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This blog is the work of an educated civilian, not of an expert in the fields discussed.

Tuesday, December 31, 2013

Pen Registers ... 24/7 Monitoring

More fundamentally, it may be necessary to reconsider the premise that an individual has no reasonable expectation of privacy in information voluntarily disclosed to third parties. E.g., Smith, 442 U. S., at 742; United States v. Miller, 425 U. S. 435, 443 (1976) . This approach is ill suited to the digital age, in which people reveal a great deal of information about themselves to third parties in the course of carrying out mundane tasks. People disclose the phone numbers that they dial or text to their cellular providers; the URLs that they visit and the e-mail addresses with which they correspond to their Internet service providers; and the books, groceries, and medications they purchase to online retailers.
Justice Sotomayor in last year's U.S. v. Jones (GPS) ruling concurred separately to in effect agree with both halves of the justices' split, joining the majority while supporting the overall principle of the concurrence (Alito + the other liberals).  She also questioned the so-called "third party" doctrine, noting the breadth of personal information that can be collected, including of a "familial, political, professional, religious, and sexual" nature. Such concerns were raised by various dissenting justices in the original cases.  They continue to have force.

Jones involved placing a GPS device on a car, which was seen as a clear violation of the Fourth Amendment because it impinges on a property interest. See also, Florida v. Jardines, where dogs right outside one's home (the "curtilage" serving as a sort of "penumbras, formed by emanations" of the "houses" here) was also deemed an easy case. Three justices there noted a general concern for privacy also was implicated. This was the Alito approach earlier, though he was among the dissenters in Jardines, suggesting possible splits. Nonetheless, there are five votes there for a general privacy concern for long term monitoring of society.

The issue is now front and center with NSA tracking of what is called "metadata," which can tell a lot about someone, especially in the aggregate. This is seen in advertising -- a bunch of "cookies" regarding the websites you went to alone is pretty telling. If such data includes the headers of emails, it can be particularly informative. In the 1970s, pen registers, which provide numbers of whom you called was a concern to many people. After all, Smith v. Maryland was a 6-3 ruling (Stewart, Brennan and Marshall dissenting).  An interesting discussion with a link to one involving a telling footnote can be found here (more here).

Alito's concurrence in Jones had a "I know it when I see it" test of sorts on how much monitoring is too much and was supportive of congressional regulation as a major means of dealing with the matter. It quotes Prof. Kerr, who has blogged about such issues at Volokh Conspiracy and wrote a lot about them as well. Kerr is very wary about Alito's approach as a judicial matter, critically speaking of a "mosaic theory" that in effect determines the government's surveillance as a whole is unreasonable.  Seems too inexact to him, apparently.  His overall 4A views are complex though.

At some point, I think such a theory makes sense as a Fourth Amendment matter, and the separate opinions in Jones suggest why as does. And, the theory was left open by past cases. As the majority in Jones noted,
reserved the question whether “different constitutional principles may be applicable” to “dragnet-type law enforcement practices[.]”
The GPS tracked public movements of the car, but the breadth of the movements is on some level a difference in kind from merely having a police officer follow the car around. Four justices would apparently merely rely on that fact that the device invaded the "effect" -- the property interest a person has in the car.  Unsure if Roberts and Kennedy, at least, would be that formalistic if pressed.  Anyway, five justices didn't merely (Sotomayor) rely (Alito + three) on that.  The monitoring infringes on the privacy of the user of the vehicle and the Fourth Amendment (and other possible amendments, especially the First, if we take Sotomayor's counsel) instructs that at some point this is "unreasonable" ... at least without a warrant.  Two judges recently split on applying this to the NSA policy.

[ETA: Note that this is not just a matter of "Smith no longer being good law," which a lower court judge cannot say unless the USSC clearly so held -- the "clearly" has less force in certain cases if it turns out the USSC supports what the judges do.  It is also that whatever the legitimacy of certain limited usage of "third party" material, a "dragnet-type" approach was not decided by past cases. One judge noted various possible differences -- distinguishing v. overruling is something of an art anyway.]

I would withhold my opinion on the specific proper route here, including if the NSA policy is unconstitutional. One thing that I'm sure about though is that it is appreciated that FINALLY it might be the case that there is clear standing to at least allow the federal courts (outside of FISA perhaps) to at least decide the question. I think the Obama Administration at times have gotten a bad rap as to the breadth of their wrongness on national security issues, but its refusal to allow various things even to be decided has rightly been deemed dead wrong. I understand the CYA behavior, so am not "shocked' about it all, but still find it dead wrong.

Also, the privacy concerns are appropriate -- the devil is in the details of how to handle them.  There are various legislative safeguards here, even the rubber stamp nature of the FISA Court has been shown to be a bit exaggerated. There can be more.  The particulars also matter a lot -- the NSA running computer programs 24/7 is "dragnet-type" but not very individualized. Specific attempts to use similar tactics to target specific people, such as in a specific drug or financial investigation can be a different case.  What is clear is that merely because somehow we give the data to third parties (often only because of the necessities of life, like phone numbers, and with the belief it will be held privately by the company and not shared with others) shouldn't be enough to remove privacy concerns when the government without our permission monitors it and pressures communication companies to help them. That is a bit absurd and at best should be cabined.

Also, the level of data is way more than a few telephone numbers. Note that footnote discussed in the link above. Justice Stevens wanted to deal with reliance on expectation of privacy when some crazy totalitarian scenario becomes the expectation -- where we are "conditioned" to accept something out of 1984 or Fahrenheit 451 (the movie had wall video that directly talked to occupants) of "continuously monitoring" of everyone. Usage of a case where specific phones are monitored for numbers called or specific bank records are subpoenaed to justify this doesn't do it.

Monday, December 30, 2013


After an amusing and inventive Mickey Mouse short, we had this enjoyable holiday fare that happily is not as dark as the original sounds. I enjoyed Rapunzel and a voice actress sounds similar (no, it's not Mandy Moore) and some of the animation looks somewhat similar too. The film's moral is a bit too obvious, but overall, I enjoyed the experience.

Sunday, December 29, 2013

Kyle Orton & Dallas Defense Make It A Game

... but after failing a two point conversion for the tie and holding the Eagles, Kyle Orton threw a pick on the first play of the final drive. Eagles in.

Week 17: Part 2 (Got to DOUBLE CHECK if the ball is live)

KC played back-ups but still almost allowed the 8-8 (once 2-6) Steelers in but missed a 42 yd field goal at the end of regulation. It took nearly 12 minutes, but the now 8-8 Chargers' field goal in OT held up. The other late games are not that notable except for the 8-7-1 Packers winning their division via a strange "yeah it's a live ball" TD and late TD. Welcome back, Rodgers from your time off doing commercials. Bring on Kyle Orton!

