quote Roe).  As Samuel Adams, the patriot that pushed for our independence once noted:

Driven from every corner of the earth, freedom of thought and the right of private judgment in matters of conscience direct their course to this happy country for their last asylum.

And, as Roe itself said (some who ridicule it might want to read it more closely**), this includes greatly debated questions that divide us, including the place of embryonic and fetal life. Such great matters of religious debate are questions left in many ways to the conscience of each person.  This is not only good policy, but follows the words and spirit of the Constitution.  Again, it is particularly important when the alternative, in ways that often are counterproductive to the alleged justifications (see the result of abortion bans in Latin America), burdens certain groups.

But, focus on a particular ruling is too limiting. The spirit of Roe is secured in private and public life in a myriad of ways, while the threats to it often arise there as well.  Those against abortion realize the importance of such realms as well, realizing that reduction of abortion often is not a matter of banning it, but dealing with the reasons that lead to abortions.  Ironically, this at times promotes the basic sentiments of the ruling in the process. 

Happy birthday and keep well.

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* As discussed on the latest episode here, one thing a viewer of the trial could have seen was a local politician emotionally discuss his changing his mind on voting against a measure to support same sex marriage.

He also firmly noted that be against same sex marriage is "prejudice," even it might not make you a simple "bigot."  Such a personal account means more than words on a page, particularly when many are more likely to watch than searching for them in some dry transcript.

** It is quite open to some criticism even though the concurrences and later cases added more flesh to the reasoning. For instance, the quoted paragraph is basically the core analysis of why the right to privacy applies to this specific context. It is somewhat lacking.

But, other aspects, including why "person" doesn't apply to embryos and so forth is less so. In fact, though shall we say sometimes in embryonic form, there is a lot of good stuff there. If we focused on thin opinions alone, any number would be open to scorn.

Value of Open Courtrooms

And Also: The ultimate result of the Edwards matter is pretty pathetic. I voted for the guy but knew at the time that it was at best a protest vote. But, what a stupid ass. And, yes, not the best veep candidate. OTOH, Dean has shown himself a worthy candidate.

The Supreme Court blocked a feed to a few more courthouses and thus one to the general public is currently out too. So, we are left with secondhand accounts, such as here.

Video reports appeal to some more than reading extended transcripts, particularly transcripts that are actually at times summaries of what occurs. Video can also be more democratic -- some might not be as comfortable with extended transcripts, finding video easier to understand or relate to. This is useful to recall even if you or I may not be a member of this group. Reading is fundamental, but video is educational as well.

People can also dismiss the live blogging as the work of biased pro-same sex marriage sorts or otherwise erroneous. The "MSM" often is also dismissed as biased and/or incompetent. Coverage will be incomplete (as live blogging of the Sotomayor hearings tended to be). When such an error is cited or something is left out, being about to directly download the video of the trial can be used to judge things for oneself, including things that rest on viewing the demeanor of witnesses or others involved and so forth.

Viewing the trial also would deal with live people, making it harder to stereotype or ignore the personal on both sides. This is true even regarding questions we all are tired hearing about. "Oh, well, yes, that [fill in blank] sort seemed reasonable. I mean other [fill in blank] faceless people on the other side." Certain issues that are very personal and sensitive are hard to reasonably handle. Facing real people changes things in various cases.

Though many here speak from direct experience, including involving themselves and loved ones, it also amounts to a lot of faceless philosophizing. Having seen Bazelon and Lithwick [Slate commentators] on television speak their mind (or even listening to audio of them) alone matters to me and others, if in a small way. When dealing with same sex couples or Prop 8 supporters, it would even more so. Video reports of the Haitian disaster underlines this.

The coverage is helpful. But, direct video would be more so, even if it also brings negatives. How much? Hard to quantify. Enough to matter, probably.

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* I added:

Bottom line, video helps the function of public trials, expanding the role in the process beyond media gatekeepers, even if the latter group includes bloggers. Online video has an educational and oversight function in any number of cases, as its use on political blogs show, and can in respect to trials too.

Some are not comfortable with this role, but the fears tend to address issues that would arise anyway, such as outing witnesses whose names and faces are in no way secret or the expansion of the noise of cranks. This must be weighed against the positives as well.

