Weekend

I will take the next few days off from blogging unless something special arises.

SCOTUS Term Ends

Update: Surprisingly,  the stay was lifted on Friday and same sex marriages (including of the lead plaintiffs) started, though an emergency request was later made to Justice Kennedy to stop them.  [Rejected.] Justice Alito also held that the Indian adoption case should go into effect next week.

A few more words about the same sex marriage cases. I again do not find criticism to Kennedy's majority opinion too convincing, especially the idea that it is so very hard to determine what it says. As to the novelty of same sex marriage, there are preludes, and same sex couples lived as married couples already in this nation clearly at least for decades. State sanctioning these unions would be the cherry on the existing pie. And, yes, it is a lot clearer now than in 1996 that it is unconstitutional though DOMA would be problematic even if a state could criminalize sodomy. If it does not, why shouldn't the federal government recognize the marriage?

The division in the two cases regarding standing is also not as confusing as one thinks, since really only three justices split (Breyer and Kagan plus Thomas), Alito particularly for standing in both. It is sort of surprising to me given the orals that Kennedy and Sotomayor wanted to take Prop 8.  But, there are reasons, including pragmatic (and B/K are the ones who joined the Medicaid portion of Sebelius, after all) for the split. Thomas' federalism views particularly would appreciate Kennedy's dissent.  Again, I think the Dellinger approach reasonable, if problematic. 

Moving on, the USSC did a few things today of some note. It granted a couple cases and sent a notable abortion law back to the state court to clarify the reach of state law as to two drugs used for abortions. There were a few opinions regarding various orders, including Justice Thomas wishing to take a case to re-examine an old case that held a federal law can be applied to "deny military personnel the ability to recover for injuries."  Right at the top ... hey, it's Wendy Davis!  A ruling from Texas (which she argued was now moot) was sent back per Shelby. Note the current Twitter hero (among other things!) enabled to block a supermajority in Texas pursuant to a lawsuit under VRA that tossed out a redistricting plan that would have made her winning the seat that much harder. 

As discussed here, today's orders also avoided further involvement in the SSM debate, including rejecting other DOMA rulings (not just sending them back, which leaves some lack of clarity as to scrutiny and federalism questions). A same sex benefits win in Nevada also was rejected, so the breadth of state requirements in this area is still developing.  This is as expected -- the law takes time to develop and the road here involves multiple questions, not just the final question of SSM. As it should be.

And, thus the term ends, though not to worry -- there might be emergency actions and at least three summer order lists. 

Same Sex Marriage Rulings (and Extortion)

Two women then resident in New York were married in a lawful ceremony in Ontario, Canada, in 2007. Edith Windsor and Thea Spyer returned to their home in New York City. When Spyer died in 2009, she left her entire estate to Windsor. Windsor sought to claim the estate tax exemption for surviving spouses. She was barred from doing so, however, by a federal law, the Defense of Marriage Act, which excludes a same-sex partner from the definition of “spouse” as that term is used in federal statutes.

The USSC term is not quite over -- there remains some orders. Today had three opinions. The penultimate one was a unanimous ruling (6-3 on reasoning; Scalia for majority, Alito with Kennedy and Sotomayor concurring) rejecting an application of a federal extortion statute. Very exciting to about three people.

First came DOMA -- 5-4 on equal protection grounds with a dash of federalism by Kennedy ("the gay justice") with three dissents that both rejected jurisdiction and supported the law on its merits. Last came Prop 8, struck down on lack of standing with the interesting (if explainable*) dissent allotment of Kennedy (author), Thomas, Alito and Sotomayor. The result if not the vote count was hinted by CJ Roberts' dissent that suggested they disposed of Prop 8. The dissent being upset the majority even ruled upon DOMA is a bit surprising and a tad hypocritical, especially the day after Shelby. 

Scalia being upset at such an "assertion of judicial supremacy" is almost comical.  Alito has a more limited take on that subject, but dissents alone there; Thomas joined Alito's merits discussion, though my reference below as to him stands. Alito notably (alone among the dissenters) would have granted standing, though had a more limited view of things. When the President refuses to defend a federal legislation (even where, like here, the legislation is still enforced), Congress has standing (even one branch) to do so.  I find this a bit curious (part of the whole?) and the majority opinion did not find it necessary to decide the matter.  T

Some have noted the "dog's breakfast" shall we say nature of Kennedy's opinion. Well, we should be used it by now. I think the overall nature of the opinion is fairly clear though if one looks closely, some confusion might arise, especially if you are not sympathetic about his approach. The opinion basically honors state discretion over marriage though noting obviously the federal government does have the power to regulate in the field. Perhaps for that reason, it does not rest on federalism, but equal protection. The jurisdiction discussion, both overall and prudentially, also was sound. A request for benefits was denied and whatever the Administration's sympathies, it wasn't being granted. It basically adds, just don't' make a habit of this sort of thing.  

Still, various points of the opinion has that caliber -- it is particularly notable that DOMA in an unusual way (sort of the Sebelius/Shelby principle again) restrains states in an area they traditionally (yes, tradition was ironically cited in this context) have mostly free reign. This is a sort of red flag along with evidence of a bare desire to harm ala Romer/Moreno etc. No intermediate scrutiny for sexual orientation generally per the request of the Obama Administration. The expected "rational basis plus" language with a new "unusual" wrinkle. Still, when explaining how the federal government is hindering states, it uses language that logically can be applied against other states too:

DOMA undermines both the public and private significance of state sanctioned same-sex marriages; for it tells those couples, and all the world, that their otherwise valid marriages are unworthy of federal recognition. This places same-sex couples in an unstable position of being in a second-tier marriage. The differentiation demeans the couple, whose moral and sexual choices the Constitution protects, and whose relationship the State has sought to dignify. And it humiliates tens of thousands of children now being raised by same-sex couples. The law in question makes it even more difficult for the children to understand the integrity and closeness of their own family and its concord with other families in their community and in their daily lives. Under DOMA, same-sex married couples have their lives burdened, by reason of government decree, in visible and public ways. By its great reach, DOMA touches many aspects of married and family life, from the mundane to the profound. It prevents same-sex married couples from obtaining government healthcare benefits they would otherwise receive.

The opinion says this in the context of states that chose to sanction same sex marriage. The ability of states and the people therein to do this was noted. It is a strand of the opinion. See also, Jonathan Rauch's Gay Marriage, which fully supports the legitimacy and morality of SSM, while pushing for a state by state recognition approach. But, as with Lawrence v. Texas not addressing marriage specifically, even more so, drawing the line there will not be possible at some point.

