The "nobody-could-have-known" excuse and Iraq

What GG said. Such tired b.s. FU.

Odds and Ends

Obama gave a speech on how the combat stage is over in Iraq. Digging out of a stupid hole is important but thankless. Pass. Another sad Mets game. Pass. S3 of FNL, including "the sex talk" (good analysis), continues to be good. Tyra, Tami and Matt are my favs.

Drone Attacks

Pretty good article on drones, among many. Military conflict will lead to deaths of innocents; the struggle is over cost/benefit ratios though openness to judgment by third parties etc. matters too. More here, here and here from my end. Overall, doubt the value pragmatically.

Volokh Conspiracy Citation

EV cited a bit of Eighth Amendment trivia that I flagged in comments some time back. I never saw much logic in not incorporating the Excessive Fines Clause; like the 3A, it's more a matter of never having a case or dealing with it another way. Glad to help a bit.

Friday Night Lights: Third Season

The middle seasons were short so I thought they might use them to cover one school year, but the third starts by jumping ahead, including various plot stuff. Matt's mom is good; as always, the characters shine. Good so far if not as good as S1.

Supreme Court Watch

Justices Kennedy (Legally Blonde inspires Chinese students), Sotomayor (crickets are in trees, not dorm rooms) and Ginsburg (see here) gave talks broadcast on C-SPAN over the weekend. Live and learn. So, the Supreme Court of Canada televises orals, huh? Kudos.

TPM Improves Comment System

Not that it was a great loss, I pick up pennies to compensate for all the .02 I give online, but TPM has admirably improved its comment system. I never could log on before; now I did so without a hitch. It even has an edit after post function. Quite helpful for some of us.

Ceremonial Deism by Beck and Company

[Edit: Maybe, the criticism did affect the final result, so "overhyped" is debatable.] Many praised it for respecting his memory as it did in a sort of vanilla way, his edges and social message blunted. Like ceremonial deism, how much this honors his memory is unclear.

Drop Dead Diva Season Finale

Again, the law stuff was a bit off (including a sexting subplot right out of Slate), but there was some good character stuff (such as a flashback with Deb & the cat commercial). Didn't care for the cliffhanger though even without Grayson getting hit by a car!

In July

Various people at Netflix and IMDB likes this German romantic comedy / road movie ("July" is a woman's name) but I found it too unbelievable and ultimately not that funny or endearing. The first turned me off, the second didn't save it from the first thing.

6-3 (Men/Women)

And Also: With Reyes out, how surprising was tonight's 2-1 win by the Mets against the suddenly on a roll (sweep of Phillies) Astros? Figgy pitched for the Astros, again well enough, but the Mets hung on in the 9th. Jets, down 6-5 at one point, had about as much offense.

Re-examining a past issue, DL discusses the value of having three women on the Supreme Court, two of them (along with Kennedy) on C-SPAN tonight. This seems to me akin to the logic of the importance of women on juries, quoted here respecting federal trials, the original written before Kagan was born:

The thought is that the factors which tend to influence the action of women are the same as those which influence the action of men -- personality, background, economic status -- and not sex. Yet it is not enough to say that women when sitting as jurors neither act nor tend to act as a class. Men likewise do not act as a class. But, if the shoe were on the other foot, who would claim that a jury was truly representative of the community if all men were intentionally and systematically excluded from the panel? The truth is that the two sexes are not fungible; a community made up exclusively of one is different from a community composed of both; the subtle interplay of influence one on the other is among the imponderables. To insulate the courtroom from either may not, in a given case, make an iota of difference. Yet a flavor, a distinct quality, is lost if either sex is excluded. The exclusion of one may indeed make the jury less representative of the community than would be true if an economic or racial group were excluded.

Studies on the point were cited in the 1970s opinion here. A judge, like a juror, has the responsibility of weighing facts with various perspectives helpful here as well. Sex is one such perspective that should be fairly represented; not the only one surely. In that respect, the Supreme Court -- by religion (six Catholics, though of at least three varieties, three Jews, all basically of the liberal/probably largely secular, variety), background, experience, etc. -- is still unbalanced.

It's nice that there are three women there, but the unbalanced representation of people from mostly elitist backgrounds et. al. (down to the number from the New York City greater area, a majority in itself if you toss in Alito) -- which will get less coverage -- not so much.

"U.S. Wary of Example Set by First Military Tribunal Case"

That would be Omar Khadr. Solution: don't try him that way. It's a lousy call on many levels. Talk about self-inflicted wounds.

Lightlife's Smart Dogs

Lightlife's Smart Dogs are truly amazing. They tasted exactly like regular hotdogs and even better. These veggie links cook fast and do not taste rubbery. If you switch them on your children they will not even notice the difference. I have tried other veggie dogs and have found them to be disgusting. This product by far has truly impressed me as far as taste and calorie intake.

Well, a bit less emphatically, I do like them.

THE PLOT: The Secret Story of The Protocols of the Elders of Zion

Will Eisner, a famous cartoonist, ended his career with this powerful graphic novel that tells the story of the biggest and most infamous anti-Jewish fraud of recent times.

The power to deny choice is again not only in the courts

And Also: Roy Oswalt in the outfield late because of an ejection, just one bit of recent craziness. But, as to the Mets, Misch is pitching okay enough, but errors and lack of run support is just not giving him a chance. Not as bad as some, but for a fifth starter, that won't work.

[The below is in reply to Dahlia Lithwick's article on the latest from Ken Cuccinelli, this time regarding abortion regulations. More here, a good first stop on reproductive issues.]

Two major themes come to mind here.

[1] The real and practical power executive officials can have in the application of the law, especially in the current world. The stem cell ruling just handed down underlines that the law is often open-ended enough that there is a lot of individual discretion here. And, even if the discretion is used unreasonably, it will take a long time to address the subject by long drawn out lawsuits or legislative action that can be subject to executive vetoes or usual legislative delaying tactics.

[2] The day to day protection of reproductive freedom -- as highlighted as well by Rachel Maddow's segment last night -- can often depend on uneven application of fairly technical rules regarding medical procedures and such.

Before Planned Parenthood v. Casey, there were at least five votes on the Supreme Court to guard against this, especially when it took place early in the pregnancy. The understanding was there that this was not really a neutral application of state regulation of medical procedures, but singling out a certain procedure on moral grounds. In a way that intentionally or at least directly interfered with a woman's right to choose. Some felt the courts were micromanaging, but the justices knew what was going on, including swing vote, Justice Powell.

Casey opened the path to more and more regulations that do not nullify choice but make it more difficult and expensive (which does in various cases have the net result of denying a girl or women the ability to have an abortion), as here resulting in possibly closing down many clinics because the (needless) requirements are too expensive. The interpretation here sounds like the road to the next big case where the Supreme Court expressly upholds such impediments even for first trimester abortions. It won't block a single procedure, but inflict a result across the board.

The A.G. here can only wish to lead the way.

"Rational Basis" Is A Bit Generous

And Also: Bad news for Troy Davis. It's hard to prove actual innocence on review like that, but the judge did questionably keep some evidence out.

When discussing the Prop 8 case, some reference is made to the need for laws to have a "rational basis." It actually is a bit generous to focus on "rational basis" when dealing with gender/sex and fundamental rights such as marriage. At least, as the term is usually defined by the federal courts; some state courts, such as the one involved in the Massachusetts marriage case might be somewhat more strict, even in economic matters.

This is useful to remember because some might find it troubling to submit all laws to some "rational basis" test subject to (often imperfect) judgment of federal judges. As a matter of limiting judicial discretion and focusing on certain important matters, this test is usually very low as to be nearly non-existent if no explicit provision (the Ninth Amendment, notwithstanding) of the Constitution is violation. For good or ill. But various fundamental rights, including those unenumerated (except in general terms, such as "liberty") rights such as marriage and "suspect" classifications like sex/gender* are given "heightened scrutiny," a higher test required.