ETA: Local radio guy noted Chargers got help from blown calls.

Week 17: Part 1 (NYG Win in Sludge)

Rex Ryan did keep his job, rightly so since with a flawed team and rookie QB, 8-8 (here helping eliminate the Dolphins) is pretty darn good. NYG ended 7-3, but still couldn't manage to beat a good team (Eagles not good at the time). Ravens eliminated, Panthers got the #2. Houston clinched #1 pick. Yeah, Detroit lost again. Steelers still alive.

System Works Dept.

I had my fare wrongly deducted twice instead of obtaining a free transfer recently, submitted a claim online and just received my $5 refund card. Had a problem with a machine once and similarly got a refund. System does often work. OTOH, unlike shown on an episode of Rules of Engagement, am not aware of bike racks on the front of NYC buses.

Rev. Joe: No Footnotes?

And Also: I have a good amount of stuff still to read, and have read some about it, but '14 might be a time to look into Eastern faiths. Some accounts, including Pagels, suggest gnostic beliefs were influenced by them -- e.g., the dualistic nature of reality, good/evil etc.  Also, interesting article on Obama's faith and practices in today's NYT

To be clear, the proper title of the volume referenced a few times is A New New Testament: A Bible for the 21st Century Combining Traditional and Newly Discovered Text, not as I wrote at least once "The" New New Testament --it is clearly noted that they wish not to assume to provide "the" authoritative volume here. A collection of religious scholars worked with various Christian writings up to the latest date of the orthodox New Testament material (175, which sounds rather late ... I thought II Peter etc. was thought to be written by 135 or so) to form a new volume. But, unlike the originals, they are more open about it not being the final one. So, look for one 4000 CE or so. 

I looked at the volume and one thing that stands out is that the font and blocking is quite readable.  Often, the text in bibles are small, though by now there are so many versions, you can find ones with all sorts of fonts, including different colors to highlight Jesus' sayings or whatever. One thing I did notice is that the volume does not really have any footnotes. Your standard Bible provides various notes on the translation (an imperfect science) or references to other texts that cover similar ground. Some, including a Catholic Bible I have, provide commentary on the text with their own personal touch. One put out by a conservative publishing company really laid that thick.*

This version only really has introductory summaries of each book with it seems a few random notes. One note reminds us that the well liked "those who sinned throw the first stone" account usually put in John (though some early copies had it in Luke)  appears to be a late edition. The story, shall we say, was so popular though, it was inserted into the text. This backstory is interesting as is various possible meanings of the text -- I enjoyed in the past reading commentaries that provided multiple volumes of analysis of biblical books.  There is value too in doing this oneself, the "original understanding" not binding on us.

The non-commentary notes do help here too as would references to names and other things that the modern day reader might not understand.  So, notes do help.  I did not read all the introductory material, so don't know if the editors explained why they chose not to include notes here. For instance, when reading gnostic texts, notes can be particularly helpful. OTOH, even academics don't understand all those opaque documents.


* The conservative volume was almost amusing in how far it went in a fundamentalist type direction -- e.g., Genesis? Written by Moses ... somewhere in the desert.  Of course, II Peter was written by Peter, and each Pauline epistle (with estimated dates included) was written by Paul!  The notes also have lots of "information" like Luke being said to have interviewed Mary (hey, it need not be when the book was written -- she would be quite old -- could have stopped by some other time) Source? Well, no, there isn't a list of notes to all of this commentary.  It is not even necessary -- she easily could have told someone else what happened.  Then, again, some take their commentary seriously.

Saturday, December 28, 2013

Substantial Burden or lack thereof

One problem with the Volokh Conspiracy (useful) extended discussion of the contraceptive mandate claims was that its "substantial" burden test was so weak. Marty Lederman has a more nuanced and realistic approach. The Sunday closing bit is telling.

Friday, December 27, 2013

SSM & The Fosters

Same-sex marriage is banned by constitutional amendment or state law in: Alabama, Alaska, Arizona, Arkansas, Colorado, Florida, Georgia, Idaho, Indiana, Kansas, Kentucky, Louisiana, Michigan, Mississippi, Missouri, Montana, Nebraska, Nevada, North Carolina, North Dakota, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, South Dakota, Tennessee, Texas, Virginia, West Virginia, Wisconsin and Wyoming.
Add Utah to this list since it is in flux and will go the the USSC (if only for a "short stay" -- I see what you did there). Ohio's law, according to a footnote to a more limited ruling (involving recognition) is at risk. A few other states are explicitly in the courts now.  Nevada's law blocking certain benefits to same sex couples was struck down in federal court.  Virginia's law will go to trial mid-2014. The NYT had an article about battles in Indiana.  Will there be or when will there be a case that upholds a ban?

Meanwhile, in the world of fiction, The Fosters will return mid-January.  The network provided a nice three DVD set of the first ten episodes for free on Facebook. Since I watched the episodes more than once (re-watched a few in the last week), sold my two copies (Ebay is bollocks these days for selling books & stuff, except for some new things), but at least one of them was given as gifts -- sort of pay it forward, right?  There are so many shows out there and I seem to watch less than when I mainly had only free channels to watch, but this to me is one of the best.

 The linked episode, e.g., has multiple subplots, providing chances for various characters to shine. The writing, production values and acting all is first rate. Watching episodes of Rules of Engagement against on syndication (mainly on WGN at the end of the day) shows that was a pretty darn good show.  The same applies here with special attention best made to faces. These are very expressive people -- they could probably have done well in that silent movie that Callie had to watch for art class! A close look will often add to the experience -- see, e.g., how Stef reacts as she is chasing a perp with her partner, making sure to get a full lay of the land. Characters repeatedly do this, even minor ones.

The series cliffhung (my word!) on Callie leaving after a forbidden kiss at a same sex marriage (Rev. Camden -- well just the actor from that Seventh Heaven show, here an Internet minister -- did the honors*) with Lexi's undocumented status still up in the air. What new subplots will arise? Will Jesus' (Hispanic pronunciation) ADHD be addressed again (after it was mostly forgotten)? Will Callie and Jude's real dad pop up? Will Brandon say after being challenged for messing up that it was "my time" given everyone except saintly Jude (Callie's little brother, who did have an angry moment with her & look where it got him!) screwed up royally somehow long before now. What further implications will arise from the shooting?**

Time will tell. Hope it retains this level of quality. Maia Mitchell, who plays Callie (with an American accent & quite well), tweeted, e.g., that five episodes forthcoming involved some stuff that really hit her hard.