A likely next step, especially as we run out of states that can pass SSM by simple legislation, are attacks on state DOMAs using such language. Are they not too on some level "unusual" burdens per usual state practices in respect to marriage? Andrew Koppelman, e.g., in his book noted that even interracial marriages in the Jim Crow South were not as broadly blocked from recognition as at least some state DOMAs require at least if applied literally. And, do they not violate the 14A for the reasons cited? The national DOMA, however, is particularly problematic, and it is a principled and sound argument to focus on it specifically.

One curious thing here is marriages in D.C., which has same sex marriage. The ruling struck down Sec. 3 of DOMA (Sec. 2 allows non-recognition and is largely redundant though has a few troubling applications and is bad symbolically**) without any indication that D.C. marriages or marriage recognition by the military etc. would be treated differently. It was not an "as applied" matter, even though the logic of the focus on the states would seem to make it such. This is a problematic aspect of the ruling just as ignoring the dissent below in Heller, the dissent that noted D.C. is different for 2A purposes because it is not a "state." Federal regulation of D.C. firearm regulations are different in various respects as national laws affecting the states. Same here though it still would be a problem for equal protection reasons. Would a DOMA federal law only applied to D.C. or the military be treated differently by the USSC?

One more thing. Justice Thomas silently went along with the dissents in each case. He concurred separately in the Indian Adoption case to note that constitutional doubt as to state control over domestic relations required the specific interpretation of a statute with various possible meanings. Federalism was raised as a reason for some otherwise sympathetic with his overall jurisprudence. This is where the rubber meets the road. He remained silent. To be fair, cf. Gonzales v. Raich.

I provided a few thoughts on the Prop 8 case in the footnotes. Gov. Brown set things moving to issue marriage licenses to same sex couples once the injunction in place was lifted. Will there be any more complications in that department?!  For instance, will an appropriate party arise that will challenge a same sex marriage at some point?  Notable there that Prop 8 has limited legal effect given protection of domestic partnerships, but perhaps one can be found.  The ultimate end of this story, especially given the drawn out twists and turns that have occurred already, is a clear reversal of Prop 8 by the people of the state.

And, how will the DOMA ruling influence same sex partner benefits in the immigration arena?  To be continued all around.

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* Let me say that I'm sympathetic to the dissent, especially in light of the possible negative results of the majority opinion overall. Honesty dictates that prudence as to the merits is a factor here (likely a motivation for at least some of the justices in the majority, even if they disagreed on the merits), though sure sure, we are supposed to be concerned with legal principles. Still, the development of the law, including on same sex marriage, is a factor here, prudence a legal principle as much as any other. Also, Walter Dellinger's brief explaining why standing should be denied was to me honestly quite convincing. The majority very well might not be on the same ground as his reasoning in all particulars, but really, I did find it convincing. I have a liberal view of standing and jurisdiction overall. The majority does reflect current more conservative rules all the same.

The breakdown of the dissent -- one more time for Scalia/Thomas to break apart -- can be explained in various ways, along with the overall idea that they disagreed with the majority on the merits of the standing question. The dissent does not address the merits of the constitutionality of Prop 8. The four justices probably don't agree on them. The dissent honors state discretion in ways Thomas would find appealing, he also more open to "judicial activism" generally than Scalia. Alito's dissent in DOMA showed no love for the district ruling, so even without going into the merits, he might have be loathe to in effect allow it to be the final word on the question.  Also, he actually supported jurisdiction in DOMA.

** For instance, if non-recognition is allowed even for judgments, it could lead to various complications. Also, there is a minority viewpoint that even though Congress has the power to determine the "effects" under the FFCC, they must do so in a "general" way that could be violated here. The reasoning might be somewhat along the lines of the majority opinion.

CJ Roberts in his dissenting opinion by the way suggested the title of the legislation was not really worth of note as if the "defense of marriage" act that singles out certain types of marriages to the detriment of same sex couples is a trivial thing. Alito's strong dissent underlines that you can't have it both ways here -- an important thing was done here from the title on down. And, that is why for me the whole did is unconstitutional, it is as a whole a violation of equal protection and the right to marry.

Knew There Was Reason I Liked The Mets ...

Bravo to the demise of #DOMA and to @WendyDavisTexas.  I'm inspired today for the system working like it should.

[Twitter: KBurkhardtSNY]

He is the Mets field reporter on SNY and great he supports same sex marriage [more later] and abortion rights. Not totally gung ho about a filibuster even for a good thing, but kudos.

Any Day Now (Spoiler)

This film was a long time coming, based on a story in development for years, involving (in some fashion; a bit of searching didn't find the "true facts") real events in some fashion of a same sex couple (drag queen/lawyer) taking care of a Down Syndrome child while his mother was in prison.  This being the 1970s, they run into roadblocks. It is somewhat contrived, but the talent and humanity overall does win out. Things don't all work out. Update: Some notable "I know him/her" cameos, including the interviewer from social services.

Decision Day 2: Voting, Indian Children and Property

Rick Hasen of Election Blog (who is looking a bit wrong on the IRS "scandal" as more details come out) warned Congress that current doctrine would make the equation used to apply the preclearance provision to certain areas but not others suspect. 

[ETA: As I heard suggested by one commentator, a thoughtful approach would leave open an equitable solution that struck down the provision but left the old rule in place for a limited time so that a solution can be found.  I think this is an equitable power the Court has ala "all deliberate speed" in the school segregation cases. This seems fairer.]

For partially political reasons, the map in question was not brought up to date. On some level, this is troubling, but this does not mean the 5-4 ruling striking it down was the right move. Congress has the power and responsibility by "appropriate legislation" to enforce the 14A and 15A. The word "appropriate" has some limits, but what they are are hazy, and it really should be seen as overall a basic political question. At least, a co-equal branch should not be struck down 5-4, even without the supermajority that was behind this law. Political concerns, the problems with starting from scratch as compared to working off what you have and the legitimacy of continuing to work with the areas with past problems all counsel against that.  [See, e.g., here.]