I might have referenced this before, but this was originally posted on the Slate fray and I wanted to post it here as well.

Freedom For The Thought We Hate: A Biography of the First Amendment

Not the best of titles (not much about religious freedom here and it is not just about stuff we "hate"), but Anthony Lewis provides a good introduction for the general reader. Most interesting is his acceptance of limits, including to respect privacy, and rejecting too much special favoritism of the press. A few factual slip-ups though.

Citizens United

And Also: Meanwhile, this (Gitmo suicides) underlines what happens when you don't have a full airing out set of investigations. I want prosecutions, but a Truth Commission is the least we can do.

[And Also: The overheated replies to this ruling, including the assumption this will mostly benefit Republicans (the union limits ignored in the process), annoy me. Glenn Greenwald, who has no love lost to corporate control and so forth, provides a more sane reply today.]

He brought this civil libel action against the four individual petitioners, who are Negroes and Alabama clergymen, and against petitioner the New York Times Company, a New York corporation which publishes the New York Times, a daily newspaper.

-- NYT v. Sullivan

This great moment of First Amendment jurisprudence ultimately concerned written material which led to liability to five persons -- four humans and one artificial person aka a media corporation. At no point did the Court suggest that the protections involved depended on who brought the suit. Or that corporations have the same rights as you and I. Even in respect to First Amendment matters. So, why should today's ruling against the FCC be understood differently?

Some point to the hypocrisy. Suddenly, judicial restraint goes out the window (Roberts' concurrence), and we should bluntly rely on the text (see Scalia's concurrence) over specific original understanding (after all, things have changed since then). The apparent basic principle that protects corporations here as much as non-corporations was not really honored well in the past. "Plausible" narrower alternatives that would not make new law in the face of complex factual questions are available. Corporations corrupt the process (many links).

Fine. The concurring opinions can be used to show why the federal courts should rely on text to overturn Prop 8. I'll call them on it, if they reject it based on false claims of restraint. The experts in the field have a good point that at worse (best?) they should have remanded it in June before deciding it without a factual record dealing with exactly what they planned to do. Free speech should be honored consistently, though Kennedy (the author here) does this more than others.

And, money does "corrupt" the process, but money will always be there. It is a cost of the First Amendment, one that can be addressed in other ways. Some include: the limits (disclosure/disclaimer) upheld here, public financing, free ad time, grants to nonprofits that can be used to promote their causes during election times, and so forth. Finally, even Scalia points out that corporations can be limited to their charters. This can include what they donate money to promote.

But, who is President affects the bottom line, even if anti-abortion campaigns might not. The way they went about it is open to criticism, but the bottom line of today's ruling is less so. A lot of talking past each other, aided by who wrote the lead opinion (the need for concurrences largely based on Kennedy's penchant to not answer dissenting points) and dissent (written by an outlier here, Breyer and company not going as far as Stevens did in the past), notwithstanding.

I talk more about the rulings over at the Slate fray.

A bit of perspective?

If this election was such a national referendum of health care and how Democrats are understood overall, maybe I should have had a chance to vote. OTOH, maybe it was a single special election with a bad candidate losing? That is, get a f-ing grip.

Give Me A Break

Democratic President. Significant majorities in both houses. Long drawn out negotiations to pass reform struggled for generations. Opponents who are tools. It all rests on the 60th vote. Oh, fuck you. Will they ever learn? Precedent is not overly promising.

Supreme Court Reaffirms

A cocaine trafficker wanted his guilty verdict overturned because the judge kept the public out during voir dire, that is, during the questioning of potential jurors. Such a claim was decided upon when raised in the interest of the public at large, but it was somewhat less clear if a defendant could raise the claim.* The Supreme Court summarily reversed the state court for rejecting his claim in a 7-2 unsigned opinion** without the benefit of oral argument. It recognized that keeping the public out in a criminal trial is not absolutely prohibited:

"[T]he party seeking to close the hearing must advance an overriding interest that is likely to be prejudiced, the closure must be no broader than necessary to protect that interest, the trial court must consider reasonable alternatives to closing the proceeding, and it must make findings adequate to support the closure."