* The show has various "I know that person!" moments, beyond more than one of the leads, including Stef Foster, who just to cite one thing played the ultimate First Lady at the end of West Wing. Her ex was pointed out to be the guy pal of the doomed lead in Titanic. And, hey, Brandon's piano teacher is the son from that '80s show Crazy Like A Fox.

** The show's handling of the morning after pill impressed me, but so did its involvement of Stef Foster's (who is a police officer) gun. At a dinner with her partner's ex, it came out that Lena really doesn't like guns. Also, that off hours, Stef has a gun safe. Which is shown later. This is something many people have, few of them police officers. But, even on those shows, a little touch like a gun safe (or how they carefully store a gun) is not likely to be shown. 

Thursday, December 26, 2013

Congress passes military sexual assault reforms

Reading various accounts, there might be reasonable grounds to oppose Sen. Gililbrand's desired legislation to change handling sexual assaults in the military. I'm somewhat agnostic though kinda think it would work. What did pass is notable and she at the very least helped push the line left-ward. Kudos to my senator.

Various Thoughts

A few thoughts I will combine in one post.

First, happy Boxing Day. A reminder that Downton Abbey's new season will come to the states soon.

Second, Prof. Tribe has a bit of a mea culpa as to Sonia Sotomayor, whose third party doctrine concurrence is but one thing getting some attention. I am continuously annoyed when people criticize Obama as some loser -- be upset at various things he did, which is normal practice (St. Ron, e.g., sinned ... at least while alive) -- and ignoring various singifcant good things he did. One is the choice of two fine justices to the Supreme Court.

Justice Sotomayor is the justice assigned to the 10th Cir. (Ginsburg, appointed at 60 btw, is assigned the 2nd) , which just refused a stay for the same sex marriage case.  Prof. Dorf thinks that is on some level both the moral and legal thing to do, but still problematic. As noted in a comment left there and earlier here, I am conflicted as to that.  It might be somewhat moot -- given the breadth of the ruling (the 9th Cir. stayed the Prop 8 ruling and there domestic partnerships already enjoyed most legal benefits of marriage) , it seems likely to me (who's to know though -- the 10th ruling surprised me some) that the USSC will grant a stay.

Next, among my presents were two books [I put aside one I bought for myself and a couple obtained free from the library] that touch upon issues addressed on this blog. One by Prof. Colb concerns questions asked to vegans (I'm a vegetarian -- not pure enough for the bunch at Dorf on Law, who rejected my defense of Temple Grandin, who works to ease the harm to animals in slaughterhouses and the like*). For instance, it has a chapter on "what about plants." The other is A New New Testament, which provides an up to date translation of the books, adds some more among the various writings not inserted in the original and provides some further explanatory materials. Looks interesting.

Among the books added is the Gospel of Mary, which  is often labeled a gnostic work (though the people behind this book question using that label given the range of material involved and debate over definitions).  One thing that interests me, and I think Pagels/Ehrman and perhaps others don't say enough about this in certain books and accounts, is the overall environment that led people to find gnostic beliefs convincing.

This is often discussed in Christian context as if gnosticism is merely Christian. It's not -- Christianity was influenced by others, which is pretty clear given the importance of Jewish thought!  I have noted my interest as well in the Qu'ran, which has various influences as well (like Star Trek, the great thinkers and stories referenced are both familiar and unfamiliar). Christianity, including its gnostic aspects, followed the trend. For instance, Ehrman in Lost Christianities and an entry to the Oxford Companion to the Bible (guess in the last decade or so, additional scholarship might warrant an update, but this volume has been a very helpful reference guide for me) suggests the Jewish thinker Philo of Alexandra (d. c. 50)  has gnostic implications. With the possible exception of Thomas, gnostic gospels were written later than the originals, but the thought was in the air earlier.  Certain NT epistles' concerns reflect this.

In Elaine Pagels book Beyond Belief (subtitle respects the Gospel of Thomas, but the book itself is only partially about that) talks a bit about Didache or Teaching of the Apostles, a guide to Christian practice that might have been composed some time in the last first century.  It is a brief and interesting read and there was a strong push to include it in the new volume. But, oh no, there is an abolition to "abortion" and that was the deal breaker.  Sacred Choices by Daniel C. Maguire, among a discussion of beliefs of various religions, suggests early Christian thought here was mixed.  Just what was "abortion"?  Did it include early use of potions that worked before some believed ensoulment occurred?  Unclear.  There was a mixed set of beliefs here and even Didache (as Pagels notes)  at one point (as compared to similar more absolute commands in the orthodox gospels) puts forth an ideal and adds (in effect)"or do the best you can."

A recent comment online argued that allowing same sex marriage was "just as" arbitrary, merely social choice, as a range of other things such as incestual or underage marriage. Such lack of nuance is basically an immature approach.  Noting that somewhat hazy lines are drawn leads to pure statements like there being no real lines, just social judgments that are pretty arbitrary (some are sure to say they are okay with it but when you put same sex marriage on the level of brother/sister marriages, so sorry, your bona fides are questionable).

The prohibition of "abortion" along with other things should not be treated with such immaturity. Early Christian thought clearly in part was a reaction to certain Roman social practices, including infanticide. Likewise, early Islamic thought included some strong rejection of certain bad treatment of women, which might seem a bit ironic to some people now. The prohibition of "abortion" is of the character along with New Testament comments about sexual immorality, which were generally a result of concerns about temple prostitution and practices involving use of young boys and the like for sex.  It is a bit hard to stretch this, though some try, to mean that the material is totally benign. We are talking about early centuries here, not current gender relations.

Still, putting aside that ideals are not the same as what should be the law of the state (see, e.g., divorce rules) or what non-saints will do in their actual lives, I don't think a reference to an abortion ban should really have led not to include this book. Again, it should get more attention, in part as an expression of early Christian practice. It has some liberal implications, which was why it appealed to people like Elaine Pagels. Finally, the one word opposition should be put in a proper context. As Sacred Choices noted, an influential early Christian theologian spoke of the necessary evil of certain late term abortions that were necessary for health.  One way to look at that is that even late term abortions were seen as acceptable in certain cases.  If so a ban on abortions without context is incomplete.

Anyway, I have some reading to do.


* Prof. Dorf and as I recall his wife (who wrote the book) both thought that she merely enabled wrongdoing, while I think change occurs over time, so we should support those things that cushion the blow. The logic behind her actions is that we have an obligation to take into consideration the animals' interests, which Grandin has said so herself. We have not taken the logical next step, but this is not a reason to do what we can.

Tuesday, December 24, 2013

'Twas the Night Before Christmas

Twas the night before Christmas, when all through the apartment
Not a creature was stirring, so out I went.
The stockings were hung by the window with care,
In hopes that they would soon be dry ... they were my best pair.