As to gender:

Without equating gender classifications, for all purposes, to classifications based on race or national origin, [n.6] the Court, in post-Reed decisions, has carefully inspected official action that closes a door or denies opportunity to women (or to men). See J. E. B., 511 U. S., at 152 (Kennedy, J., concurring in judgment) (case law evolving since 1971 "reveal[s] a strong presumption that gender classifications are invalid"). To summarize the Court's current directions for cases of official classification based on gender: Focusing on the differential treatment or denial of opportunity for which relief is sought, the reviewing court must determine whether the proffered justification is "exceedingly persuasive." The burden of justification is demanding and it rests entirely on the State. See Mississippi Univ. for Women, 458 U. S., at 724. The State must show "at least that the [challenged] classification serves `important governmental objectives and that the discriminatory means employed' are `substantially related to the achievement of those objectives.' " Ibid. (quoting Wengler v. Druggists Mutual Ins. Co., 446 U.S. 142, 150 (1980)). The justification must be genuine, not hypothesized or invented post hoc in response to litigation. And it must not rely on overbroad generalizations about the different talents, capacities, or preferences of males and females. See Weinberger v. Wiesenfeld, 420 U.S. 636, 643, 648 (1975); Califano v. Goldfarb, 430 U.S. 199, 223-224 (1977) (Stevens, J., concurring in judgment).

As to marriage: "supported by sufficiently important state interests and is closely tailored to effectuate only those interests."

"Rational basis" is a weaker test:

We have attempted to reconcile the principle with the reality by stating that, if a law neither burdens a fundamental right nor targets a suspect class, we will uphold the legislative classification so long as it bears a rational relation to some legitimate end. See, e.g., Heller v. Doe, 509 U. S. ___, ___ (1993) (slip op., at 6).

["any reasonably conceivable state of facts that could provide a rational basis for the classification"]

The fact that rational basis is not met underlines the weakness of the case. But, the onus is on the state. Some logical rationale or one that has some purpose that is not narrowly tailored is not enough. This is the clear problem of most arguments that even have a shred of logic -- for instance, let's say marriage is deemed important for children, and heterosexuals are more likely to have children by mistake. Marriage serves as an institution that safeguards the results. All the same, this doesn't explain why you have to deny marriage rights to same sex couples, putting aside that they too have children that special favoritism would harm. And, only a limited fraction of married couples would be covered anyways. The state interest is not "narrowly tailored" and is based on "overbroad generalizations."

Any reasonable use of "rational basis" would suggest bans on same sex marriage [you need not be "gay" or "homosexual" to obtain one, so "gay marriage" or "homosexual marriage" appears to me misleading] while different sex marriage are allowed does not hold water. Fantasies about preventing polygamy or question begging appeals to tradition [weakly followed in California, since traditionally domestic partnerships with nearly all the rights of marriage was not in place] aside. The term, however, is sometimes used very loosely, especially when regulating economic matters. So, there is some weak claim of a case there. I address the matter here.

But, since marriage rights and/or sex discrimination (the claim here seems to me largely a backdoor equal protection claim in the first instance -- you have to show that classification by sex is illegitimate in the marriage context) is involved, a stronger case must be met. The law specifically favors a partner of a certain sex. Homosexuality clearly is involved as well but the standard of review there has not been firmly established though even there rational basis cannot merely be met based on tradition or dislike. And, a good case can be made that heightened review is warranted there as in the case of sex.

The lack of rational basis has led the Supreme Court to not need to firmly address this matter in the few cases where it was relevant though some think "rational basis" was applied more strictly here on the down low. Maybe so, but the bottom line holds: marriage and sex discrimination clearly does warrant heightened review, making Prop 8 and other comparable burdens that much harder to defend.

---

* It is said that Ruth Bader Ginsburg used "gender" in the 1970s because "sex" discrimination sounded a bit too risque. But, the terms are not really interchangeable. "Sex" is biological, "gender" is cultural. "Masculine" is not the same thing as "male." A butch lesbian is "masculine" but not "male." No matter how much you act like a female, you had the right to vote in 1900, unless there was some other reason you were deprived of the suffrage. The Nineteenth Amendment speaks of "sex" not "gender."

This is important because a large part of this issue rests on what is deemed to be the "natural" activities of each sex, which turns out to be more a matter of societal gender roles. It is possible to talk of "gender discrimination" and know of what you speak, including arbitrary gender roles assigned to a certain sex. But, separating the terms has its benefits too.

Embryonic Stem Cell Funding Ruling

And Also: I like Laura Linney, but as with some past efforts, The Big C on Showtime is not really a great use of her talents. Unpleasant characters don't help. It's like Weeds, I guess -- sounds like I should like it, but the style annoys me.

[And Also: In the "well I have to be at least a minor tool or I will ruin my cred department," Saletan calls the ruling "crazy," but says it is not really the job of the courts to settle the question. The question here is the actual meaning of the provision, genius. The fact that the Senate is where majoritarian legislation goes to die also isn't referenced -- the Dems have a majority now, so it should just be so easy. Well, if life was sane, yes.]

On the hot button judicial review front:

A U.S. District Court judge's ruling yesterday halting the federal funding of embryonic stem cell research with a preliminary injunction pending a trial has left the scientific community stunned, and Congress wondering if any next steps are possible in an election year.

As on might recall, one of President Bush's first "serious moves" was an extended reflection on how to compromise on the stem cell funding issue, resulting in a much criticized "compromise" that allowed some funding on existing stem cell lines, a compromise that very well might be deemed illegal under this ruling. The issue was clearly important to him:

President Bush issued the first veto of his five-year-old administration yesterday, rejecting Congress's bid to lift funding restrictions on human embryonic stem cell research and underscoring his party's split on an emotional issue in this fall's elections. ... Some conservatives also criticized the veto. "I am pro-life, but I disagree with the president's decision," said Senate Majority Leader Bill Frist (Tenn.), a heart surgeon who is weighing a 2008 presidential run. "Given the potential of this research and the limitations of the existing [human embryonic stem cell] lines eligible for federally funded research, I think additional lines should be made available."

It would be ideal if such legislation was passed again, this time the President presumably would sign it into law, but the idea that something even some conservatives support would actually get through the current basket case U.S. Senate is somewhat unclear. The lawsuit targeted an executive order that tried to expand funding restricted under Bush (rescinding a more open policy under Clinton) and still stay loyal to a current funding barrier, regarding:

(1) the creation of a human embryo or embryos for research purposes; or (2) research in which a human embryo or embryos are destroyed, discarded, or knowingly subjected to risk of injury or death greater than that allowed for research on fetuses in utero under” applicable federal regulations.

Lest we get a totally wrong idea here, the district court judge [D.C., so this isn't just about research in institutions in one part of the country, but funding at large] was not just being a "wingnut" or whatever regarding this issue. First, he originally rejected the standing of the plaintiffs, who were concerned about protecting embryos and competition of funding (wishing to obtain government funding for another type of stem cell research), but was overturned as to the second claim. The reversing panel did lean conservative, but the reasoning could easily one day apply to a liberal group seeking funding.

Second, he rested his argument on the meaning of the statute, not some overall belief that stem cell research was wrong. Again, he originally would have tossed the suit out on standing grounds. This puts a somewhat (but see below) softer light on this dubious argument, though the "balance of hardships" analysis [last bit added] still is rather weak:

The balance of hardships weighs in favor of an injunction. Defendants argue that two interested parties would be injured if the Court issues an injunction: ESC researchers and individuals who suffer from diseases that may be treatable in the future as a result of ESC research. The Guidelines give ESC researchers, like plaintiffs, the opportunity to compete for NIH funding. The injunction, however, would not seriously harm ESC researchers because the injunction would simply preserve the status quo and would not interfere with their ability to obtain private funding for their research. In addition, the harm to individuals who suffer from diseases that one day may be treatable as a result of ESC research is speculative. It is not certain whether ESC research will result in new and successful treatments for diseases such as Alzheimer’s and Parkinson’s disease.