Furthermore, this must be done carefully:

"be articulated along with findings specific enough that a reviewing court can determine whether the closure order was properly entered."

It is true that the Prop 8 trial is not a criminal trial and the public was allowed in the courtroom But, the general principles apply, a civil trial if anything often raising less problems than a criminal trial of a drug trafficker. Also, the importance of the Prop 8 case as compared to a run of the mill drug case also is notable.

The principle of "no broader than necessary" applies in the Prop 8 context as well. Lest we forget, the Supreme Court did not stop a YouTube trial. No, the narrow question was allowing it to be broadcast to a few more courthouses. Also, the ability to shut off the cameras even there for certain sensitive witnesses also was present. Again, "reasonable alternatives" were present. This included letting the appeals court or those in charge of overseeing the cameras (e.g., respected conservative/libertarian Judge Kozinksi) guard against abuses.

But, I guess the two are not quite on point. How so, well that's somewhat open to question. Interesting timing, btw.

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* One such ruling -- dealing with a sensitive motion to keep evidence from the jury in a criminal trial -- unanimously honored the benefits of openness over the objection of the defendant. Ditto when the state objected. (As to sensitive matters, see Justice Marshall's concurring opinion). The principles raised in no way is limited to criminal trials or the specific courtroom in question.

** Adding to a trend, it also handed down another per curiam (if closely divided) as well, involving a serious matter but with some um tasty details.

It also is an interesting parlor game to wonder who wrote the opinion. The reference to "our dissenting colleagues" is telling. A quick search suggests a possible answer, particularly since it matches the most senior of the five.

Life Unexpected: Fairly Painless CW Fare

The soundtrack was a bit too obtrusive and the plot too cliched at spots, but it did have the God of Love from Valentine. Seriously, the Juno/Gilmore Girls combo (with a less cheery result at the front end) was good enough to let me try it again. Castle, not so much.

Get Real Moment of Day

The prediction, too, turned out to be wrong, said Lee Epstein, who teaches law and political science at Northwestern. “Political scientists have shown,” she said, “that the court’s legitimacy didn’t suffer in the wake of the decision.”

-- Adam Liptak

BTW, the lead actress in Lorna's Silence was very good.

More Football

The Chargers, their coach and kicker (in the playoff vs. the Jets) all choked in the playoffs before. The Jets kept it steady, even when the offense did nothing early. Ravens did not, blowing it near the end of the 2Q. No fan of Dallas, but with 1:55 left and up 27-3, you don't throw for a TD and then celebrate. Go Saints/Jets!

Lorna's Silence

A superior film, which follows a certain "style," including its lack of a soundtrack. But, I am not that familiar with that, and still found its story about the problems of scams when you have a conscience powerful. The ending takes a bit of acceptance, but it works too.

Division Round: GO JETS!

Saints and Vikings (a bit too much at end!) showed up in spades, Colts did for 14 quick points, lack of Arizona D did them in and Dallas brought little. And, the Jets defense was great, offense good enough and the team got a late Xmas present from the Chargers' kicker!

'09 Movies: Eh

And Also: It would be horribly unjust if one special election in Massachusetts can destroy the health care bill. I find TPM's failure to underline that, not just say it's bad, wrong. Also, no, he would not be sworn in the next day. That is simply wrong, Josh.

[Update: As noted, I didn't see all the films that looked worth watching, so like the later quickie review of Lorna's Silence (released in the U.S. last year), a bit more will be said later on.]

I did not go to the movies that much in 2009, that is, in comparison to past years. It was not the only reason, but a major reason was that there were much fewer films that I wanted to see. A few I did see (or will; District 9 is scheduled on Netflix) on video, but even there, there wasn't too many more I really wanted to see. Some include Avatar and Precious, the former apparently wonderful to look at, but bad for the soul. The latter just sounds utterly depressing.

I commented on Trucker previously, an indie with a lead performance that is not unreasonably at least an honorable mention at Oscar time. Another film that deserves to be watched on video is Michael Keaton's addition to the hit men genre, The Merry Gentleman. The Haunting of Connecticut also might be worth a look, my pick for the horror genre over the overrated Drag Me To Hell (the "Snakes of the Plane Disappointment" entry in that category). Lemon Tree also was a good foreign film. Paris 36 was a pretty fun one.