The ideology of the opinion's author was well known, though his "facts" at time might be off. This open one up to cynicism, but it's expected -- new nominees change things and Ginsburg (who again provides a good dissent to Roberts' majority opinion on a major piece of congressional legislation*) et. al. had a past too. Anyway, Chris Hayes (Twitter) et. al. already have been saying that it is unlikely that this Congress will agree on a new up to date map, particularly since instead of sticking with what they had, it could such and such a representative admitting in 2013 that his or her area warrants extra attention because of discriminatory behavior. Who wants that? We shall see what happens.

For me, an ideal world would involve an up to date map. But, we don't live there. We live in realistic world. In fact, even if this was a few years ago, this decision might not been as problematic. It is harder to imagine this passing though who is to know that even then what would happen if new coverage areas would have to be worked out. The best of all worlds would be to cover the whole country. The 15A didn't and doesn't just cover the South. The North had discriminatory laws and still have some practices with discriminatory effects. If an id law will be a problem, it might be a problem in Indiana as much as South Carolina. Section 2 is still there, so suits can be done after the fact.

As noted in a footnote, the ruling "immobilized" a major part of the Voting Rights Act. But, the VRA is not dead. As AG Holder noted today:

Finally, we need to be clear about what happened today.  Part of the Voting Rights Act, but not all of it, was struck down.  The  constitutionally protected voting rights of all Americans remain fully intact.  And the right to vote, free from discrimination based on race or language, requires our vigilant protection.  We know from many decades of long, hard struggle that the best way to defend a right is to go out and exercise it.  So no one should conclude that today’s unfortunate decision has rendered her or his voting rights invalid, or has made attempting to cast a ballot on Election Day futile.

There were other rulings. Scalia split from Thomas (who did another one man originalist lesson) in an Indian Adoption case, Scalia dissenting (main dissent Sotomayor; Scalia disagreed with a small point, while adding a comment on parental rights) while Breyer concurred to split the liberal bloc again. Alito again had two opinions -- this one along with an important Takings ruling that was something of a surprise 5-4 loss for the government. Kagan had it out again with Alito;** well, actually, she agrees with the majority on a key point.  The property owner in effect has nine justices on his side at least in part, but wins 5-4 at the end of the day. That's probably notable, especially if you know more about this area of law than I. The potential for local land use to be affected seems serious. Still, especially with Kagan in part focusing on facts, how much is unclear.

[Update: The property case has raised various "federalism" responses.  Perhaps, land policy is not quite the same thing as race or religion or crime control in some fashion?  Different views there, clearly. More on the adoption case, including a reference to the fraction Native American that sometimes popped up.  Tribal membership is not merely some fraction of blood.  Also, I would add that F16 of the dissent also brought to mind something I did -- what about the Treaty Clause?  Thomas' separate opinions are sort of comparable to William Douglas: interesting in a fashion, especially if you take them with a grain of salt.]

There is one more case few care about and the marriage cases. They are in effect the season finale and it rubs me kind of the wrong way that the Supreme Court is doing things that in effect make them the finale. Scalia et. al. are annoyed that some single out certain things or stereotype, not looking at the big picture.  But, they are putting a lot of emphasis on two cases that underlines that some things are more important than others. In a big way. Now, this is certainly true on some level. The VRA case or the PPACA cases or these are rather important. And, the time it takes to write, plus them being heard fairly late in the term makes the placement here appropriate enough. Just saying.  Let's hope, as has occurred recently, there aren't any cliffhangers.

The grants are a type of "in upcoming episodes" deal.

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* One difficulty with the PPACA ruling was (as Federalist Society hero Judge Sutton noted earlier) the presence of a myriad of appropriate applications of people clearly "active" in commerce, thus a facial attack should have failed. Ginsburg notes here that the specific litigant at least is a somewhat lousy choice given the area's voting rights history.  An early footnote provides but one of many good money quotes: "The Court purports to declare unconstitutional only the coverage formula set out in §4(b). [cite]  But without that formula, §5 is immobilized."

There is a certain breed of judicial activism here, including not accepting Congress' fact-finding and judgment that it was not working from scratch, but from a continuing history and remedial framework, which has to be seen as a whole to fully understand the legitimacy of its approach. Upholding the law would be on that level a fully conservative thing to do.  

** Sotomayor opened her Indian Adoption dissent (also against an Alito majority) this way:

A casual reader of the Court’s opinion could be forgiven for thinking this an easy case, one in which the text of the applicable statute clearly points the way to the only sensible result.

It was a messy case from the sad facts on down. Thomas concurred to note how constitutional avoidance influenced his reading of text that could go either way. Breyer concurred to temper the breadth of his join too. But, guess that is what the USSC is there for.

Supreme Court Watch

The prelude was handing down orders, including a per curiam "bad boy" to the 9th Circuit.  You know, rather normal.  More importantly, they (as most expected) granted the Canning recess appointment case.  Wonder how the situation will be politically by the time it is argued/decided. An abortion protest case was also granted -- devil will likely be in the details.

Onward to the main event. The general sentiment was that conservative justices were going to be writing most of the remaining opinions, Alito deemed likely to be the author of a major employee rights case. So it was.* Per SCOTUSBlog (tweet): "Major 5-4 victories for employers and losses for employees in discrimination rulings today."  Expect to find some cynical blog posts like this one on how business tends to win.  Not always, but more so these days.  Conservatives picked more justices after all.

Breyer did write an opinion, again writing for five (while two concurred) as to the reach of a federal law (this one related to the military) covering sex offenders after they leave prison.  This time, Alito also concurred, but Roberts (not Kennedy) was the second concurrence.  Breyer's last ruling here (U.S. v. Comstock) was seen by some as a broad reading of the Necessary and Proper Clause that might imply a win in the PPACA cases.  Roberts concurred to warn against an reading too much into the opinion no federal police power, no “great substantive and independent power” of that sought enumerated or implied. See also, his opinion in PPACA. Scalia/Thomas dissented, Scalia concurring in part to note Thomas went too far for even him.

SCOTUSBlog also summarizes: "Drug companies prevail in suit over inadequate drug warnings. Claims are preempted by federal law. 5-4."  Usual suspects. The big ticket case decided today is the Fisher affirmative action case.  They punted.  You can tell by the 7-1 vote.  The solo dissent was a brief one by Justice Ginsburg that has some good lines about how race is going to be addressed somehow, so let's not be overly coy about it.  Also, the program is okay, no need to send it back because the lower court allegedly didn't apply strict scrutiny.  If the matter had to be put to a head, her opinion would probably be the right one. 