Plaintiffs’ injury of increased competition, however, is not speculative. It is actual and imminent. Indeed, the Guidelines threaten the very livelihood of plaintiffs Sherley and Deisher.

He wanted to hold that the harm to the plaintiffs here was speculative but was overruled. But, if the regulations were legitimate, the argument would still fall -- embryonic stem cell researchers would be wrongly denied funding. The idea that this would not in some fashion affect private funding also sounds -- to be generous -- questionable. See also here. So, the bottom line rests on the judge's interpretation of the statute. Judicial review allows overriding executive and legislative action when it runs counter to the law of the land, including the federal law being executed. [Art. VI]

President Obama,* and Bush in a lesser way, in effect thought the provision barred the actual destruction of embryos, not all research on the product of such action. Clinton as well. After all, if you allow research on existing lines, and give a penny of government money to someone connected to it, the alternative would be to be supporting "research in which" an embryo is destroyed. The use of the present tense appears to prevent funding of direct and active events, not the result thereof. See here for a scientific perspective [including comment "Zach"].

The judge disagreed:

This prohibition encompasses all "research in which" an embryo is destroyed, not just the "piece of research" in which the embryo is destroyed. Had Congress intended to limit the Dickey-Wicker to only those discrete acts that result in the destruction of an embryo, like the derivation of ESCs, or to research on the embryo itself, Congress could have written the statute that way.

The important thing to remember here is that this is not merely about a reasonable interpretation of the statute in question, though many don't find this to be one. Under what is known as "Chevron deference," if a statute is silent or ambiguous, administrative agencies are given the discretion to put forth a reasonable interpretation. This is one reason why who appoints these people and who fills the positions are so important -- there is a great level of discretion, which can have significant impact in lots of areas. Something to keep in mind when votes depend on personal likability or some other such rationale.

But, the judge here held that the provision -- at least as a preliminary matter -- does not appear ambiguous. So, discretion is not there. This is dubious at best. At the very least, there appears to be some debate over what the provision allows, even if on balance you think Bush's policy (which again very well might have fell under this ruling) is the best. Again, this isn't just about morality or whatever -- it is about what the law says. Not what Obama should do even ala Bush, but what he must do. An injunction of significant funding should not rest on such a slim reed. Is this a case of a judge overruled who bends the other way?

As seen in the Prop 8 battle, this is long and drawn out process. The best policy in these cases is to have Congress pass a new law that clearly (as clear as they can) sets forth the rules. But, modern realities hinders such votes, especially in controversial areas. Still, stem cells is one of those areas where there is some bipartisan support, so there is hope. As to advances in the area, the idea that developments have made the matter moot is rather dubious.

To be continued.

---

* In part:

The Obama administration expanded the number of stem cell lines created with private money that federally funded scientists could research, up from the 21 that President George W. Bush had allowed to 75 so far. To qualify, the NIH insisted on evidence that the woman or couple who donated the original embryo did so voluntarily and were told of other options, such as donating to another infertile woman.

Some were upset he didn't go further; I do not claim to know the ins and outs of the rules set forth. Still, baby steps is a norm here -- see also, his administration's piecemeal attempts to protect same sex couples when federal law allows them to do so.

R.A. Dickey

Not just his performance is refreshingly different. [A missed double play and questionable call opened up for a seventh inning home run, but the team actually showed life and won in the 9th against actual talent. Even Castillo shined. Win one for R.A., huh?]

Invisible Monkey

That's funny.

Stem Cell Ruling

Fine. Pass a new law, clearer law. Congress tried but it was vetoed. A few Republicans actually supported it, but who knows if they are less sane over in the Senate now. Admittedly, that's not something to bet the house on in many cases. But, Congress is ideally the place.

Sunday on TV

And Also: The Girls Who Went Away: The Hidden History of Women Who Surrendered Children for Adoption in the Decades Before Roe v. Wade by Ann Fessler (who was such a child) discusses the subject with many first person accounts. Well written and very empathetic.

As summer starts to fade a bit, Sunday Night Lifetime dramas are closing out their season.

Drop Dead Diva had a somewhat silly plot -- a man dresses up as a clown at work as a way to grieve for his wife (he has no case), but uses it to address the feelings of Jane and Grayson. Jane (with a nice assist from Stacy, who had a chance for a subplot of her own -- we rarely see her get a bit serious) believes it is necessary to honor the memory of "Jane" -- after all, she is gone but no one has grieved, since no one knows she has died. It was nicely done. Kim, who is a bit of a you know what but still has a sensitive side, also got a chance to get personal.

There is a two hour season finale left but Army Wives did end things, this time without a cliffhanger of sorts, at least one involving some violent event. It appeared that it might when Gen. Holden was captured, but surprisingly the plot wound up by the mid-point of the episode. This is a bit curious -- if you are going to do something like that, why do so in such a brief fashion? Handled fairly well though. Pamela (job offer/Chase wanting her back) and Jeremy (marriage proposal) did leave us hanging, but the episode mostly ended up on a clean note (high school graduation, baby born, back on full duty).

It was overall a good episode, including a couple extra touches, like Pamela's partner upset at how he "settled" (or was it being "content"?) in his career. A wife grieving for her husband (with a nice regional accent, not some bland voice) and solider trying to be able to recall a traumatic event in therapy also was included. It was a particularly rich episode. Like in movies, that often is a sign of a good complete package. Anyways, Denise having a baby even things out some -- two seems to be the required number of kids, at least at some point. Joan just started late, that's all.

While I'm here and before I start watching S3 later on, a bit more on Friday Nights Lights S2. As I briefly noted, I did not really like it as compared to the 1.5 seasons (front/back) I have seen thus far. It didn't help that the season is fill with downers. The coach going to TMU was like some bad idea disposed of quickly; meanwhile, his daughter has a hard time of it (and is pretty bitchy about it), while her ex has a short fling with a live-in health aide (one of several questionable affairs of the characters). I wasn't totally on board with that (though I guess could believe it), besides things again ending on a bad note.

It was not just that the story lines were a bit depressing, but it seemed like the characters were a bit forced at various times. It is a bit hard to explain, but it seemed they were much smoother the first time around, and in the Fourth Season. There were various good touches (Tyra/Landry was nice, Buddy taking in the guy etc.; and some of the hard to take stuff, including the postpartum depression was well done at times), but again, I didn't feel the need to fast forward in the first season, which was a third as long. The second and third season are in fact almost like one extended season, the second ending before football season even ends.

Well, S3 is on its way, and others do say it is better. As to the first part of S4, I hope they re-show the episodes as a lead up to the new season. If not, they will soon be available on Netflix. Again, I love these characters, even if the plots in S2 were not to my liking. One more thing: yeah, I know Peter Berg, but as an actor!

Another Reason Lots Of People Have To Go

Today's 2-1 loss to the Pirates, the dregs of MLB, underlines the state of the Mets. Going 4-3 against the Astros and Pirates, laughable props for showing a bit of life against the Pirates, is pathetic. Even if some Cubs fans, some finale for Lou guys, would have little sympathy.

Latest Jen McCreight Words of Wisdom

A recently discovered kewl role model gave a good speech on "walking the fine line between controversial, interesting events and needlessly offending people" that reflects how I try to be online. The need of some to be crude, even if to "trolls," turns me off. More Jen!

Julian Assange Update

Since someone just looked at my Wikileaks post, a quick update. For those pissed off at the lax and "dangerous" nature of the leak. And, for the mighty convenient allegation of a crime.

9/11 Account

Joshua Marshall requested an account of 9/11, and if asked, I would also cite the 9/11 Commission Report. Did not read the others.