The best movie I saw in the movies was probably the baseball movie Sugar, concerning the struggles of a Latin American rookie in the minors. It focused on the minority for a change, not some white supporter. Meryl Streep deserves another nomination for her half of Julie & Julia, the other half just one of three disappointing roles for Amy Adams is about a year's time.* Give that girl a real role! At least an honorable mention goes to former the Seventh Heaven star who carried Easy Virtue well.

Race to Witch Mountain was an okay film for older kids. Star Trek had some charms, but basic plot problems including how Kirk's character was handled left a bad taste in my mouth. Major "not weighty enough to use a tragic plot device" violator. Amelia was a bad film with a decent lead. Extract was bland. And, Did You Hear About The Morgans was a decent low expectations flick.

Again, I didn't see a few notable films (e.g., Sherlock Holmes, which probably will sell better on video) but though it had a few moments (one way or the other, Avatar was such), a down year.

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* Emily Blunt, her co-star in one film, did fairly well in Young Victoria, but the film itself was sort of lame.

Nelson = Moderate Democrat?

Again, are there any conservative Dems? I guess that news should be considered a victory, fwiw.

Why They Fight (Prop 8)

And Also: Perhaps, the documentary -- which I missed the first time around -- will be better, but the companion book on Louisa May Alcott: The Woman Behind "Little Women" was a bit of a trudge, especially toward the end. Her life is interesting, but the book didn't do it justice. And, why no photos?

In 1923, the Supreme Court in Meyer v. Nebraska noted:

While this Court has not attempted to define with exactness the liberty thus guaranteed, the term has received much consideration and some of the included things have been definitely stated. Without doubt, it denotes not merely freedom from bodily restraint but also the right of the individual to contract, to engage in any of the common occupations of life, to acquire useful knowledge, to marry, establish a home and bring up children, to worship God according to the dictates of his own conscience, and generally to enjoy those privileges long recognized at common law as essential to the orderly pursuit of happiness by free men.

The "right to marry" was thirty-five years later reaffirmed of fundamental importance in Loving v. Virginia, in which race was deemed an illegitimate barrier to entry:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival.

Tradition that allowed such a barrier was not the final test as noted in Lawrence v. Texas:

[T]he 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.

The same applies to various other changes in the marriage institution with constitutional implications, such as criminalization of spousal rape, once deemed a violation of marital privacy, particularly if the spouse testified.

Marriage is so much of a fundamental right that it could not be barred, so said the Supreme Court twenty years later in Turner v. Safley, even in prison:

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).

Thus, a same sex marriage in prison was discussed here. The importance of marriage traditionally is suggested by the first case -- a group of activities (such as establishing a home, intimate relations, raising a family) was held to require a certain institution, with public benefits and private responsibilities, to work. Thus, a ban on interracial marriage was problematic because if you wanted live together and so forth, religious marriage was not enough. To live out such a marriage, with its religious and other aspects, you needed a marriage license. This still holds true in the minds of many.

For these, the road is clear: if the government will provide, it must provide equally. The equal protection clause is general, not limited to race. It applies to sex and sexual orientation. Some accept marriage but try to explain that "same sex" is different. There are ways to do that just as there were ways to wall out interracial, inter-religious, poor, handicapped, or any number of other couples.* But, avoiding illegitimate discrimination is much harder.

This holds true if you think "marriage" is a bad idea. We can't dismiss the value of equality because we don't like the government benefit. Separate is not equal; "near" equality is not equality. So, much firm opposition to government involvement in marriage is fine and all, but somewhat besides the point. Some in my experience appear to miss this point, not impressed that another group wants to get "theirs" when marriage is problematic enough as it is. Some in the LGBT community thing this too. Again, that's nice and all, but there is this equal protection rule, and it applies even if you don't like the benefit.