The cats were nestled all snug in their spots,
While visions of Fancy Feast danced in their heads ... lots.
And I in my 'kerchief (really my cap),
Had soon had just settled my brain for a short winter's nap.

When out on the fire escape there arose such a clatter,
Yogee* sprang from his bed to see what was the matter.
Away to the window he flew like a flash,
And pushed open the blinds (sorry, no sash!).

The moon on the breast of the new-fallen snow
Was quite a sight, even with the mundane urban view below.
When, what to his wondering eyes should appear,
But a miniature sleigh, and eight tiny reindeer.

With a little old driver, so lively and quick,
He knew in a moment it must be good old Nick.
To feed him ... it was about time he came!
But, instead he whistled, shouted ... it was so lame!

"Now Dasher! now, Dancer! now, Prancer and Vixen!
On, Comet! On, Cupid! on, on Donner and Blitzen!
To the top of the roof! To the top of the wall!
Now dash away! Dash away! Dash away all!"

As dry leaves that before the wild hurricane fly,
[That's a weird simile, I cannot lie.]
So up to the building the coursers they flew,
With the sleigh full of Stuff, and St Nicholas too.

And then, in a twinkling, Yogee heard on the roof,
The prancing and pawing of each little hoof.
As Michelle Judy rose from her slumber,
Down he came ... that St. Nick is a bit of a bumbler.

He was dressed all in fur, from his head to his foot,
And his clothes were all tarnished with dust and soot.
A bundle of Stuff he had flung on his back,
And he looked like a peddler, just opening his pack.

His eyes ... oh to be truthful, the cats cared not very!
Only one thing likely to make them merry!
Not his droll little mouth drawn up like a bow,
And the beard of his chin as white as snow.

They wanted some Fancy Feast,
chicken, beef, seafood, anything to satisfy the little beast.
When would he come in to fill their little belly?
They shook and meowed, it was louder than the telly.

Yogee ... chubby and plump, not very jolly was he,
Michelle Judy annoyed, wanting to eat too ... yes, she.
With a wink of his eye and a push of the door,
Soon St. Nick gave them to know they need not wait any more.

He spoke not a word, but went straight to his work,
And filled all their bowls, then turned with a jerk.
And laying his finger aside of his nose,
Giving a nod, cleaned the litter box so it smelled like a rose!

All done, all cleaned up ... he sprang out back to his sleigh,
to his team and gave a whistle ... all was okay.
But, he also texted me a message, 'ere he drove out of sight,
"Happy Christmas to all, and to all a good-night!"


* The two cats here are the ones referenced early that I sometimes check-up on. "Nick" was tossed in for rhyme. It means little -- cats care little for names.  Merry Christmas to all!

Monday, December 23, 2013

Utah SSM Update

A stay immediately, even before the district court has a chance to rule on it, was rejected given the circuit standards were not met. Overall, unlike in NJ were lack of federal benefits after the DOMA ruling made the lower court ruling strongly likely to stick, this is a closer question. I think it might be best to not allow same sex marriages until the appeals are over. Not that strongly upset, mind you, but honestly, probably best policy.

Update: The district judge denied a stay but things are in flux.

Animal Thoughts

Jane Goodall co-authored a book on "ten trusts" to uphold to respect and protect animals.  It might be worthy of a skim, but found it tedious and repetitive reading at book length.

A question though is if the principles set forth (including rejecting use of animals merely for our own interests) would justify use of guide dogs and the like. The book does not oppose companion animals (so the therapy dog seems safe) but what if the animals have to be put to some rigorous training session to serve the interests of others? I think it seems okay on balance -- we are not talking medical experiments [a special case too, though lots of them are of little value or able to be replaced by other methods] or anything here. But, the pure of heart might not. The book, e.g., criticized the use of certain monkeys to help paralyzed people.

Anyway, the article is touching and explains how companion animals can not only provide company but drive you along, which is one reason why they are so useful for the elderly.  One theme of the book is that animals benefit humans in a range of ways. Justice Douglas' infamous "trees should have standing" dissent actually was written for our interests, Douglas speaking about the value of nature in part for psychological health in his writings.  If no person is an island, to paraphrase, harm to animals and nature itself also have effects. We are on some level all connected.  Another article flagged an example:
 “Marine mammals are very good sentinels for ocean and human health, and they really act like the proverbial canaries in a coal mine,” said Dr. Greg Bossart, a veterinary pathologist and senior vice president in charge of animal health at the Georgia Aquarium. “They give us an idea of what’s occurring in the environment.”
 A personal note. I from time to time care for a couple cats.
This is "Yogee."  I really wonder what he is thinking at times, other than "I'm starving, can't I steal Michelle Judy's food."  Seriously, very cute and it's an honor to take care of you. 

A Festivus for the Rest of Us

A legal battle has arose over this as well.

Week 16 (minus MNF)

NY teams this season managed two things pretty well -- beating mediocre teams and kicking.  NYG (eventually) eliminated Detroit, while the NYJ have a shot at eliminating Miami next week after a good game. Bears (badly)/Packers lost; they and Dallas/Eagles have a "win and in" game set up. Chargers/Steelers/Cards (all longshots) stay alive.

MNF: Falcons lost, SF in & Cards have that much a harder road.

Sunday, December 22, 2013

Rev. Joe -- Books (Qu'ran/Breaking Up With God)

In the name of Allah, the Entirely Merciful, the Especially Merciful. [All] praise is [due] to Allah , Lord of the worlds - The Entirely Merciful, the Especially Merciful, Sovereign of the Day of Recompense. It is You we worship and You we ask for help. Guide us to the straight path - The path of those upon whom You have bestowed favor, not of those who have evoked [Your] anger or of those who are astray.
I have for a little while tried to find a good book on what seems to be properly called Qu'ran ("Koran" is a typical spelling), especially after an evangelistic leaning group sent me a free one (to possible converts and unbelievers!). It's a nice small blue one with helpful notes. Now, as various accounts (I have found a few books including by Muslims, none quite doing the full job for me) note, the book can really only be truly known in its original language. Like the logos of the Gospel of John, this "word" of God was also always existing -- it was not merely handed down to Muhammed in the 7th Century. I don't know if "begotten not made" would properly be applied given their doctrine, but there seems to be a parallel here.  Islam clearly was inspired by previous religions.