Perils of Fiction

Judicial Nominee? You Can Talk Too

In a 5-4 ruling, the Supreme Court held in the negative on this point:

The question presented in this case is whether the First Amendment permits the Minnesota Supreme Court to prohibit candidates for judicial election in that State from announcing their views on disputed legal and political issues.

The primary dissent was written by Justice Ginsburg, who supported a more restrictive rule for judicial elections, which makes her supportive comments on Justice Kagan's approach during her hearings understandable. Justice O'Connor worried about the impartiality of judicial elections, but deemed the ban unconstitutional under under the First Amendment. Her approach continues to be to support changing them as a policy matter: if you want judicial elections, the concerns addressed by the dissent come with the program.

Justice Scalia in the majority opinion noted that the key issue here was to avoid impartiality, that is, partiality to a certain specific party. It was not to avoid voicing an opinion on an issue, which at any rate does not mean you cannot change your mind once you actually became a judge. Pretending a judge did not have a side on issues was if anything a bad idea:

A judge’s lack of predisposition regarding the relevant legal issues in a case has never been thought a necessary component of equal justice, and with good reason. For one thing, it is virtually impossible to find a judge who does not have preconceptions about the law. As then-Justice Rehnquist observed of our own Court: “Since most Justices come to this bench no earlier than their middle years, it would be unusual if they had not by that time formulated at least some tentative notions that would influence them in their interpretation of the sweeping clauses of the Constitution and their interaction with one another. It would be not merely unusual, but extraordinary, if they had not at least given opinions as to constitutional issues in their previous legal careers.” Laird v. Tatum, 409 U.S. 824, 835 (1972) (memorandum opinion). Indeed, even if it were possible to select judges who did not have preconceived views on legal issues, it would hardly be desirable to do so. “

The case was at issue in a recent lower court ruling involving judicial elections, Bauer v. Shepard, summarized at Findlaw:

In plaintiffs' challenge to certain provisions of the Indiana Code of Judicial Conduct, claiming that they refrain from speaking about controversial issues such as abortion or from filling out questionnaires about abortion sent by the Indiana Right to Life, Inc., because they fear the prospect of sanctions under the Code, district court's holding that all of the contested provisions are constitutional is affirmed where: 1) district court's judgment that a plaintiff's challenge to the pre-2009 Code became moot is modified as it is unripe; 2) the fundraising provisions are constitutional; 3) the partisan-activities provisions are constitutional; 4) the "commits clauses" provisions are not overbroad; and 5) the recusal clause does not present a constitutional issue at all.

Again, voicing one's position on various sensitive matters, including matters of law, was not deemed in violating to said code of conduct requiring the usual freedom of bias or appearance thereof and so forth. It might be a good dodge to claim that answering such questionnaires were necessary for judicial neutrality and such but that is quite different. For instance, justices can dissent in one case and try a matter on the same general subject and not be deemed biased. Justices wrote on matters they decided upon as law professors and so forth such as this nominee to the bench (In Reckless Hands is a good book). Will her family connections be more examined by any confirmation hearing than her views?

I reaffirm my belief that Kagan and other judicial nominees can and should be subject to more Q&A on their judicial ideology and legal views. The dodge offered doesn't work in judicial elections and should not in the indirect political process used in the federal nomination field. Kagan was right the first time.

Engagement

Andrew Sullivan cited this, removing the context of the original (good thing; it has some baggage):

[I]t is generally a good thing for the views of large numbers of citizens to be part of the larger public conversation. This allows others to gauge those views and to make judgments about them, and it helps dissipate the anger that tends to build among people who would otherwise feel excluded. My libertarian friend interpreted this as a straightforward utilitarian claim -- i.e., so the anger will dissipate and these people won't become violent extremists, ergo we will save lives. That's not quite how I would put it. This isn't really a hypothesis we can rigorously test. Rather, it is a gut instinct.

Yes. The original argued:

I think it’s safe to say that many people really do believe we should ignore the sentiments of large numbers of citizens. Some are libertarians, with an instinctive fear of populist excess, and others are liberals who embrace populist language when it is directed at those characterized as rich and powerful but not when it is directed at those characterized as poor and vulnerable.

Contra Howard Dean arguing that the Islamic Center should be an opportunity for a reasonable dialogue. But, I don't really buy this. Who are these liberals who simply want to "ignore" the sentiments of large numbers? All groups in some fashion think there are various cases where large numbers does not translate into the right to force action. See, e.g., Cheney on the Iraqi Occupation or conservatives on gun rights. Same with current events -- saying that same sex couples or Muslims deserve equal rights does not "ignore" people.

It says that majority rule does not always win out in our society. Sometimes, liberals argue that the "large number" deep down has certain concerns that are being addressed, they aren't really being ignored. Either others are for some reason taking advantage of the concerns for their own misguided ends (e.g., Dick Armey and some Tea Party groups) or the specific outlet (e.g., a conservative God and guns) is used that does not necessarily truly address the concerns. We should simply ignore the sentiments of these people -- if anything, we should go a bit deeper and reach their true concerns. Sometimes, they do seem "foreign" (see, e.g., concerns of Amy Sullivan that Democrats don't respect people of certain faiths), but the isolation here often is exaggerated.

Or, simply put, the "large number" is wrong about something (e.g., gays), but this is still not simply about "ignoring" them. For instance, to go back to the opening quote, I welcome the idea of debating with people, including those with whom I basically simply disagree. Respectful debate and trying to obtain some common ground (e.g., even if you don't like gays, you might accept civil unions or at least some rights for them, such as not harassing them in high school) is important. "Ignore," however, is not about not offering them what they want. Sometimes, that simply is not possible.

Clearly, sometimes it is hard to put too much effort in respecting the other side, especially when they are not playing fair or want to deny basic things that you feel results in real hardship or worse. One pet peeve of mine is those who go beyond not agreeing with your side, but go to the next level -- your side is really not playing fair. A judge is a "tyrant" because the person disagrees with the constitutional interpretation involved, when said person would not toss around that word if said judge struck down a law hurting their side. After all, the other side doesn't play fair. It's all political for them. At times, apparently, this justifies simply not taking a serious look at the other side, even if you don't agree, resulting in knee-jerk analysis that is not only wrong, but simply lame.*

Open debate and respect is important, but the problem is that this cannot be taken to simplistic extremes. Not going along with the herd, especially when they are not really informed, is not "ignoring" them. It is not "disrespecting" them as well if their inclinations are toward violating rights or doing wrong-minded things. Also, you really need true debate and fair rules, which is not what Republicans in Congress are doing these days -- the Democrats' balance of power are quite moderate, even conservative on certain issues, but Republicans for political reasons alone don't want to play. Who is "ignoring" now.

True engagement -- tough if necessary.

---

* No one is free from blame here, but progressives do seem as a whole more likely than conservatives to be willing to look at an issue calmly, since progressives are less likely to be so tied to absolutes that reasoned analysis is deemed almost dangerous. Some libertarians are open too (some conservatives too, but less as a norm these days) but some have true believer disease in that area as well. Those more open to government realize the value of compromise more than those who want to drown it in bathtubs.

Clemens Indicted

For Obstruction Of Congress, False Statements, Perjury ... yeah, him. Meanwhile, three of four games vs. Astros blown late, one eventually won real late. Tonight's game is particularly depressing: great pitching (bad hitting), then suddenly three quick runs in the seventh.

Beginning of the End?

And Also: I saw the second half of Season 2 of Friday Nights Lights on DVD. It was okay, characters great, but skipped over some tedious plot material. S1 and the second half of S4 were much better.

I did not see the extended coverage of "a key milestone in the withdrawal of American forces more than seven years after the US-led invasion that ousted dictator Saddam Hussein," Keith hosted last night on the "last US combat brigade" leaving Iraq. Partially it is a matter of:

On September 1, the US mission in Iraq will be re-christened "Operation New Dawn", from "Operation Iraqi Freedom" -- the name given to American operations since the invasion. To fill the gap left by departing troops, the US State Department is to more than double the number of security contractors it employs in Iraq to around 7,000, the New York Times reported.