And, many still support government involvement, but want to use the term "civil unions" or whatnot. This is so because a "public" commitment with state benefits tied to it continues to make a good deal of sense, even if the religious and private aspects can be done separately. [As it can be done now, Catholic churches not marrying certain people who are divorced etc., but said people are married civilly.] Or, if certain benefits are not just given to "married couples" but others as well, such as elderly siblings. This suggests there are various inequities; but, barriers to same sex couples still would be one of them.

Many things once only done via marriage, including cohabitation and even raising children, can now be done without marriage or civil unions. Thus, the constitutional right to use contraceptives was first secured for married couples, deemed part of marital freedom, but later was expanded to the unmarried too. Ditto sexual relations in general. But, we continue to have the government sponsored unions, now generally known as "marriage," because we continue as a whole to deem it a fundamental institution in society, one that requires some state involvement to work best. Call it "civil unions," the same basic principle would apply.

This was the case throughout history, and the traditional "right to marriage" continues to be deemed an important fundamental right protected by the U.S. Constitution, particularly as a "liberty" or one of those unenumerated rights secured by the 9th Amendment. But, putting that aside, as long as the state provides certain "privileges and immunities," as it does via marriage, it has to be done equally. Classifications can be made, but equality requires that they are reasonable. Race and so forth does not meet the test. So, even if there was no "right to marry," marriage could not be a benefit handed out in an inequitable way as it now is given same sex couples -- who are just as able to enjoy the aspects of marriage as those in prisons -- are deprived of their rights.

As protected by the federal Constitution, which is the supreme law of the land, even if democratically enacted laws violate it. The federal courts have a role in protecting such law in part by carrying out trials to secure the victims of such illegitimate laws. And, to protect serve this role, we have open and public trials:

openness to the proper functioning of a trial; it gave assurance that the proceedings were conducted fairly to all concerned, and it discouraged perjury, the misconduct of participants, and decisions based on secret bias or partiality

This is an important value, one that deserves to be honored broadly. [See last extended entry.] It would "undermine public confidence" and limit their knowledge and understanding if it is done in a overly modest way, particularly if the case is of high importance, be it a major criminal trial or one that touches upon the basic civil rights of man.

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* Discrimination by race, sex, sexual orientation, religion or poverty (in certain cases here) is illegitimate, so appeals to polygamy are somewhat besides the point as much as appeals to bestiality and many forms of incest (both which have consent problems; notably, however, quite a few states allow first cousin marriage). Interference with family dynamics also helps justify limits on incest, though when adopted or step-siblings are involved, this might get messy in certain situations.

Still, as Griswold v. Connecticut, the contraceptives case noted:

We deal with a right of privacy older than the Bill of Rights - older than our political parties, older than our school system. Marriage is a coming together for better or for worse, hopefully enduring, and intimate to the degree of being sacred. It is an association that promotes a way of life, not causes; a harmony in living, not political faiths; a bilateral loyalty, not commercial or social projects. Yet it is an association for as noble a purpose as any involved in our prior decisions.

Marriage is a "bilateral" loyalty under our tradition. It becomes much more complicated when more than two parties are involved. A 1:1 union is of different character, including pertaining to questions of decision-making and so forth, than a 1:>1 union. Polygamy can be imagined (see the dissent here), but for this reason plus problems tied to how it often is practiced here (consent issues, gender issues, in particular), it is not the same.

"Any" marriage isn't the test. A marriage without illegitimate barriers to entry based on discrimination is. This is what is being fought here.

Haiti

This hits to one concern I have too -- the depth of the coverage beyond "it's so horrible" (and it is), including a long term view. But, then, when is that really provided? And, hey, just one more thing we can spend money on besides stupid oversea adventures.

Beltran out for months ... joy!

Stop If You Heard This Before (5-4)

And Also: The story seems a bit disjointed and it probably shouldn't be taken as pure history by any means, but Aimée & Jaguar can be listed on the positive Netflix meter. As with A Mighty Heart, it also has a flash of pure anguish for a loved one that is not often shown.

[Update: Judge Kozinski was open to letting trying out the plan rejected here, but this puts into question his neutrality. Was he like scoping out John Roberts (yeah, that one!)? The dissent referenced, however, is a classic.]