But, especially since (as Scalia noted in his concurrence; Thomas reached out and said he would overrule) the petitioner didn't ask Grutter to be overruled, this is a way to handle things. Taking this long to say pretty little (some want to read more into it; maybe) is curious, leading to some likelihood that the Court was more divided on the question originally. Kennedy's ruling makes some degree of sense -- the lower court very well might have been too lenient about scrutinizing though doubt it was totally unreasonable to applying Grutter.  But, a dissenter is now the swing vote.

So, the employee cases are losses, but the left yet again (see Arizona voting rights case) got more than one might expect.  We still have VRA, the marriage cases, a tricky Native American adoption case and a Takings case. And, maybe something else of interest, including orders.

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*This essay supports the dissent, but makes a telling point: the majority rejected the stance of the EEOC.  If a matter of policy and reasonably open to dispute, deference should be given to the administrative agency. 

Hansel And Gretel: Witch Hunters

Fairy tales have resulted in some mixed results in recent years (Tangled was pretty good) and this looked promising. And, though it wasn't so great that it held my interest to watch the whole thing, low attention span these days, this version is pretty fun.  It has a sense of humor about itself and the leads ("Gretel" has been good in a few things already) are fun.

Gay Marriage: Why It Is Good for Gays, Good for Straights, and Good for America

[A preview though it is far from a gimme that the same sex marriage rulings will be handed down today.]

Two are better than one,
    because they have a good return for their labor:
 If either of them falls down,
    one can help the other up.
But pity anyone who falls
    and has no one to help them up.
 Also, if two lie down together, they will keep warm.
    But how can one keep warm alone?
Though one may be overpowered,
    two can defend themselves.

-- Ecclesiastes 4:9-12

I read this book (written in 2004, after the Massachusetts Supreme Court ruling, but apparently before it was applied) as a type of preview to the upcoming same sex marriage cases (to me still the most accurate label & William N. Eskridge used it in his 1996 book).  It was well written and covered a lot of familiar ground.  A few times, e.g., it cited a book on marriage by E.J. Graff though she in the end comes off as more activist.  The homosexual author is also a common thread in all three of these books.

The book has two basic notable aspects -- much of its case relies on marriage being a good thing and explaining how same sex marriage will if anything strengthen the institution.  For instance, if you don't have same sex marriage, cohabitation and various "marriage lite" official alternatives will be used, in part because society is growing in its acceptance of gays and lesbians, and supports some rights.  But, this watered down marriage is not the same thing and will seem attractive to many different sex couples, if anything, probably more number-wise in the long run.  Likewise, marriage will bring positives to same sex relationships, though the discussion here is mainly regarding gay men.  Overall, the argument is an equal protection one (though marriage is also seen as a basic liberty of freedom), not an open-ended argument for sexual liberty.  Marriage is explained to be a social institution -- society expects something from the couple as much as vice versa. -- particularly as a matter of caring for each other.  See, e.g., the vows, which don't focus on sex.

The second notable thing comes in the final chapter (before a type of postscript) -- somewhat suddenly, federalism is promoted.  Marriage equality is argued to be basic fairness and good policy, but this is not a constitutional argument as such -- he says at one point that he is not making a constitutional claim for the right to gay marriage.  This is a bit curious in that equal protection is a constitutional principle, one he notes goes back to the Declaration of Independence.  Rauch, however, is from the "Roe v. Wade was a tragedy" school and has Burkean leanings.  Especially in 2004, it was a bit soon to rest on constitutional grounds here.

Anyway, we are left with news that it might take decades for same sex marriage to pass nation-wide.  Really now.  Loving v. Virginia is barely mentioned.  Why is equality a national demand in one place but not the other?  The problem with a couple being married in one state but not recognized as such in another is barely covered -- this is a basic part of one's life.  You cannot turn it on and off.  The glaring bit, given the upcoming ruling, is Section Three of DOMA is not even mentioned.  It has to be.  It inhibits state discretion by not being evenhanded as to federal benefits.  The take it slow approach is reasonable, I even suggested usage of civil unions in MA back in 2003 (sorry Jonathan), but he doesn't do enough heavy lifting.

Putting aside a somewhat weak final chapter, the book as a whole is very good, a sort of warning to conservatives.  His take on the Prop 8 orals can be found here.

Summer Is Here

Not a big fan personally. Like more temperate weather or even cold. Summer is for kids or those who like the beach or something. Sweat is overrated. Anyway, enjoy the first day, and I'm taking the weekend off here unless something compelling arises.

Red, White, and Muslim: My Story of Belief

And Also:  I read this book along with The Riddle of the Labyrinth, a linguistic mystery (one of the leading players was herself a fan of detective novels) about the meaning of Linear B.  That is, an ancient script used in Crete and elsewhere over three thousand years ago.  Did not quite catch all of the linguistic niceties, but it is geared to the general reader and focuses on three personalities while providing enough specifics to explain things. Brisk enjoyable read, helped by a large font! 

For Hasan, being a Muslim is not merely a matter of birth, but it is a matter of choice. In seven chapters, she presents seven reasons why she is committed to Islam and why it is a viable spiritual option for anyone. 1. Because I was born Muslim. 2. Because Islam gives me a direct relationship with God. 3. Because Islam has a rich mystical tradition in Sufism. 4. Because Islam allows and expects me to make mistakes. 5. Because Islam is ethnically diverse. 6. Because Islam is a woman's religion. 7. Because being Muslim makes me a better American (and being American makes me a better Muslim).

This is how Amazon describes her first book on "Why I Am A Muslim: An American Odyssey," and this volume is apparently a type of reworking of the same basic material. It is a very positive, upbeat volume that is appropriate for the general reader but would likely appeal to teenagers as well.  The author is well educated and is a lawyer, but is not particularly an expert in the field.  The book was vetted though and writers in the field like Reza Aslan (his book on Islam is on my list) provide praise. 

The teenager bit is probably a mild dig -- it is a bit too gung ho, a bit too positive, a bit too lacking in nuance. Truly good things are imperfect.  Islam here seems to be promoted as perfect if carried out by the imperfect. The author promotes a liberal brand of Islam, one where the individual chooses his or her way, but this is helped by that fact that apparently all is hunky-dory -- Allah provided for all here and even if something looks a bit off (some rules of women), it isn't really if we look more closely. Also, as noted earlier, things like what the Koran said are taken a bit too much at face value. Like the Bible and other religious works, you have to take it with a grain of salt.  It is after all the product of man, 7th Century at that.