I don't see a segment among the many (watching a bit now -- it's interesting) is labeled as addressing this matter. We have been taught by various segments on Rachel Maddow to distrust security contractors, but now more will go there. Will some be related to Xe or whatever they call themselves now? Keith at one point made a telling comment of the "symbolic" nature of this final removal. As another blog noted:

Yet, lost beneath the headlines and fanfare is the following fact: around 50,000 troops will remain in Iraq. The government is not describing them as combat troops. Instead, it is calling these soldiers advisers, as the Washington Post reports:

By the end of this month, the United States will have six brigades in Iraq, by far its smallest footprint since the 2003 invasion. Those that remain are conventional combat brigades reconfigured slightly and rebranded "advise and assist brigades." The primary mission of those units and the roughly 4,500 U.S. special operations forces that will stay behind will be to train Iraqi troops.

The Iraq War will continue to exact financial and physical costs on the United States and the people of Iraq.

The idea that these troops, tens of thousands overall, will not be involved in any military type activities, including loss of lives, to me seems a bit dubious. There is also another year for this new mission, whatever they call it, to go on. The spokesman interviewed by Rachel said we shouldn't call this a "war." That has some importance (just as those held in Afghanistan), but let's see how much that matters. I like Keith remember another "ending" some years back of combat operations, even if this time the qualifier "major" isn't included.

A major milestone, but the journey continues.

Is That SOOOOO Hard? [2]

The community board, which includes many people who lived through the 9/11 attacks, overwhelmingly voted to approve this proposal and Senator Gillibrand supports the board's decision.

-- Statement to TPM

This (somewhat dubiously) was put in a weak category in the heroes/villains/cowards groupings, but it shows how to play it pretty safe without being an a-hole. Again, score one for Kirsten!

Is That SOOOOO Hard?

And Also: Bitterly Divided: The South's Inner Civil War by David Williams, whose own ancestors were involved, was interesting, but mighty repetitive and a bit exaggerated. It also makes the home front portrayed in Cold Mountain look benign at points.

Ted Olson, whose wife died on one of the planes:

I do believe that people of all religions have a right to build edifices or structures, places of religious worship or study where the community allows them to do it under zoning laws and that sort of thing. And that we don’t want to turn an act of hate against us by extremists into an act of intolerance for people of religious faith. And I don’t think it should be a political issue. It shouldn’t be a Republican or Democrat issue either. I believe Governor Christie from New Jersey said it as well, that this should not be in that political partisan marketplace.

Contra "let's compromise" Dean. Some sanity though.

K-Rod

This is a good analysis of the money issue but I'd add that being able to pitch one inning is not really a sign of being okay. More: Wow.

Quick Thoughts

The Ninth Circuit stayed the Prop 8 ruling which is reasonable enough. It will delay the next step for a few months. Meanwhile, saw the first half of S2 of FNL: pretty depressing and somewhat stiff stuff. The quick turnaround of coaches was pretty blithely done too.

Cut The ****

Sen. Reid has joined the concern trolls in respect to the downtown Islamic Center. Are you f-ing kidding me? As with those soooo concerned with lines now that same sex couples want to marry, I'm sick of this ****. Get your damn priorities right.

No Fault Law Signed NY

And Also: Apparently, it's time to make it official over at the NY Daily News with various articles like "2006 to 2010: How the New York Mets have flushed four years down the drain." Oh, btw, K-Rod will be out for the rest of the year, probably because of his assault. Charming.

As Judge Walker noted, the institution of marriage has undergone various changes over the years that altered its basic nature in many respects. One way that most take for granted now, though some think it immoral, is to ease the ability to end marriage. The inability of achieving divorce should be of special significance to this country given its mother country, England, underwent a major change when the Church refused to annul the marriage of King Henry VIII.

Yesterday, New York joined the rest of the country when the governor signed into law a no fault divorce law. By unilateral proclamation of one party that for six months the "marriage is irretrievably broken," divorce will be final if property and other ancillary matters have been dealt with. The wait and the need to address these issues, including child arraignments, underlines the special nature of "marriage." Some mere contractual arraignment need not have such a waiting period. But, the Supreme Court, Maynard v. Hill, has long held marriage is not merely a "contract" like any other:

Marriage is something more than a mere contract, though founded upon the agreement of the parties. When once formed, a relation is created between the parties which they cannot change, and the rights and obligations of which depend not upon their agreement, but upon the law, statutory or common. It is an institution of society, regulated and controlled by public authority. Legislation, therefore, affecting this institution and annulling the relation between the parties is not within the prohibition of the Constitution of the United States against the impairment of contracts by state legislation.

No fault divorce become common in the latter part of the 20th Century and altered significantly the institution of marriage, easing its creation and dissolution. The New York law also recognizes that another institution that has been more recognized in recent years [it did exist in the past, as noted by the defense witness cited by Judge Walker, in some societies], same sex marriage exists:

It is the intent of this legislation to grant full recognition and respect to valid marriages of same-sex couples to obtain relief under New York State laws and in New York's courts. While the Domestic Relations Law uses the terms "husband and wife" in some places and "plaintiff and defendant" in others, in using the terms "husband and wife", it is not the intent of this legislation to preclude access to relief under the Domestic Relations Law by same-sex couples with valid marriages performed outside the state.

If California, however, only protects a "domestic partnership," this rule would not apply. The failure of full faith and credit is but one matter that makes that regime unequal. Of course, New York has its own problems -- why recognize out of state marriages, if the marriages are not in all intents and purposes as valuable and equal as those that are not protected when New York itself provides the marriage license? Sometimes, comity justifies that, respecting marriages in nearby Connecticut for instance, but still ... why not do it all the way?

Focusing just on this law, the old way required a one year separation and consent of each party for "no fault" to work. But, many are not able to live independently like that or do not, and sometimes one party will not consent. This results in some sham marriages, or at least, marriages that are not really marriages in most respects, but legally deemed as such as a sort of legal fiction. Marriage rights usually is a way the government aids in the promotion of happiness, here it was often an artificial way to hinder that process. And, it could often hurt the party with less power, the other able to handle things just fine.

And, I can understand opposition from conservative groups, but NOW? One article said that they are "worried that it could make it easier for wealthy men to hide assets during a divorce proceeding," but how? Putting aside the benefit to women in relationships where the man refuses to divorce and separation might not be possible (e.g., a battered woman without the means to live alone), the new law still requires property and other matters be settled. If the woman thinks assets are being hidden, she can challenge the settlement.

To summarize:

Up to now, the only grounds permitted for divorce in New York have adultery, abandonment, cruel and unusual treatment, imprisonment of one of the spouses and separation for one year. Judges have frequently been forced to reject petitions for divorce.

"By removing the requirement to prove fault, divorcing couples and the courts will no longer have to waste resources litigating on whether a marriage should end, but will be able to better focus on issues such as the welfare of the children, fair division of marital assets and other economic concerns," said Stephen P. Younger of Patterson Belknap Webb & Tyler and president of the state bar. "The court system will ultimately realize substantial cost savings."

Also, related laws were also included:

Mr. Paterson also signed another bill favored by no-fault divorce advocates, A7569/4532, which requires payment of counsel and experts' fees to the "non-monied" party in a divorce action. Bill sponsors said the measure would level the playing field and allow the spouses—generally the wife—who has made little or no money during a marriage to protect their interests during a divorce.

Finally, Mr. Paterson also indicated that he had signed A10984/S8390, which will establish a schedule for temporary maintenance payments to non-monied spouses as their divorce proceedings move toward finality. The measure directs the state Law Revision Commission to study the effects of divorce and the new temporary maintenance schedule and report to the Legislature and governor on possible changes.

I will read up more on this, probably, but at first blush, this looks to be a good thing. New York lagged behind other jurisdictions and this led to some troubling results.