In an unsigned opinion (Volokh Conspiracy thinks Justice Kennedy is a good guess as author, which I thought as well), the Supreme Court blocked the broadcast of the Same Sex Marriage / Prop 8 trial on procedural grounds:

We are asked to stay the broadcast of a federal trial. We resolve that question without expressing any view on whether such trials should be broadcast. We instead determine that the broadcast in this case should be stayed because it appears the courts below did not follow the appropriate procedures set forth in federal law before changing their rules to allow such broadcasting. Courts enforce the requirement of procedural regularity on others, and must follow those requirements themselves.

We know the division because:

JUSTICE BREYER, with whom JUSTICE STEVENS, JUSTICE GINSBURG and JUSTICE SOTOMAYOR join, dissenting.

It would be interesting to have seen how anti-camera in the courtroom (at least his) Justice Souter would have ruled. The dissent argues that this is not a case to interfere with lower court administration. As to the procedural question, I generally am inclined to take the opinion of the four in close questions, particularly when we are talking about the Supreme Court interfering with the judgment of the lower court's internal proceedings. I might be convinced otherwise, but in close cases, the tie generally goes against what the majority decided here, particularly when the result in less public trials. See also, here.

It also challenges claims of "irreparable harm" to the people involved in the lawsuit itself. For instance:

But the witnesses, although capable of doing so, have not asked this Court to set aside the District Court’s order. [case citations deleted] And that is not surprising. All of the witnesses supporting the applicants are already publicly identified with their cause. They are all experts or advocates who have either already appeared on television or Internet broadcasts, already toured the State advocating a “yes” vote on Proposition 8, or already engaged in extensive public commentary far more likely to make them well known than a closed-circuit broadcast to another federal courthouse.

Likewise, the reporting already is broad:

By way of comparison literally hundreds of national and international newspapers are already covering this trial and reporting in detail the names and testimony of all of the witnesses.

I'd add this reduces the general argument that video -- via YouTube or an Internet link to the court feed or the more limited way at issue here -- is dangerous. Witnesses often have something to worry about and some of the concerns voiced are standard to any protest movement -- nasty names and threats of boycotts to businesses included. The public nature of the witnesses underline even threats of violence by a few (exaggerated by some to imply that Olson* on down are involved) is not convincing. At worse, the judge can block coverage to sensitive witnesses, though said witnesses would still be seen by the media and people on hand.

The majority did comment on the effects of broadcasts but the ruling ultimately was limited:

The District Court has issued an order permitting the trial to be broadcast live via streaming audio and video to a number of federal courthouses around the country.

The plan to broadcast on the Internet was never finalized; but given opposition to this limited broadcast, the net effect of the ruling makes that somewhat besides the point. More here. Overall, video coverage would provide the general public a direct means to judge the proceedings, humanizing both sides in the process. This is ultimately the value of public trials generally, which is taken to a new level here. Comparably, there is a right to confront one's witnesses in court, dry transcripts or hearsay deemed not good enough. Some want to leave things to the same media that they disdain as a general matter as incompetent and/or biased.

Some fear that television will in effect make things a circus, but this only tells one side of the story, openness being messy but not just that. If some who want to stop equality want to stay in the shadows, is that a good thing? The shock at how nasty support of inequality is treated is precious given how nasty equality has and continues to be. Greedy business -- they won but can't even take criticism. Their chances of winning in court on some level (at least in the short term) reasonable, but that is not enough. They want to hide as they do it. No sale.

To be fair, some are wary of wide release -- again not the immediate issue in this ruling -- on neutral grounds like avoiding a circus or cranks dominating the debate, but I also don't find their reasons compelling. [More on why I think video important here.] I also would think that even direct audio, which would reduce various concerns, is useful here. Oh well. Back to media coverage and secondhand philosophizing.

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* Lot of talk about "the left," which apparently includes Ted Olson, solicitor general of the Bush Administration, and lead advocate on that side in Bush v. Gore.

To add to the flashbacks, we again here talk of "irreparable harm" and distrust of lower court judges that include Republican appointees like Judge Kozinski, who is among those ultimately having the responsibility to support or reject what the lower court judge is doing here.