Still, as an apologia (using the term in its traditional sense), it works fairly well.  It sets forth her personal beliefs and love for the religion in down to earth style and helps explain how we should not have a stereotypical view of what a typical Muslim believes or what the religion stands for.  It also is a strong brief for a liberal interpretation, there perhaps helped by her acceptance of the Koran and basic Muslim doctrine on face value.  On that level, it was a good read.  Still, would not have minded a bit more salt.

The author was born in the U.S., but her parents are from South Asia, Pakistan, her sister also a naturalized citizen.  She blogged the 2008 election; apparently, Obama was reading.  You can read her take on Sufism here to get a taste of that chapter of the book. Overall, again, would recommend the book, even if it seemed a tad Pollyanna to me.  Wonder if there are a collection of books like this -- liberal friendly accounts of religious belief. 

SCOTUS Drags Things Out Some More

This is a bit silly. Only three rulings today: an arbitration case (see Kagan's "in a nutshell" dissent), a criminal/statutory matter (8-1, Kagan wrote the majority) and a 6-2 (Roberts majority, nice Barnette reference, Scalia/Thomas dissent) that is a 1A win regarding limits on aid funding. Not to diminish their importance, but why such back-ending?

Stephen Colbert Eulogizes His Mother (Very Touching)

Not noted: His mom went to the March on Washington while pregnant with him.

Promised Land

This movie received a positive review from my local paper when it first came out and hoped it would provide an interesting view of a salesman of sorts who had a change of heart on fracking. Turned out to be heavy-handed with the idea of an environmentalist craftily coming in to muckrake apparently downright shocking to someone previously portrayed as blithely realizing the right price to pay off local pols. Apparently got worse, but shut it off.

Valerie Plame On NSA Scandal

Mike Sacks (previous known for his law student birds eye view of SCOTUS) had an interesting conversation with her for Huffington Post. She provides a careful middle of the road sort of view and her concern for giving so much authority/money to contractors (raised by Hal Sparks on Stephanie Miller's show too) was important.  Spy book due this Fall.

Juneteenth

Today we celebrate #Juneteenth, commemorating the end of slavery & fulfilling the promise of freedom & liberty for all. - Sen. Gillibrand (tweet).

Collin McHugh also tweeted that the Rockies traded for him as a birthday present. McHugh sounds like a good guy but didn't do well in the majors. Let's see if Young is an upgrade from Cowgill (DFA). Decent sign the Mets can get something for their cast-offs.

Future Preview

Two young pitchers -- Matt Harvey and Zack Wheeler -- started and helped the Mets sweep (though it was nail-biting late again, though only for a short time in the nightcap) the doubleheader today. Nice bounce-back; long 24 hours during which three games were played.

"House GOP Passes Abortion Ban In Deeply Symbolic Move"

The House passed the post-twenty week ban bill basically by party lines.  Curious [see here] about those six Republicans; at least four of the Dems seem to be from conservative areas. To add to my earlier post, even the rape/incest exception eventually added is too weak. BTW, even if the pain issue is open, requiring anesthesia would be a more appropriate rule.

"Joan Parker, 80; philanthropist was muse to late husband"

Two years earlier, Mrs. Parker told the Globe that Silverman could be improved: “I’ve actually grown to like her. But she still ain’t bitchy enough.”

I watched the show and liked for a time the Spenser mystery novels. Sounds like a great lady.

[sigh]

The Mets have five games in four days and six rainouts so far so they were going to play the game even with a three hour rain delay. The game sped along, the Mets pitcher getting the sole RBI in the 7th, Gee throwing under 90 pitches thru eight. Lost it in the 9th, 2-1, failing to get thru the guy who got three of the five Braves hits. Sigh.

"How many houseflies would it take to lift me?"

Supreme Court Watch: Not Quite Yet

The end of the term is approaching, so the big ticket cases (affirmative action, Voting Rights Act, same sex marriage) will be decided soon. Today was something of a preview with cases the general public might not care about though they are not totally without interest.  Five cases that are helpfully summarized here, and of course, you can check SCOTUSBlog.

As noted at the link, some interesting splits -- Scalia/Thomas split three times though not quite glaringly. The notable (for sentencing fans) constitutional ruling is probably Alleyne, a ruling that cleaned up an exception to a rule first placed about a decade ago, Breyer joining on mostly for doctrinal neatness. Scalia usually went along, but split with Thomas in this specific instance, which might be of some importance to that area of law, but honestly, probably isn't that important day to day even for criminal defendants. At least, such is my uninformed view.

The other criminal case split 5-4 on predictable lines, though the majority split conservative/more conservative, with Scalia/Thomas in the latter camp. Contra here, "Shorter reasonable, moderate, thinking person’s conservative Sam Alito: “The Fifth Amendment does not entail a right to remain silent" is a bit too blithe.  The ruling involved the state being able to negatively reference silence during a certain type of interrogation.  The dissent looks to be right on a practical level, but it also seems to be a narrow ruling.  He could have remained silent.  Even the dissent doesn't say silence in all cases will save you from negative comment.

A forgotten case that looks a bit notable allows the feds to move along on a case against brand name drug companies that try to keep cheaper versions off the market.  One of the interesting match-ups is also one of the longer opinions of the term (the Court favors short opinions of late). It looks to me to be a fairly narrow split on the proper reach of a law protecting the privacy of records as applied to litigation.  Principles of privacy and discretion to obtain information in civil litigation to protect the public arise here and both sides have positive values to raise.

The last case involves an Arizona voting id law that the majority (by Scalia) decided 7-2 (Thomas/Alito dissenting) wrongly overrode a federal provision, particularly because the Election Clause gives the feds discretion (Kennedy concurred to note he would not focus on that) to override state law (by design).  At first, reading Scalia wrote the opinion seemed a red flag, but it turned out to be an avoidance sort of ruling. Limited one -- the opinion noted that Arizona did have a constitutional power to set voter qualifications as well as to insure that voters met them.*  [Election Blog provides more dynamics here.]


But, Arizona had a way to raise a claim that the feds here was not appropriately allowing them to do this.  Thus, the voters might lose in the end, if the additional requirement (or something like it) was shown to be necessary and not otherwise a violation of the federal constitution. So, ball in the state's court to press the issue and see how the courts decide. Me personally, I think the law likely to be constitutionally problematic and/or not necessary to defend state voter qualifications, the federal rule of taking an oath satisfactory and additional requirements leading to denial of voting rights with racial and class discrimination implications.