TV Quickies

The disrespect of the 4A aside, tonight's Army Wives was a good murder mystery plot; Drop Dead Diva was more average. Lost in Austen is today's DVD pick; a bit too long, but a good fantasy about truly being lost in a fictional world. More Elizabeth Bennet please!

"This is America"

[Update: Glenn Greenwald et. al. are now saying Obama is somehow walking back from his comments, noting how much of a "very limited nature" they are. Digby is linked with a usual "what a weak willed loser" type of analysis.

But, I'm with TPM. What did they read the first time? Obama didn't "support" the choice directly; he said they had the right, pursuant to local ordinances (and local officials, nearly unanimously, did authorize their actions), to do what they are doing. This to me was a good thing to do, especially mixed in with some nice words about Muslims as a whole. The overall message being sent is supportive -- you don't usually emphasize rights like this when let's say the KKK wants to march or something.

As to avoiding the question if this is "the right thing to do," getting involved in specific placement questions like that really is likely to be troubling. His opinion on every odd thing might be raised and isn't that more a local zoning issue? Again, the two questions are likely to be felt to be tied together anyways, but not explictly so. Best of both worlds in a way. {Last few sentences added.}

I call, like TPM, false controversy. Also, the reference to "lower Manhattan" is helpful since all this talk of "Ground Zero" implies it is actually being built there, not blocks away in place of a coat factory building. Sacred ground, is it?]

When judging various controversial matters in recent days, we have to remember who we are. There has been some controversy over the building of an Islamic Center in lower Manhattan. Confusion aside, no, it is not being built on the ashes of the Twin Towers. It is planned for a few blocks away, replacing a Burlington Coat Factory store. The local planning board, with one exception, okayed the deal. The mayor (my mayor) supported the move eloquently:

“The simple fact is, this building is private property, and the owners have a right to use the building as a house of worship, and the government has no right whatsoever to deny that right. And if it were tried, the courts would almost certainly strike it down as a violation of the U.S. Constitution.

Furthermore:

“Let us not forget that Muslims were among those murdered on 9/11, and that our Muslim neighbors grieved with us as New Yorkers and as Americans. We would betray our values and play into our enemies' hands if we were to treat Muslims differently than anyone else. In fact, to cave to popular sentiment would be to hand a victory to the terrorists, and we should not stand for that.

But, others have been upset. They think it a travesty. President Obama disagreed:

But let me be clear: as a citizen, and as President, I believe that Muslims have the same right to practice their religion as anyone else in this country. That includes the right to build a place of worship and a community center on private property in lower Manhattan, in accordance with local laws and ordinances. This is America, and our commitment to religious freedom must be unshakeable. The principle that people of all faiths are welcome in this country, and will not be treated differently by their government, is essential to who we are. The writ of our Founders must endure.

The Muslims here are part of our nation, one with core values:

They are part of an unbroken line of Americans that stretches back to our Founding; Americans of all faiths who have served and sacrificed to extend the promise of America to new generations, and to ensure that what is exceptional about America is protected - our commitment to stay true to our core values, and our ability to perfect our union.

I don't think the Omar Khadr trial truly stays true to these values. One lawyer involved in human rights cases in Britain put a certain spin on the issue, saying that he can be tried by a military trial for alleged violations of laws of war (and perhaps should have combatant immunity), even given his age (which can be treated as a mitigating factor), but still the trial is trouble:

My objections are to (i) the trial taking place at all in Guantanamo Bay, out of sight and out of mind and largely “under the radar” of public scrutiny and (ii) the flawed procedure of the Military Commission process. ... It says much more that the Court has ruled confessions admissible – see Omar Khadr’s trial has been tainted by coercion.

This is a trial which should not have proceeded and the international reputation of the United States will only be damaged as it continues.

After all, this is America. Is this supposed to be the face of the military commission process?*

---

* One person who has angrily denounced this trial is Glenn Greenwald, who spends much of his time in Brazil. He doesn't do so for the weather. His partner lives there and under U.S. law -- unlike there -- residency allowances are not provided to same sex partners. Again, is this really America?

Closer? Who Needs a Closer?

No closer? No problem! Just have two complete games, one a one-hitter (by the pitcher; the Mets never had a no-hitter). The team had the most shutouts in the league. Consistency -- first two game winning streak since June -- well, not so much. No Perez today!

2nd Cir. Overturns Bill of Attainder Holding

As suggested here, the Congress enacted a "bill of attainder" by targeting ACORN's funding by in effect prosecuting them for crimes that some fakers implied they committed. A district judge agreed, but now is (wrongly) overruled. Form over substance.

Who Knew?

Before I started watching FNL, I saw Legion, which co-stars Adrianne Palicki. Yeah, Tyra. Meanwhile, a check on YouTube and who knew? Chelsea Handler, the off color cable show host, loves the show.

More Mets News

A Mets beat writer assured us on the WFAN today that Perez will not start on Saturday. I'll be convinced when it doesn't happen. The Mets actually had a good day, but still not two in a row (last occurring in June). And, yes that was Ron Darling in Shallow Hal.

One just has to laugh

Saw a reference that Oliver Perez might be starting on Saturday (the usual guy back in the bullpen, apparently to help blow games), which is amusing and all in itself, but now this. Mediocrity ... if only! [Tidbit: Citifield has a "holding cell" where K-Rod was held the night.]

"Rational Basis" Should Be Rational

And Also: The Last Gasp: The Rise and Fall of the American Gas Chamber by Scott Christianson provides a useful comprehensive summary, including its origins in other (civil and military) contexts. Its style is flawed though, a trudge early, a bit too cursory late.

The debate over the Prop 8 ruling is fairly tedious on various grounds. One argument repeatedly made is that marriage is a state issue, so the federal courts should leave it alone. This runs into Loving v. Virginia:

Marriage is one of the "basic civil rights of man," fundamental to our very existence and survival. Skinner v. Oklahoma, 316 U.S. 535, 541 (1942). See also Maynard v. Hill, 125 U.S. 190 (1888). To deny this fundamental freedom on so unsupportable a basis as the racial classifications embodied in these statutes, classifications so directly subversive of the principle of equality at the heart of the Fourteenth Amendment, is surely to deprive all the State's citizens of liberty without due process of law. The Fourteenth Amendment requires that the freedom of choice to marry not be restricted by invidious racial discriminations. Under our Constitution, the freedom to marry, or not marry, a person of another race resides with the individual, and cannot be infringed by the State.

Here gender/sex is the illegitimate classification. Another argument is that there is a "rational basis" for Prop 8. The ruling in fact argued that strict scrutiny applies, but that even rational basis is not met. This review in the eyes of some is easy to meet. For instance, allow same sex marriage and state recognition of polygamy might be threatened. Mind you, as the person arguing Loving for the state of Virginia noted in respect to threat to family harmony admitted, the argument is weak. Citing it doesn't me "I" believe it to be true. It just is credible enough to meet the test.

IOW, the review doesn't really require rationality. Any honest analysis would suggest that polygamy is not threatened when same sex marriage is allowed, particularly when same sex domestic partnership with most of the rights of marriage is already in place. Particularly if the state, by state constitutional compulsion, gives strict scrutiny to same sex classifications in every other respect. Anyway, wouldn't allowing same sex sodomy also rationally be believed to cause this? The usual parade of horribles were made there, such as "polygamy, homosexual, same-sex marriage, consensual incest, prostitution, fornication, adultery, and possibly even personal possession in private of illegal drugs."

This only means "rational basis" is being selectively used, some say. When fundamental rights are at stake and/or "irrational prejudice" is apparent, maybe this is fine, even if the Supreme Court isn't totally honest about it. Same sex relationships is one area where this has been done -- Lawrence v. Texas didn't bend over backwards to find some "rational" basis for what was clearly based on selective personal morality and/or prejudice. Ditto when rational basis was deemed not present because of the mess of exceptions and lousy fit that a health rationale for a law against premarital distribution of contraceptives was something that one "cannot believe." The law was if anything more credible on that basis than California's law against same sex marriage.