The Qu'ran: A Short Introduction, which I obtained on the recommendation of a comment left on a blog and being able to obtain a used copy, adds to the imperfect but useful volumes read. It is by a believer but one with a liberal viewpoint (written in 2002, ends with a postscript noting "Taliban" translates as "the searchers," whose biggest wrong is to assume that they actually found the truth -- that is a life time effort). It reads like a fairly approachable assigned reading in an introduction course at college. Usefully, since I found it a bit of a trudge at times, the copy was highlighted with notes. It covered the bases and was interesting reading in various respects. Recommended.
When I was a child, I talked like a child, I thought like a child, I reasoned like a child. When I became a man, I put the ways of childhood behind me. [1 Corinthians]
Chloe Breyer (Justice Breyer's daughter) wrote a good account entitled The Close: A Young Woman's First Year At Seminary. For a more rocky journey, there is Sarah Bernstein's Breaking Up With God.  As that link's discussion suggests, it was an account of something of an abusive relationship that was at least partially a matter of misconceptions. The book was rather heavy going for me in part since it was in large parts a biography of a rather unpleasant life.  A childish view of God that was a mixture of magic and fear, not helped by a mother who unhappy about her life and the religion she agreed to raise her children (she was raised Episcopalian  and saw Catholicism as kind of beneath her). Then, an abusive college relationship before she finally found a more rewarding life (including a liberal church and more adult theological studies).  
While Sentilles agrees that all talk about God is metaphorical, she sticks like glue to the metaphor she nonetheless rejects. "God" remains a personal, beloved Being, just one to which she is no longer committed. However, she and He are still very much attached by the distance she maintains between them. The notions of Mystery and Love don't quite fill the gap. Might she find a better metaphor?
The best part for me of the book was her discussion of her theological education, including her professor Gordon Kaufman's argument that God is on some level by necessity a metaphor, a human creation of something that cannot truly be known. Some students challenged him -- you are saying God does not exist! Not his point -- he did believe in God, but he was expressing the truth of the matter. The same with "religion" -- why do certain experiences seem "religious" to us? It is a matter of how we see and are taught to understand such terms.  Some take this understanding and have deep belief in God all the same. She lost her faith, perhaps because it was never firmly there -- it was based on sand and confusion.

As the review notes, Sentilles has a strong sense of justice and the book ends with efforts to face up with various injustices, including Prop 8 and environmental issues.  Some might not take her path -- there are liberal churches like the Unitarians that seem friendly to her overall views -- but it might be that the well was poisoned early.  She grew up with an image of God and it did not work for her. This is not surprising since it does not seem like a very good one. "God" to me is a metaphor of sorts and though I don't think it works, surely not by the traditional definition as a concrete reality (man in the sky etc.), there are ways to honor it (the idea) including in a religious context. I respect those who do so, especially in a mature way.

Her struggle to find her way did not quite appeal to me as a book, but it is an important story all the same.* 


* Bart Ehrman, who also in effect broke up with God, has a supportive blurb. The review linked and excerpted was written by a friend and former student of Sarah Sentilles. BTW, there is a picture of some woman on the cover next to a suitcase -- doesn't look like the author!

Rev. Joe -- Film (Mixed Blessings)

This is an interesting documentary concerning four interfaith (Jewish/Christian) couples. Each had a different approach, one did not yet find a solution. Two couples stand out -- an older couple who found a comfortable path and the younger couple still deeply divided.


Snowed last weekend.  60s as the new season began this one.

More on Utah

Although the State did not directly present an argument based on religious freedom, the court notes that its decision does not mandate any change for religious institutions, which may continue to express their own moral viewpoints and define their own traditions about marriage. If anything, the recognition of same-sex marriage expands religious freedom because some churches that have congregations in Utah desire to perform same-sex wedding ceremonies but are currently unable to do so.
The district court ruling striking down Utah's an on SSM (note the video of the Salt Lake City DA calmly willing to follow the court) will likely be stayed -- the hearing is on Monday (noted by SCOTUSBlog on Twitter) and the appellate court is likely if necessary.  Looks like some same sex marriages -- Christmas (Festivus?) gift and card alert -- are already occurring.  The private and religious ceremonies will continue.

When these issues with a religious overtone are debated, it somewhat amuses me that I find myself among two often competing groups -- those who don't think much of religion or laws that seem to benefit it over the interests of others and those who find equal rights and such threaten their religion. I find both somewhat misguided -- the law can take into consideration to some degree religious belief and there are religions that respect the socially liberal positions I generally favor.  The beliefs of some minority should not lead us to denounce religion as a whole. And, same sex marriage rights do not disrespect religious belief.  As with abortion, some of these people skip over the true diversity of religious belief.

The opinion as a whole reflects something the Supreme Court first truly flagged in Romer v. Evans, after a dismissive statement in Bowers v. Hardwick -- homosexuals warrant the same basic rights as the rest of society.  Windsor, in a tentative way, held that marriage is included -- at the very least, if the law was blatantly discriminatory, it could not stand. The federalist aspect cushioned the blow, but as the judge here noted “its reasoning is nevertheless highly relevant and is therefore a significant doctrinal development.” The judge took Scalia at his word -- marriage logically follows, even if the ruling itself did not so hold. 

There is some force here, but law is like that -- once the Supreme Court started to incorporate the BOR, the dominoes were mostly likely to fall. But, it took time. Brown to Loving took time. Such is the case here. This is not a trivial matter and it is how the law often develops. Some will sneer or cite slippery slopes, but it took a decade for Lawrence to lead to Windsor. A decade provides some time for things to develop, both law and society. The signs were there in the 1990s.  DOMA was a sort of retrenchment exercise, which as often is the case, was doomed to failure in time.

This ruling follows the logic of Lawrence -- intimate association rights were there applied to same sex couples. Basically, they were not held to be claiming something "new." Ditto here -- "Plaintiffs are seeking is simply the same right that is currently enjoyed by heterosexual individuals: the right to make a public commitment to form an exclusive relationship and create a family with a partner with whom the person shares an intimate and sustaining emotional bond." The New Mexico Supreme Court didn't want to decide if the right to marry entailed marrying members of the same sex. The court here (correctly) held:
The effect of Amendment 3 is therefore that it denies gay and lesbian citizens of Utah the ability to exercise one of their constitutionally protected rights. The State’s prohibition of the Plaintiffs’ right to choose a same-sex marriage partner renders their fundamental right to marry as meaningless as if the State recognized the Plaintiffs’ right to bear arms but not their right to buy bullets.
The usual tropes such as procreation (tell that to my grandmother when she re-married) work even less when a fundamental right is involved. At worse, the precedents show intermediate scrutiny is required, and even there in a case involving child support -- not a total ban on marrying the person you would most likely be inclined to marry.  Since the ruling held that the law did not meet rational basis, that won't work either.

Baker v. Nelson was held to be overwhelmed by later cases, especially Windsor and Perry (during oral argument, Ginsburg almost sneered at the idea it was still good law, and even Scalia didn't really try to contradict her) -- at the very least, it was a substantial federal question and Roberts' dissent that left the matter open was cited partially in support. A constitutional amendment (and its baggage) banning same sex marriage also is not the same type of law in that case. Citing that case any more is a weak avoidance device.