 Not apparently big on the grant scene either. To be cont.

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* Justice Thomas' dissent did what "isn't done" -- he directly (not just to an article with the name in the title) cited Bush v. Gore.

Born to Scandal

A Regency romance that kept my interest the whole way, seemingly each character has some connection to a possible scandalous love affair. The younger widower with two children in need of a governess who has her own story made a pleasant little group, each of their dramas making for enjoyable reading with just enough bite to be somewhat nutritious too.

Rev. Joe: Reading

I have yet to read the Koran, but reading Red, White, and Muslim: My Story of Belief to get a sense of the liberal believer. Yes, a believer, who believes in stuff someone else would deem silly, but it works for them. There are lines not to cross, but respect such people, and find it tiresome (and crude) when some disparage them. The liberal version does help. There are cites to the "official line" that do make me pause, especially when a bit of nuance can help.

Happy Father's Day

Why Do Cats Knead

Okay. Still a bit creepy.

Flag Day

Thanks to all who truly honor it.

"GOP Congressman Fundraising After Rape Comment"

Update: See also, "Fetal Anomalies, Undue Burdens, and 20-week Abortion Bans" by Lisa M. Corrigan, Ph.D for further discussion as well as her previous article on fetal pain. 

“Pregnancies from rape that result in abortion after the beginning of the sixth month are very rare,” Franks said in a statement sent to TPM. “This bill does not address unborn children in earlier gestations. Indeed, the bill does nothing to restrict abortions performed before the beginning of the 6th month.”

The title of this blog post comes from the one excerpted above. Emily Bazelon had a blog post entitled "The Myth That Rape Rarely Causes Pregnancy Comes From Nazi Experiments." She went from the above statement (connected to a proposal to pass a national ban on abortions after twenty weeks) to the "legitimate rape" comments of Todd Akins.  They are not the same thing though both violate the "rape is a four letter word" rule Republican politicians are warned about by concerned party onlookers. So, it seemed a bit off to me on some level.

Chris Hayes recently tweeted a segment he did on his show generally pissed off at such to him legislative trolling, including comments that victims of rape should not be told to further the wrong by aborting the child.  The congressman is pro-life and his wider message does sound like he -- if given his druthers -- would generally not provide a rape exception for abortion, even if here it is true he is specifically concerned about something where rape is likely to be an issue.  Hayes was upset about ideological efforts like this with no chance of passage, but that is a common path for modern day Republicans. Legislators, especially in the House, push certain things sometimes.  Republicans take it up a notch.

Yes, given all the pregnancies and abortions out there, rape is rarely involved.  But, one number cited was that rape leads to tens of thousands of pregnancies in this country, so in raw numbers, rape is not that rare. Then, there is this specific provision. Violating Casey based on unsubstantial fetal pain claims, putting aside the problem with making it a national law (what? under the Commerce Clause? really?)  is generally a bad idea.  Still, if you are for it, why not include a rape exception, since you know, is is so "very rare," and is therefore allegedly basically symbolic.  The argument probably would be that women would just lie.

When we are dealing with abortions after twenty weeks, there is no mundane cases. The likely cases involve fetal abnormalities or threats to the health of the woman.  A few cases might involve delayed abortions based on youth, poverty or other reasons, worsened by sectarian anti-abortion laws that do not evenhandedly apply health regulations.  This overall subset again might involve victims of sex crimes.  Not having an exception overall is upsetting since it reflects a failure to respect the girls and women involved as compared to a one note focus on "life."

[Update: The bill was revised to include a rape and incest exemption when it was reported to the authorities before the abortion took place]

So, the critics that connect Franks to Akins have a point, and besides, a politician lives and dies by the trope -- nuance is a good value, but it is not something you really can rely on, especially when even on close examination, your stance is problematic at the end of the day anyhow.

Unpopular Privacy

This book is discussed here and see here for a nicely comprehensive answer to a comment by me spelling out different aspects of privacy. The book was fairly interesting though I expected a bit more "unpopular" privacy restrictions as compared to talk about proper rules on modesty or teen data use. The basic idea that privacy is an important value even if one doesn't like it seemed at times to be not fully addressed. On the whole, worthwhile read.

In the Land of Blood and Honey

Angelina Jolie's (shades of Ashley Judd) world-wide humanitarian work suggests the moral weight and experience needed to attack such subject matter for your directorial debut. It has received many accolades including from those directly involved in the conflict. Some mixed reviews, some were turned off.   Overall, it is an impressive effort, underlining that along with the beauty, she is very talented and a serious artist. 

I admit to finding the captive sister lead a bit too passive and turning it off half-way.  A hour or so of the film gave you the idea of the situation, which perhaps suggests a flaw or my short attention span.  But, it is well acted, shows the horror of war and an impressive debut. As some of the reviews note, the complexities of the story and relationship has various connotations, but again Ajla's passive character (which has plot implications, but still didn't like it dramatically) bothered me. Her sister, who had her own horrors to face, was a more engaging character.  As to the captor, who falls in love and (selectively) protects her, the film bravely perhaps makes him a more active character, that is, he is often the focus of the plot. This humanization of evil, so to speak, is a valuable technique.*

I saw the English version (the only one available on the DVD), but (adding to the skill) a native language version was also filmed. There is a "making of" feature but the Q&A is only available with on the Blu-Ray disc, which I do not have. For some reason, it took awhile for my library to receive the film, so I was constantly checking to see if it was there yet. Glad to finally receive it, even if not totally satisfied.  One more thing: it has potential to be shown to high school students.

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* The film has multiple "gotcha" moments. A few cases involve innocents being killed (one foreshadowed almost cruelly) are particularly notable,. There are also non-lethal (except in the soul destroying fashion) to underline the horrors of the conflict. One early on involves a solider at a concentration camp asking an incoming group of women if anyone good cook -- not a "crap" cook, mind you.  This led to a few trying to show they were useful, including one saying she could sew.

To put her in her place, the guard grabbed her, asked her if she could "fuck," and raped her in front of the rest.  Rape a particularly well used tool of war, including the "benefit" of impregnating the women, something particularly notable in an ethnically divided conflict. This suggests perhaps the value of the passiveness of the Muslim captive, even if dramatically it did not keep my interest, which is not the most important thing on some level, but it is to the degree this is still a film. 