In other cases, "every conceivable basis" is enough. But, the basis has to have some shred of rationality:

True, even the standard of rationality as we so often have defined it must find some footing in the realities of the subject addressed by the legislation.

Such "realities" is what the fact-finding and conclusions made by Judge Walker includes. We can call this "rational review with teeth" or whatever, but it shouldn't just be about making shit up. Yes, "rational basis" need not be conclusive or narrowly tailored. It can be under or overbroad in various respects. But, it has to have some degree of credibility, "some footing" outside of make believe. Perhaps, it also is a matter of expecting a little more (see the Massachusetts state ruling that also rested on rational basis -- "real and substantial relation" and "logically believe"*) of rationality. And, as with gender discrimination, rational basis is not even enough here.

But, if it was, a fair analysis of the term would suggest it was not met.

---

* The ruling cites Justice Stevens, who put forth a good guiding principle:

The term "rational," of course, includes a requirement that an impartial lawmaker could logically believe that the classification would serve a legitimate public purpose that transcends the harm to the members of the disadvantaged class. [n4] Thus, the word "rational" -- for me at least -- includes elements of legitimacy and neutrality that must always characterize the performance of the sovereign's duty to govern impartially.

As noted by Romer, a badly fit policy "imposing a broad and undifferentiated disability on a single named group" is suspect here. The domestic partnership scheme does make this not as blatant, but marriage still provides a collection of rights, broadly denied here to same sex couples, even those who in every relevant way are the same as those who have marriage rights. Necessary neutrality is lacking there.

And, as Stevens notes, history of discrimination and so forth helps us to determine this fact. Doctrinal neatness might allow us to draw some lines, but the truth of the paths of Marshall and Stevens in the cited ruling also is convincing.

Friday Night Lights

One more thing: as usual, various teen characters are played by people years older (insert Clueless quip here on point), which at times is a bit disconcerting. When one has an affair with an older mom, it really doesn't seem that bad, since the guy looks in his 20s anyway.

Every Dog Has Its Day

One of those days -- the great MR slipped, while the Mets managed a 1-0 win versus a 17 game winner. The second 1-0 win in a few days. Meanwhile, El Duque -- who pitched on both teams -- is still trying to get the call. Is he really 44 or older? No Mets, don't take him!

Friday Night Lights: First Season

Saw this on Netflix. Overall, very good, particularly the characters. A few issues: too many miraculous finishes. Some story lines, including an attempted rape, not fully fleshed out. No real truly dark character; "Voodoo" pretty simplistically handled. Looking forward to S2.

Courts Doing Their Job

[Interesting possibility that Prop 8 could have been lost by default. This offers a suggestion that the state once was agnostic, allowing standing, but now that that the governor opposes a stay, is this an out for the Supreme Court? The below is a response to this article.]

An independent judiciary with the power to declare unconstitutional the laws of legislatures is an important aspect of our republican system of government, a recognition of the limited power of the elected branches. As James Madison said when introducing the proposal of a Bill of Rights:

If they are incorporated into the constitution, independent tribunals of justice will consider themselves in a peculiar manner the guardians of those rights; they will be an impenetrable bulwark against every assumption of power in the legislative or executive; they will be naturally led to resist every encroachment upon rights expressly stipulated for in the constitution by the declaration of rights.

The Fourteenth Amendment in particular was ratified with this principle in mind. The rights it secured -- citizenship, privileges or immunities, equal protection and due process -- were in theory at least in part or in whole already protected by the states. Due process of law was a basis of freedom with origins as far back 1215 if not before. Each state allegedly protected it, but repeatedly, it did so in the breach, especially in respect to certain classes of people. States therefore could be the enemy.

Madison knew that too. Already, the U.S. Constitution restrained states, the federal government and its justices playing a part -- e.g., states could not use paper money for debts, a federal judge declaring that unconstitutional right out of the gate. But, Madison wanted to go further, believing:

there is more danger of those powers being abused by the State Governments than by the Government of the United States

He wanted the Bill of Rights to include protections against the states involving "equal right of conscience, freedom of the press, [and] trial by jury in criminal case." As with certain other things, he failed. But, the Fourteenth Amendment did offer more national restraints, including those upheld by federal judges, time showing the problems with just entrusting fundamental rights in most respects to popular will, even state popular will.

This is what these judges did. Rights aren't just liberal or conservative, libertarian or whatever. They can protect any number of people. The people against the ruling support judicial review in other cases, "activism" yet again too often a matter of whose ox is being gored. Their ox is better, the other not, sometimes no matter what the facts hold: as fisherman noted in response to a debate in the NYT about fish feeling pain: they simply won't accept it. This is not just something opponents of same sex marriage do either.

The facts in Arizona and California are specifically about the laws of that state invading federal law. It will be made a national issue, but the law of that state should be the immediate concern. The Prop 8 case should be about California, the facts more about that state, even if some apply to all. Focusing on that, the ruling need not be as broad as some want or fear.

"Catching, but Not Releasing"

Interesting debate on how much fish feel pain and what to do about it. To make a decision, including one involving balancing options and realities, it is helpful to know the details. A careful analysis, especially with sensitive subjects, sometimes is hard to accomplish.

TV Quickies

Drop Dead Diva / Army Wives both were enjoyably easy viewing last night, the former using a haunted house plot (minus the result) used in L.A. Law (connection: CJ's law professor). Meanwhile, a pretty lame late night movie starred two FNL gals. Exciting, huh?

Full Value for Your Overpriced Movie Ticket

Good article on staying to [until?] the end of credits.

GPS Search Overruled

[Prop 8 stuff separated.]

Orin Kerr, an expert in the field, flags an interesting case that I first saw referenced on the news update portion of the paper he singles out as likely to support it (NYT; I found that a bit catty). Also discussed in this informative Washington Post article, it concerns a libertarian leaning panel striking down GPS monitoring without a warrant. Kerr doesn't buy it, including its "mosaic theory" that a search can be problematic as a whole. (One comment compared it to torture being a result of the sum of the interrogation's parts, which seems appropriate). To wit:

“A single trip to a gynecologist’s office tells little about a woman, but that trip followed a few weeks later by a visit to a baby supply store tells a different story,” Ginsburg wrote.

He added, “A person who knows all of another’s travels can deduce whether he is a weekly churchgoer, a heavy drinker, a regular at the gym, an unfaithful husband, an outpatient receiving medical treatment, an associate of particular individuals or political groups — and not just one such fact about a person, but all such facts.”

Kerr also thinks Supreme Court precedent that allows attaching beepers to cars [late update: actually, it isn't even that -- it involved putting a beeper in a container of ether which a person then obtained without knowing it; the issue of placing a beeper on the car or item in a person's immediate possession wasn't even at issue ... more evidence that Kerr is simply misguided to think the precedents, involving much simpler technology and notably different facts are so clearly on point] are applicable here. In somewhat vague language, the Supreme Court -- in a portion latched on by the panel -- implied not all beeper-like searches of a certain scope would be allowed. I think GPS technology is quite different from beepers, so comparing the two seems to me a bit "unreasonable," but wouldn't be surprised if the Supreme Court agrees with him. The discussion also addresses the logic of the opinion, which is somewhat an inside baseball matter.

Two conclusions: given the change of technology and a circuit split, see the article, Supreme Court/21st Century (the beeper cases from the early 1980s) review is warranted. If not now, soon enough. Also, given modern information collection, the "mosaic theory" or some offshoot would be a principled way to apply the Fourth Amendment. It's a different question if that is the path that will be taken.

More on Prop 8

[I cited this earlier, but decided to just post it completely here, with minor edits.]