10th Cir. precedent was held to bar applying strict scrutiny to sexual orientation. A sex discrimination argument was recognized as reasonable but not required to be addressed given a lesser ground was deemed enough. The same was noted as to an animus argument -- that the amendment shows animus and thus a type of rational basis with teeth would be warranted.  Windsor's "teeth" test was summarized:
The Court’s emphasis on discriminations of an unusual character suggests that, when presented with an equal protection challenge, courts should first analyze the law’s design, purpose, and effect to determine whether the law is subject to“careful consideration.” If the principal purpose or effect of a law is to impose inequality, a court need not even consider whether the class of citizens that the law effects requires heightened scrutiny or a rational basis approach.  If, on the other hand, the law merely distributes benefits unevenly, then the law is subject to heightened scrutiny only if the disadvantages imposed by that law are borne by a class of people that has a history of oppression and political powerlessness. 
The judge decided not to rely on this to him rather undeveloped approach since the law's purposes are "so attenuated [to its text] as to render the distinction arbitrary or irrational."  As I noted a few years back, "rational basis" should be at least somewhat rational.  These arguments lead to rather weak arguments (here rightly rejected) about how denying same sex couples marriage rights will further more stable families or such. The idea that some mother/father "gold standard" furthers that sort of thing more is dubious. But, even if it is possible, denying SSM is not likely to further it. What? If same sex couples can marry, different sex couples will be less likely to get married and responsibly procreate or something?  And:

If there is any connection between same-sex marriage and responsible procreation, the relationship is likely to be the opposite of what the State suggests. Because Amendment 3 does not currently permit same-sex couples to engage in sexual activity within a marriage, the State reinforces a norm that sexual activity may take place outside the marriage relationship.
As noted, this might work if "tied to laws concerning adoption and surrogacy, not marriage," but same sex couples can adopt and surrogate in Utah.  The opinion notes in this section that the net affect will burden the children in same sex families, including by showing them that the state doesn't think their parents deserving to get married. This is said in passing, but for the honest among us, it shows the point -- "responsible procreation" is not the reason.  Same sex couples are deemed different and deserving of a special barrier. There is animus and "careful consideration" is warranted, especially when a state constitution is selectively amended to target such couples.  But, truth telling excites some people as we saw in the Windsor case and this way provides a somewhat lower temperature.

Meanwhile, a marriage where one of the members changed their sex was upheld by the Indiana Court of Appeals. Time marches on.

Saturday, December 21, 2013


Well, it has begun -- a district court judge struck down an anti-SSM state amendment on federal constitutional grounds. Violates the right to marry (strict scrutiny) and does not rational basis as to EP (Windsor relied on for opening, but its standard is avoided as too new and vague). Pretty good opinion though I would have added some teeth to the RB as a back-up though deeper doubts are hinted at in dicta. Another "Scalia is right" opinion too.

Deputy Assistant Attorney General in charge of the voting-rights section

Congrats Pam Karlan on your new voting rights' job.

Friday, December 20, 2013

Upholding the Rights of Sex Workers

These appeals and the cross-appeal are not about whether prostitution should be legal or not. They are about whether the laws Parliament has enacted on how prostitution may be carried out pass constitutional muster. I conclude that they do not.
“I” being a woman chief justice (Ginsburg is smiling). This is a case where fair form can in practice lead to a general right to something since outlawing it fairly is pretty hard to accomplish. More here.

Thursday, December 19, 2013

New Mexico Supreme Court Rules Same-Sex Marriage Legal

The 17th state has joined the SSM community, relying on equal protection based on sexual orientation using intermediate scrutiny. Its avoidance of a sex discrimination / right to marry argument was a bit weak, but understandable since this is a more limited ruling. Few states left without clear anti-SSM (state) constitutional barriers.


No Thursday night football?  There is football on next Monday (last).  This time of the year, there used to be a Saturday NFL game or something, or one on Christmas eve or day. The Packers and/or the Viks seemed to be common. None this time. Almost seems untraditional!

Intel Collection A Concern But Not Quite Orwellian

President's Review Group Report (which few will read but some are positive about) released proposing reforms in intelligence collection while (shockingly) being overall impressed at how things are going.  Still, reading that NSA opinion, it did seem there are various limits in place.  It's why certain overkill language turns me off. Put the government to the test, but realize it isn't all bad. In fact, work off the limits. Guess both ways have some value. Eh.

Two "why is this so hard" comment debates

I put aside someone telling me he hopes Obama will lock me up to rot in jail because I don't think Lincoln was a "tyrant" for doing what the habeas clause implies he could do.  Well, not quite.  The person there -- who mixes intelligence with troll online -- does a standard thing. Flails about, sneering at me, but doesn't really try to specifically address what I take time to say.  This happens from time to time -- I take the time to make an argument, which might be wrong, but get dismissive replies which simply do not wish to seriously engage me. This annoys and depresses me though I have that "Someone is wrong on the Internet" comic with a little "Not Role Model" personal reminder on my wall. 

One comment was alluded to earlier, part of a thread involving bestiality (the main post's author has a low batting average and the effort -- from votes of comments apparently isn't just a joke -- is par for the course). The nature of the post, which was a jokey bit of confusion, didn't bode well, I admit.  One of my comments noted that I think lack of consent is a factor to justify bestiality bans. A person who generally I respect thought this silly since animals have no "legal consent."

I didn't say they had "legal" consent. I said their inability of consent is one reason we have bestiality bans.  Did add that some animals having some will, some ability to "consent" (which was admitted as a sensible explanation, if tossing in some philosophical verbiage to confuse things)  underlines the point. We respect that Fluffy, e.g., has the power (if not the legal right) to consent to certain things, so are concerned about her possible wishes and desires when determining proper animal welfare laws.  Like a five year old child, animals don't have "legal consent," but lack of consent (and some will that warrants concern) matters.

Why is this difficult?  The same blogger led to another issue, this from one of those commenters that I know does not see things my way in a fashion that I repeatedly think misses the point while finding me just clueless in the process.  So, I had some fair warning, but again, the clueless nature of the comment annoys and saddens me.  The post was one of those Israel ones at Volokh Conspiracy from one of the somewhat kneejerk Israel defenders.  So, I questioned if there was a film there that put the Nativity story in a Palestinian context.