The means used by our "hero" to protect someone was to tell others he "owned" her, a degrading matter that upset at least one reviewer (when there is signs of her falling in love), but note they were together before she was captured and as another review (both linked above) noted, the complexity of the situation is apparent.  Such is skill of the film.

"Lawsuit Aims to Strip ‘Happy Birthday to You’ of Its Copyright"

One of the most stupid applications of long-held copyrights, parodied even on A.N.T. Farm, where they go out of the way not to sing it for copyright reasons (a joke for the adults).

Supremes: Nothing Much Yet

True that with Kagan writing even mundane cases might be notable and there's this in an otherwise unanimous (and notable with real life consequences for women, it likely to significantly cut costs of cancer screening) DNA patent case, but still, along with a water dispute, not exactly what everyone is waiting for. Expect conservative authors.

Army Wives

Managed to lose track and not realize the show has been back for awhile. Turns out CJ (who was mostly MIA last season) died of a heart attack. We were led to believe there was some crash, but the call Michael got turned out to be this. Oh well. Thought the show jumped the shark, so not too upset that I missed it. One more trauma for the Holdens.

Plan B For Minors Fight Not Quite Over

Oh well. Reporting at RH Reality Check suggested everything wasn't hunky-dory though noted it "would be difficult to exaggerate the importance of this new development in a decade-long case of scientific and public health malfeasance." Yet another long never-ending battle.

"Chad Johnson gets 30-days in county jail for lawyer butt patt"

As I mentioned there, this revocation of a plea deal because a guy patted his lawyer's butt while the judge was handing it out in a domestic violence matter brought mixed emotions. The brief "I agree" from former prosecutor Bill Otis, given his usual, is notable for regulars. It is a fairly serious thread in a blog that annoyingly often is surprisingly kneejerk.

"A Conservative Case for Prison Reform"

The ultimate arbitrary application of marijuana laws disrespects the law in a way conservatives who might morally agree with the prohibition find troubling. This (along with Mr. Levine's comment) makes a broader case against our current criminal policy.

Oh. It's a Rutabaga! Now, what is this?

Not a cook. So, the little things impress. For instance, those soup vegetable combos at the fruit store. They are enough for a few dinners' worth of vegetables. Or, bargain bins. Picked up like three tomatoes and four mini-potatoes for .99. The tomatoes were good on bagels. Liking garlic powder a lot too. And, fresh vegetables I don't quite know the name of. These Japanese cocktail nuts. And, certain types of pierogies, cooked non-cook microwave style.

Torcaso v. Watkins

The arguments (see transcript) is an occasion of an extended defense of a broad view of "religion" and "religious freedom," including for non-theists (see also, FN11) and even atheists. Also, see here for a reminder that privacy is also a Catholic (religious) value.

"U.S. Drops Bid to Limit Sales of Morning- After Pill"

The Obama administration has decided to stop trying to block over-the-counter availability of the most popular morning-after contraceptive pill for all women and girls, a move fraught with political repercussions for President Obama.

Finally! Meanwhile, after Charli Carpenter left, LGM was all boy (and repeatedly tiresome). They finally have a woman blogger, but she favors commentary like this. Blah.

Even SCOTUSBlog ...

had a net "yawn" from today's rulings. Still, for Ex Post Facto fans who eat raisins ...

"Mott Green, a Free-Spirited Chocolatier, Dies at 47"

emerged from a hermitlike existence in a bamboo hut in the jungle of Grenada to produce a coveted Caribbean delicacy — rich, dark chocolate bars that he exported around the world with the help of sailboats, bicycles and solar-powered refrigeration — died on June 1 in Grenada. He was 47.

Sounds like a real character, including one who helped make the world a bit better.

Painful

The Mets after a sweep of Yankee B team. Maybe a month or so late, sent Ike Davis down today. Expected mediocrity this season. Getting dross. SSDY is getting old.

Rev. Joe: True Equality in Chaplain Corps? (Nah)

“Humanism fills the same role for atheists that Christianity does for Christians and Judaism does for Jews,” Mr. Torpy said in an interview. “It answers questions of ultimate concern; it directs our values.”

Saw an interesting tidbit in my local paper about a failed amendment "that would allow humanists or members of ethical culture groups to join the chaplain corps." Numbers-wise, this is a significant group, more than Jews or Muslims, e.g. But, respect for religious beliefs continues to be a bit selective, so it failed. Like gays, still have the "down lo" chaplains.

Imagine Me & You

As I said the first time, this movie has some soul, if a few (especially a bit near the end) annoying bits. That blog entry might continue to have some bite too. Anyway, some DVD extras, and the American lead does a nice English accent. The good guy husband is a major plus. Overall, with the cute, some serious adult fare there. Word of the day: Ladette.

Chinese Whiskers

This is a charming and insightful fable of two Chinese cats (one with middle class origins, one a "dustbin cat") who have various adventures that reflects the author's own experience as an expat journalist (with two cats) and various aspects of present day China.

Rev. Joe: Religious Liberty Beyond Conservative Bishops Edition

I have gotten into some disputes with this person and the tone there suggests why. The fact is they DON'T want to "play by the rules," and it is not "aggressive" to require them to do so, including regarding contraceptives in ways that repeatedly involve "the state" trying to compromise. See also, my comments here and here (those darn "progressives"). Calling contraceptives, which the Church blithely lets their flock use, "evil" is hard to take seriously.

Rain, rain ...

go away, so the Mets can play. ANOTHER rainout! [on second thought ...]

A bit more ...

"bound by oaths of office to hold their tongues"

This has annoyed me for years ... these "oaths" seem to override the Speech and Debate Clause -- "for any speech or debate in either House, they shall not be questioned in any other place." Never quite got that. Talking out on the floor against executive overreaching seems to uphold oaths, even if the clause literally leaves open legislative penalties.

And Also: Civil Liberty Protections Involving "Private" Action

The "order" here suggests even if you accept Smith v. Maryland (I don't), it is not really a "voluntary" matter. Still, this shows the overall importance of positive law/practice to protect privacy, like it is necessary to truly not "deny" 14A protections. Lacking such "affirmative action" might not be court secured, but constitutional rights go beyond that.

"Revealed: NSA Collecting Phone Records Of Millions Of Americans Daily" [Aka 4A Is Dead]

See here and here, e.g., for details/reactions. Not "horrified" or anything, but at some point, you start to worry about such mega-data dumps, especially when the company can't even talk about it. Note it was tied to the law, so no "new boss the same as old" and not actual conversations. Safeguards and oversight important here. So, good to be informed.