For the reasons stated in the sections that follow, the evidence presented at trial fatally undermines the premises underlying proponents’ proffered rationales for Proposition 8. An initiative measure adopted by the voters deserves great respect. The considered views and opinions of even the most highly qualified scholars and experts seldom outweigh the determinations of the voters. When challenged, however, the voters’ determinations must find at least some support in evidence. This is especially so when those determinations enact into law classifications of persons. Conjecture, speculation and fears are not enough. Still less will the moral disapprobation of a group or class of citizens suffice, no matter how large the majority that shares that view. The evidence demonstrated beyond serious reckoning that Proposition 8 finds support only in such disapproval. As such, Proposition 8 is beyond the constitutional reach of the voters or their representatives.

There is a very good post regarding the alleged "tyranny" of the ruling, but simply put, it doesn't hold up to any real scrutiny given how most people understand the role of the courts.

The idea of some is somehow the judge was tyrannical because he overruled the will of the people, in particular based on their vote on a state ballot measure to amend the state constitution. State ballot measures can't amend the federal constitution however. See, the Supremacy Clause and Art. V (amendments). Federal judges overturn popularly voted upon laws all the time. One person told me this will be a political land mine since the '10 elections is about federal power. How about the Supreme Court overruling state handgun laws in Illinois or federal laws on campaign finance?

The opening quotation is written in the spirit of a famous Supreme Court ruling regarding pledging allegiance to the flag:

The very purpose of a Bill of Rights was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials, and to establish them as legal principles to be applied by the courts. One's right to life, liberty, and property, to free speech, a free press, freedom of worship and assembly, and other fundamental rights may not be submitted to vote; they depend on the outcome of no elections.

Various elected officials in the state of California agree. The governor rejects the need to stay the ruling pending appeal (a mixed blessing probably, but many more marriages will show the normality of same sex marriage, as was the case in other jurisdictions) , in part: "With the branch of government charged with making constitutional determinations now having made those determinations here, the Court’s ruling should take effect." The attorney general (elected in California) agrees. "As the Attorney General has consistently stated and as was convincingly demonstrated at trial, Proposition 8 violates the Fourteenth Amendment of the United States Constitution." The state legislature earlier wanted to pass a state law supporting same sex marriage, but the governor thought the state constitution prohibited it. All the same, the governor recognized:

our state now recognizes that an individual’s capacity to establish a loving and long-term committed relationship with another person and responsibly to care for and raise children does not depend upon the individual’s sexual orientation” The Court’s decision here is consistent with California’s long history of leading the way in recognizing the rights of gay and lesbian families to order their relationships and manage their day-to-day lives.

Some people don't like this principle. But, it is the one federal and state judges are obligated to follow as a matter of precedent and common understanding of their role. The same applies to the specific ruling made here. Some critics say things like "I think tradition is reason enough to warrant Prop 8," but the Supreme Court has long rejected that rule. A lower federal judge is supposed to ignore that? Some think moral opposition to homosexuals should decide the question. Again, Supreme Court precedent rejects that.

Reading the ruling answers many other complaints. Some think marriage should be merely for different sex couples for reason of children; state practice belies the fact. I was told that "before 2001," no nation recognized same sex marriage. Not true as noted by the ruling; in fact, one of the defendants' own witnesses (in a deposition, most not wanting to testify in public, even after the Supreme Court rejected the right to broadcast the trial to more locations) is cited on the point. But, other cultures aren't the ultimate test, ours is, including as a matter of constitutional tests a federal judge follows. The ruling also underlines the many fundamental changes, particularly in regard to gender roles, marriage underwent over time, both by legislative and judicial means.

This also helps to answer the polygamy concerns, as does repeated cites to Supreme Court precedents involving marriage underlining its monogamous nature. The ruling holds that California is practicing sex discrimination (there is some sexual orientation discrimination too, but it's interconnected in this case), which is rejected in this country, including by Supreme Court precedent. Likewise, it shows -- as required by Supreme Court precedent that looks in part toward societal practice -- how same sex relations grew over time in our history, barriers to marriage largely a result of discrimination and the minority status of homosexuals. California itself protects same sex unions (including regarding adoption) in most respects. Application of all of this to polygamy is much harder, particularly to the degree polygamy in practice can in fact be show to lead to inequality and contrary to Supreme Court citations of a "bilateral loyalty."*

As to breadth of ruling, though the opinion is ultimately a broad attack on the basic idea of not allowing same sex couples to marry, the specific situation in California is referenced repeatedly, including the protections given to homosexuals not present in other states and the animus showed by the Prop 8 campaign. The very conclusion cites "California," not "fifty states" or even the area within the Ninth Circuit. So, it is imho possible for the appeals court to rule narrowly, applying it simply to the state of California. I think personally this is the best thing to do. This is usually how things go -- many major rights now enjoyed are a result of a stream of rulings, not doing everything at once, even if they could do so. The opinion might not be totally consistent, but then even in Romer v. Evans, complaints were made, including no mention of Bowers v. Hardwick.

As to the equality of domestic partnerships, the defendants themselves admitted it is not equal to marriage. One fundamental difference is that it might not be recognized in other states while "marriage" -- even marriages the state itself don't authorize -- might be. Another is societal recognition, including in regards to meaning and benefits (e.g., workplace benefits). It is 'separate but equal' at best, which in the race context was shown to be inherently unequal. Here too. So, those who say that domestic partnerships are really equivalent in all but name fail too.

Overall, applying the evidence provided, California practice, Supreme Court precedent and other means -- not mere theory of possible rationales or the like -- the ruling convincingly overturns Prop 8, its role in doing so supported by many of the top elected officials/bodies in the state. It therefore is not a violation of our republican system of government, one not a simple democracy.

As to allegations of "activism," it is notable that major homosexual rights groups opposed the lawsuit. The effort was led by Ted Olson, not liberal homosexual groups. The case brought in front of him, the federal judge was required to decide upon the merits. As to his sexuality, since Prop 8 favors heterosexuals, wouldn't they too be biased? Would we focus on the sex or race of a judge in some other case? Would Justice Thomas be allowed to decide Loving v. Virginia, his wife white? In a case about fornication, which have came about, would an unmarried judge in a relationship not be able to preside?

One blog entry spoke in support of same sex marriage but simply said that he was not convinced by the ruling. That's not very helpful, but it suggests the ultimate shallowness of the reasons in opposition. As I noted before, looking at the facts -- including the opinion itself -- makes it much harder to avoid the ultimate conclusion of the ruling:

Proposition 8 fails to advance any rational basis in singling out gay men and lesbians for denial of a marriage license. Indeed, the evidence shows Proposition 8 does nothing more than enshrine in the California Constitution the notion that opposite sex couples are superior to same-sex couples. Because California has no interest in discriminating against gay men and lesbians, and because Proposition 8 prevents California from fulfilling its constitutional obligation to provide marriages on an equal basis, the court concludes that Proposition 8 is unconstitutional.

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* As to incest, lack of Supreme Court or societal precedent in this respect as well as non-recognition by the state of California also differentiates. No general recognition except for marriage for incestuous unions. Furthermore, the ruling cites cohesive family units as a state purpose of marriage, which is violated by such unions. Also, consent is an inherent part as well, which is also a problem here in various situations.

It is harder to defend various types of "incest" requirements under precedent -- many states allow cousins to marry (and DOMA doesn't deny them federal benefits) and rules against adopted or step-siblings are not really the norm to my knowledge. I know of a case here or there that protects something like adopted or step-siblings' right to marriage. I don't think many care much about that sort of thing.

Parent/child would raise various flags referenced. Biological siblings somewhat less so [eugenic concerns are not at issue in this case but since many with genetic conditions are allowed to marry, they might be dubious] though a case can be made. But, there is a basic "are you serious" component here too -- is this really a problem or is it just some sort of game played about some obscure "gotcha" which can be raised for anything?

When some federal judge protects brother/sister incest, get back to me.