Sanity from Right

Conservative leaning sorts realize the shots at Sen. Reid are inane too, even if some won't quite admit there is a reason why people targeted Trent Lott differently. On the constitutionality of the filibuster (violates constitutional values, political question).

Conan Has A Moment

This Leno/Conan situation is gold. Letterman riffed like crazy about it last night. Craig was funny covering it. Leno apparently showed some teeth. And, now Conan looks eloquent and classy.

RIP Miep Gies

“I am not a hero,” Mrs. Gies wrote in her memoir, “Anne Frank Remembered,” published in 1987. “I stand at the end of the long, long line of good Dutch people who did what I did and more — much more — during those dark and terrible times years ago, but always like yesterday in the heart of those of us who bear witness.”

Meanwhile, the Reid controversy is moronic. The PC noises from Republicans really is rich. Meanwhile, on the census ...

So in NJ, pot okay, same sex marriage not.

See here. Good luck to the marriage trial, YouTubed or not, though it just might be a bit too premature. The basic argument is obvious.

Wishing Well

Hallmark's Wishing Well was a "name that B-lister" affair, a romantic fantasy that glorified small town life. Went down easily as these things do when done right. Meanwhile, Pats had a horrible 1Q and was no way good enough to come back from it. [In THE game of the weekend, GB comes back big, but gives it up in OT.]

Oh well ...

TPM is scaring us again via the MA election -- the most troubling point is that the whole thing is absurd. In effect, it is taken as a given that one new senator now can destroy everything that just was decided. What would be totally absurd and illegitimate on most levels is just a strategic point to handle. This is the road to ruin.

More Football

Before the game, I thought -- this game has to be won and then the Jets need to play respectable next week. One down. With the Eagles' collapse (one win from 2 seed to two ugly upsets), we are one game from each rematch (two in different fields) of last week's games having the same ultimate result. Go Ravens/Packers!

Jets Win ... How About A Real Upset Now?

Bengals blew a shot early, got it back, but then couldn't do much except one big run for a score. The rookie Jets QB did good, but the fill in punter (and regular kicker) Feely also gets lots of credit. Not as embarrassing for Bengals, but the QB wasn't very good, and the kicker choked twice, the last one about icing the game for the Jets.

Quickies

The star of Trucker was on Craig last night, you know the best late night show host at the moment. Meanwhile, Portugal's legislature did what NY and NJ could not: give equal rights to same sex couples to marry. Not adoption rights -- bigotry still rules!

Trucker

Trucker stars Michelle Monaghan (Gone Baby Gone) as a loner trucker who has to watch the son she gave up while his dad is in the hospital. Joey Lauren Adams is welcome in a small role as is Nathan Fillion (Castle) in a bigger one. The movie is predictable but is well worth it for the performances, though the son is a bit annoying.

Dawn Johnsen Will Be Re-Nominated

This is good and gives hope even to the usually pessimistic.

For The Love Of Animals

See here for background. In honor of For The Love Of Animals: The Rise of The Animal Protection Movement by Kathryn Shevelow, a good read, for the cast of characters alone.

Elections Have Consequences

And Also: Noted that I didn't get into A Woman In Berlin; the woman who played Eva Braun in Downfall had a bit part early on. In fact, I first saw her in Nowhere in Africa (as a Jew), a great film. She appears to have made quite a few WWII era films. Better luck with The Investigator, a very good 1997 British drama about the military hunting lesbians in Britain.

There are quite a few Cabinet members, though you only tend to hear about a handful, namely Clinton, Holder and Gates. For instance, there is the Secretary of Labor:

Soon after she became the nation's labor secretary, Hilda Solis warned corporate America there was "a new sheriff in town." Less than a year into her tenure, that figurative badge of authority is unmistakable.

Her aggressive moves to boost enforcement and crack down on businesses that violate workplace safety rules have sent employers scrambling to make sure they are following the rules.

The changes are a departure from the policies of Solis' predecessor, Elaine Chao. They follow through on President Barack Obama's campaign promise to boost funding for the Occupational Safety and Health Administration, increase enforcement and safeguard workers in dangerous industries.

H/t Atrios.