Happy Medium Bleg

Various people noted the tone of Scalia's dissent in Maryland v. King while a few noted Kennedy did his usual ignoring the dissent routine. Scalia isn't alone, but is a pro at the heavy-handed dissent. U.S. court opinions repeatedly are pretty personal, which is also unfortunate. He does take the time to respond, however imperfectly.

Inhuman Resources

This was a pretty good late night find that hooked you early on and kept you with some nice twists, humor and some talent. A somewhat unhinged manager type kidnaps six people to prove he was wrongly convicted as a serial killer. We aren't talking Shakespeare here, but skip over some genre silliness, good little thriller. Lead actress also has some spunk.

Another Off-Schedule 2013 Election

A 89 year old guy in bad health has died, but it's a bit complicated given he was the senator from New Jersey. Reprise of my support of tying short term appointments here to party somehow. He had various possible options, so Christie (R-sometimes not vomit inducing) went with short term appointment, special extra election. Is he gaming things a bit? I guess.

"Conservative Reps Say God Told Them To Spare Boehner From Coup"

This led to some to ridicule people thinking God "says" things and my comment that the President on down do this in some fashion. Not everyone. But, enough to be annoying. Focus on the merits. "Religion" itself is not the enemy. Statement probably isn't too important anyhow. Strategy as much as some voice of God probably influenced things.

Loving The Bad Man

Coffee Shop God is an example of a victim forgiving a violent criminal, so that part of this rape victim having the baby film didn't throw me. And, choice includes choosing that. Though that is a hard way of following "Love Thy Enemy." It's that the film is just not very good (did like the lead). Turned it off. Lesson: message movies are still movies. There still are minimal standards. I note this because the subject matter -- including redemption even after horrible crimes -- is worth thinking about.

Maryland v. King (or Scalia/Thomas Split Again)

Scalia/Breyer switched places to uphold a limited (for now at least) usage of DNA testing after arraignment (is waiting to then constitutionally necessary?) of one crime to investigate (or is it help "identify" the true nature of the person?) others. I agree with the dissent, but the potential here might be worse than the actual opinion.

In Search of Cleo: How I Found My Pussy and Lost My Mind

The book is not dirty, however. Just a funny one about how, years ago, Gershon lost her cat, Cleo, after the end of an eight-year relationship and became obsessed with finding him.

Years ago indeed -- the friend's death that "just" happened occurred in 2002. Nothing profound, but amusing and the money is going to charity. Though I got it out of the library.

The Sessions

Overall, I enjoyed this film about Mark O'Brien (iron lung) deciding to go to a sex surrogate (Helen Hunt nudity alert), particularly because our sex laden culture too often does not actually seriously examine the complexity of the subject.  The DVD has a few background interviews, including from the leads, director/producer, supporting characters and the actual sex surrogate portrayed.  No commentary.  Interesting cameo: Rhea Perlman as the "Mikvah Lady" -- reminds me of another movie where we see the freeing nature of women baths in some Middle Eastern country. 

Some reviews thought it covered the subject matter too simplistically, including his Catholicism, but it is after all a movie. I probably would give it three plus stars out of four, the material not that deep, but overall smoothly done with points for novelty.  The usual plus of good support cast helps.  Didn't quite like how the sex surrogate got so emotionally attached -- she is a sex surrogate; why was this case special?  A quick look at the article the movie was based on and her own book (see link for resources) doesn't seem to suggest it happened quite like that. However, the film seems overall fairly faithful to real life, including certain small touches like the elevator scene.

O'Brien is portrayed as someone with guilty feelings about sex, in part a reflection from his brand of Catholicism, though he has a sense of humor and a complexity of thought that makes the character and man interesting (and subject to an earlier documentary). The priest he seeks counseling from is shown in a sympathetic light (how could he not given William H. Macy portrays him!) as a laid back sort of guy.  I take that -- as seen by his first reaction ("you mean fornication?") the Church would oppose this sort of thing. (O'Brien did later fall in love and have a more typical relationship with a woman though I take from the stuff I read that it was not quite like portrayed in the film.)   But, many would be like the priest.

The Church would not have lasted two thousand years, if the flock was as doctrinaire about things as the rules required. Sex for the Church is a limited thing -- in the area of marriage and even there without artificial contraception. Likewise, inability to have vaginal intercourse means you are not able to even get married.  So, if he was totally paralyzed and loved a woman, too bad for him?  It is not quite that the Church (though some early writers surely didn't think much of it) does not "like" sex as the sex surrogate suggests. They do have a narrow view of it.  Sad really.

As noted, the saving grace is that many (including some like the priest portrayed here) do not have such a limited view of things.  If one wishes to accept the New Testament (a sort of Judeo-Christian term in that only some would see it that way) as gospel, there is only so much wiggle room.* There is play in the joints. As noted in The Notorious Elizabeth Tuttle, many Puritans somewhat against type had some liberal (for the time) views about sex and marriage. The gospels were interpreted to allow divorce for abandonment and part of this would be abandoning certain responsibilities of a spouse, including those of a sexual nature.

And, this was not only taken in a sexist fashion.  The good of both was involved.  This follows the true spirit of the Catholic principle that sex is an important "unitive" aspect of marriage though why only a certain form of it would be possible here is something some of us find curious.  Some concern for the spirit over the letter and understanding that even holy text was written by human beings (even I reckon the Koran in its original Arabic) / fallible, can do a lot more to fit equality into religious doctrine.

For making us think through such issues, root for the characters and Helen Hunt's fairly consistent Boston accent, the film is worthwhile.

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* See, e.g., here, where the text provides certain roles to husbands and to wives, even if there is no need to apply it in as sexist of a matter as is opposed in that discussion. The same is true with the few references to same sex behavior.  At some point, it can not be totally explained away. But, trying to justify every single verse, especially read in a vacuum, is a fool's errand.  When Paul (or "Paul") says things which make women ministers apparently a problem, this is pretty clear.  Selective reading helps -- recall something about splinters vs. planks ...

Vamps

The director of Clueless had some good work in the '80s and '90s, but seems to then had a dry spell.  This film about two BFFs who are vampires from the director to various members of the cast reminds one of better days. It's still a bit cute and has a few interesting touches.