The reply wondered if I wanted one where the couple was expelled for being illegal settlers or something. I thought this sort of missed the point and didn't quite follow the original.  The original had Mary/Joseph flee to Egypt to avoid Herod's son. So, I explained something like that but with new heavies would be a more direct parallel. I also explained (twice, after someone noted "huh" -- red flag emotional aside alert -- it seemed I was trying to promote an anti-Jewish film here)  that the overall story would suggest altering some things given things are different today. For instance, the Jews control Israel.  Jews wouldn't be lowly figures in the same way.  This led the person to wonder if I wanted Mary/Joseph to be serial killers, since they too would be against the PTB.  Seriously?

I get some replies like this online -- are these people even trying to understand what I'm saying?  The person actually said "by my logic" the serial killer duo would make sense.  This reminds me of another comment in another thread that assumed my link to a website explaining the "five non-negotiable" things for some Catholics (spoiler: SSM included) was my argument, perhaps because the link was to "St. Joseph" or something or other.  I have visions of the SNL character saying "never mind."

But, one thing that rarely occurs with many of these people is admitting error. It occurs a few times, to be fair, but repeatedly they lash out quite badly and even when called upon it, they don't admit error. They don't even say "oh, I see what you are trying to say, but I disagree" etc.  At some point, I realize one should not stress out about that. It's just someone online. But, they are not merely that -- they reflect a certain breed of people. Also, it is just rude and not respectful. Also, serious debate requires more than that -- it requires actually listening and trying to seriously engage people, including some with whom you strongly disagree.

I don't always succeed, but my basic philosophy is try to respect the people I argue with, even those who have views that I find wrong or even offensive. Some repeatedly just don't make a serious effort and at some point, it is best to ignore them.  Given my tendencies to want to speak out online, that is not always easy.  It helps when you can delete the comment -- sort of like writing a letter that you don't send.  And, sometimes, I expect more out of the people, who seem to overall to be serious people.

Still, take the person cited at the start. He is clearly very intelligent and has wrote law articles and works as a lawyer. But, for whatever reason, especially on certain subjects (e.g., religion), he -- and the word is not one I like since it tends to be overused -- is something of a troll. He lets his id out and doesn't care to seriously reply to people. Other times he does, so it is not like he cannot. Not quite like a person at a sentencing blog who in real life is a serious lawyer job but spends much of the time ranting.  The Internet encourages this sort of thing -- anonymity and all that though it is also seen by those who go by their real name. A few real tools in the blogosphere. 

It can be so hard for various reasons. Sometimes, people just see things in a different way. It is hard to face such preconceived notions in a comment context -- the people often have limited time anyway, and are not there for long in depth debates anyhow.  Others just seem to have a hard time to even take the time to try to understand your p.o.v. Since this to me is not only helpful but good policy, this depresses me.  But, so be it, I guess.

Wednesday, December 18, 2013

"The Unestablished Constitutionality of the Religious Freedom Restoration Act"

And Also: Had another mini-snowfall.  As is usual, it does not really last. The first one was quickly followed by a night rain storm that washed a lot of the snow away. Still, last weekend's storm was nice -- small enough not to be a pain, big enough to have the snow experience. Waiting on the curb in twenty degree weather while buses pass you in by is always fun, after all. 
The worry for now, with Justice Stevens retired from the Court, is that no current Justice will recognize that RFRA has provided churches, as well as numerous religious organizations and now, possibly, secular for-profit companies “with a legal weapon that no atheist or agnostic can obtain. This governmental preference for religion, as opposed to irreligion, is forbidden by the First Amendment.”
I think that this argument is taken too far.  Take Stevens' own example.  Not true that an atheist or agnostic has lacks a means to use this "legal weapon." The local Ethical Society, e.g., on its website calls itself a "religion" last time I searched and if the agnostic stands in to sue under RFRA to protect their meeting place, s/he might have a good claim.  Torcasco v. Watkins famously has a footnote noting some religions "do not teach what would generally be considered a belief in the existence of God." Provided are two lower court cases where ethical societies obtained privileges as part as an overall benefit to religious groups.

The argument alludes to another that says the contraceptive mandate lawsuit should partially be seen as a threat of establishment of religion, since Hobby Lobby etc. are trying to burden third parties who are not fellow travelers (separate from the ministerial exemption) and obtain a benefit solely on religious grounds. I think the argument has some force. But, strategically or not, it is not as broad as that article desires. Prof. Hamilton, whose writings on the subject are worthwhile up to a point, e.g., opposed Wisconsin v. Yoder (limited exemption to mandatory education laws for teenage Amish students). The ministerial exemption to her is overused too.  At some point, this is baby/bathwater territory.

RFRA very well might be problematic as an overbroad accommodation of religion, the general supporter not saying much of what it is done is obligated by the First Amendment.  If it is used to give Hobby Lobby a win, it to me is being overused.  It makes more sense to tie exemptions to specific laws, especially when dealing with major federal policies like ACA. Some default rule to accommodate makes some degree of sense. "The Civil Rights Act of 1964 prohibits discrimination on the basis of race, color, religion, sex or national origin." This on some level "singles out religious practices, en masse" as compared to other things.

The First Amendment itself "privileges religion over all other expressions of conscience" on some level.  Free exercise of religion is protected, not "conscience" or philosophical thought. Likewise, the state can "establish" various things, including democracy and  the idea of equality of humankind.  It cannot establish "religion."  So, accommodations can up to a point give some special concern to religious beliefs and practices. Furthermore, "religion" can be and is interpreted broadly.  Conscience is respected too in the long run too, one way or another. As it should, as I said repeatedly.  The true test turns out to be one of degree and balance.

So, the part way establishment argument is a better one. And, the idea that atheists and agnostics do not have "religion" is not necessarily true anyhow.  Just go to some local Unitarian-Universalist service.

Tuesday, December 17, 2013

There is no “Employer Mandate”

federal law does not impose a legal duty on large employers to offer their employees access to a health insurance plan
Eugene Volokh provided a series of posts at his blog concerning the legal arguments arising in the contraceptive mandate cases up for Supreme Court review. His libertarian leanings colored his analysis somewhat though the effort as a whole was impressive. Marty Lederman (he praised EV's work, in part noting it was "herculean"), who leans more progressive, provides his own analysis.  The whole thing reminds me of cases where I have so much to say regarding some viewpoint that it's hard to be truly comprehensive.  The verbose nature of the posts underline it.

I find the argument against the mandate in these cases specious on the merits. When some private non-profit refuses to include contraceptives as part of its health insurance plan, I think it mean and stupid -- of all things to deny students from a diverse set of views, e.g., you pick this?  When it is for-profit employers, corporate or no, it is just wrong.  U.S. v. Lee, to me, decides this case. RFRA claim? RFRA is supposed to revert federal policy back to the days of Lee.   It's depressing that this is a real issue.