Yesterday, I referenced an activist opinion, where two conservative Bush appointees -- very controversial when nominated -- reached out to decide (contra to the stance of the Obama Administration) that the international law of war basically had no place in determining detainee questions. "Activist" is a word I don't quite fancy, since it tends to mean a ruling the person who uses the word doesn't care for. But, neutrally, it clearly can mean an opinion that goes further than necessary, for good or ill. When libs on the Ninth Circuit do that, some sort of don't take to it, do they?

Anyways, elections have consequences, even if Obama doesn't seem that good. Compare the Secretary of Labor in the Bush Administration; see, e.g., Bushwomen by Laura Flanders. On the election front, the worries about '10 should be kept in proper perspective as noted here.

Oh Joy

TPM and others are starting to warn us that the Dems will lose some seats in '10, the time to enjoy recent wins apparently over about a year back. Now, Harold Ford's name is being dropped as a challenger to Sen. Gillibrand (starting to look not bad to many), partially since she's deemed not conservative enough or something. No thanks.

Quickies

Conservative court (joined by B43 heavy hitters) "activism" in action (and Obama is not the same as Bush). Scalia on music (rock music = torture?). Ignoring loads of deaths for an event that led to none.

Netflix

A nearby Blockbuster closed in part probably because of services like Netflix, which provides easy access for the price of as little as one rental a month. A two week trial run is available. I downloaded A Woman In Berlin, the book already read, but found it hard going. Still, can watch many more films this month for under $10.

Week 17

Some teams played for pride today, some stunk up the joint. The Giants were in the second category for a second week in a row. At least, they weren't one of the still possible playoff teams who did that this week. BTW, yeah, the Colts gave up a bit early last week. This is a team that kept Manning in up 42-6 vs. the Rams earlier on.

Dave Barry 2009 Year In Review (Legal)

Some highlights:

* Big political drama takes place in Washington, where David Souter announces that he is retiring from the Supreme Court because he is tired of getting noogies from Chief Justice Roberts. To replace Souter, President Obama nominates Sonia Sotomayor, setting off the traditional Washington performance of Konfirmation Kabuki, in which the Democrats portray the nominee as basically a cross between Abraham Lincoln and the Virgin Mary, and the Republicans portray her more as Ursula the Sea Witch with a law degree. Sotomayor will eventually be confirmed, but only after undergoing the traditional Senate Judiciary Committee hazing ritual, during which she must talk for four straight days without expressing an opinion.

* The Minnesota Supreme Court, clearly exhausted by months of legal wrangling, declares Al Franken the winner of American Idol. Meanwhile the governor of South Carolina, Mark Sanford, goes missing for six days; his spokesperson tells the press that the governor is "hiking the Appalachian trail," which turns out to be a slang term meaning "engaging in acts of an explicitly non-gubernatorial nature with a woman in Argentina." The state legislature ultimately considers impeaching Sanford, but changes its mind upon discovering that the lieutenant governor, who got into office through some slick legal maneuvering when nobody was paying attention, is Eliot Spitzer.

* President Obama becomes embroiled in controversy when, commenting on the arrest of Harvard professor Henry Louis Gates Jr. by Cambridge Police Sgt. James Crowley, he states that the police "acted stupidly." This comment angers many in the law-enforcement community, as the president discovers the next day when his motorcade is cited for more than 3,000 moving violations. To resolve the situation, the president invites both Gates and Crowley to the White House for a "beer summit," which is described later by White House spokesperson Gibbs as "very amicable" except for some "minor tasering."

* Attorney General Eric Holder announces that, to maintain the principle of due legal process, alleged Sept. 11 mastermind Khalid Sheikh Mohammed will be tried in federal court in New York City, but as a precaution, "he will be executed first."

His review was better in past years, but it has its moments. For some reason, I found the Eliot Spitzer bit the highlight. Not having a small daughter, I also had to look up the Ursula the Sea Witch reference.

Mansfield Park

The lead looked cute, even if some comments suggest she wasn't a good representation of the character (don't know). The movie was an okay time waster with a bit of (unintended) "this is silliness" tossed in. Bit thin. The realization the money came from slavery holdings (a reference to a West Indies plantation) did ruin things a tad.