Lederman reminds us of something that brings me back to how you can attack something multiple ways. In the link provided, he notes that employers don't actually have to provide insurance. The law advances affordable health care in various ways, including giving an incentive to employers to provide insurance benefits. Yes, they are taxed if they don't -- as one court summarized, the law:
leaves large employers with a choice for complying with the law—provide adequate, affordable health coverage to employees or pay a tax.”
As Lederman notes, this does sound familiar. Hobby Lobby and Conestoga Wood want to have their cake and eat it too.   They want to provide insurance of their liking but not pay the tax. Lee nixes that even when a solitary employer wants to do it.  And, the employer there didn't even have a choice -- the Amish employer wanted to provide social insurance to replace Social Security, which like ACA, is a type of federal social welfare program that some people morally or otherwise oppose in part or in whole.  As Stevens noted in his concurrence, realistically, the feds probably would save money in the long run. But, he wasn't given the option. HERE an employer has more choices. Like ACA ironically being opposed even though it is more free market friendly than some liberals might wish, this underlines the shallowness of the claim here.

This issue was flagged by a few comments over at Volokh Conspiracy though Prof. Volokh does not seem to have appropriately covered it (to be fair, he covered a lot).  I myself responded and noted that it only takes us so far. Lederman deals with the basic objections that to me seemed possible -- not including the insurance could put them at a disadvantage and they might morally think it appropriate. He argues that the parties here have the burden to show the former and doesn't really do so -- any "marginal" burden here is not substantial enough. Lederman doubts the second claim was seriously made but I'm not quite as sure there. Still, the same basic things didn't save Lee.  So, the end result is the same.

Lederman frames things in a powerful fashion -- a major talking point is that the government is trying to force the employers to violate their religious beliefs by providing contraceptive coverage. They are not. I don't know really if paying the tax and using other methods to ensure their employers will have insurance (cited by Lederman) actually net is cheaper. At the very least, opponents have more of a burden to show that. And, if paying a tax in lieu of being involved in the program is a problem, why stop here? Medicaid taxes, e.g., can cover abortion (not merely drugs that statistically might have a tiny chance of stopping implantation of fertilized eggs; something is clearly "abortion") in cases of rape. Some people find that sinful. Do they get to not pay if provide insurance that doesn't cover such things?  Go down the line for a range of programs.

This is but a different hook of something that underlines the specious nature of these claims. They have to be selective, singling out certain things (a type of de facto establishment), things that turn out to be tangential burdens at that,* or knock down lots of things. Such was a core point of U.S. v. Lee.  The bogus framing has to be answered.


* A video on abortion rights for prisoners led me to an opinion that underlines the point. The opinion explains how an earlier one held that a state law against "assisting" abortions did not include driving people to a clinic to obtain them. It has to be more direct.

Providing an insurance package with a benefit that might be used in a way you deem immoral is less direct than that. Finally, as to "substantial burden," perhaps the abortion context is useful there as a whole.  Seems a bit less weak than the discussion by Prof. Volokh suggests -- then again, many think "undue" burden is applied too strictly against women.

Supreme Court Declines to Take Up School Bullying Case

The case with a link to the competing lower court opinions is discussed here.

61 Yards

It's unlikely, but do recall seeing an onside kick actually working & being used to win a game. But, a 61 yard field goal? Detroit last night looked to be able to survive a mistake filled game when the Ravens relied on that. The result pleased fans of the Ravens, Bears (first place), Packers ... but not Miami, whose road to the playoffs is now harder. Jets eliminated.

Judge: NSA phone sweep likely invalid

He staid his ruling pending appeal. Prof. Kerr wasn't impressed. Others more so, but also noting the ball is in Congress' court too. Kerr is likely too conservative on the precedent point, but realistic as to a district court judge going so far with it. Still, have to start somewhere and finding a case with standing to sue would help. And, Congress et. al. ...

Monday, December 16, 2013

Sister Wives Win First Round

I discussed the Sister Wives case and what do you know -- they won in district court. One might say "fwiw" given the opinion. But, the win seems earned. OTOH, no, it doesn't make it soooooo hard to understand why bestiality can be outlawed. That thread is depressing down to such things as "you think animals have some ability to consent? you are strange" type comments. Somehow, "don't force him/her" to me can apply to pets. They have some will.


He's best known for Lawrence of Arabia, but I think my favorite Peter O'Toole film might be Lion in the Winter. He did slum a lot too. As to Joan Fontaine, I might have seen her some in The Women and one or two other things. Just reserved Rebecca in her honor.

Sunday, December 15, 2013

Week 15 (Two Games Left)

Another interesting day of upsets. Not in NY -- Giants were kinda in it for a bit, Jets to the 4th when a blocked punt killed them. Falcons eked out a win vs. Redskins' (who went for the win) back-up. Viking whipped Eagles but Packers did so against Dallas when it counted. Saints lost to an inferior team again. And, Pats FINALLY couldn't claw back. Miami alive.

Rev. Joe: Once-a-Day Country Faith Devotional

Obtain various free things and this was one of the better ones -- it's a collection of favorite Bible quotes from various country music stars with the Gospel of Mark tossed in. Its glossy finish makes it like a coffee table book, but it is smaller in size than those usually are. It would make a nice extra or little Christmas present for those who like this sort of thing.

We're the Millers

Enjoyed this movie -- it was overall a serviceable comedy that was put together well as a whole and had a few cute (so to speak) ideas like the fake "mom" (Jennifer Aniston as a stripper -- one of her better comic roles) and "daughter" teaching the "son" how to kiss.

Thursday, December 12, 2013

Self-Inflicted Wound Day

13th anniversary!

Kansas v. Cheever

Erik M was an interesting commentary here.

Christmas: A Candid History

Aisha Harris' message to Kelly: "Santa isn't real."
Wonder how Aisha would respond to Virginia. Seriously, the title book might be of use.

"How Congress Works"

And Also:  The Mets going out and signing Colon for two years (after their first real acquisition of an OF) is a promising sign of being serious though given his age, I'm a bit wary.
What is relevant here is that the ACA is a very badly drafted statute. And it’s badly drafted for a simple reason that turns out to be important to understanding how the pending litigation should be resolved: Because Senator Ted Kennedy died in the middle of the legislative process and was replaced by Republican Scott Brown, the statute never went through the usual legislative process, including the usual legislative clean-up process.
I don't know how much -- vis-a-vis others -- the statute was "very badly drafted," but then don't find this useful discussion a "quick" post either.  The discussion covers something that Prof. Adler over at Volokh Conspiracy finds much less "incredibly weak" on the merits, which is nto suprisignly given his different leanings. To summarize:
The case is incredibly important—if the challengers win, consumers on more than half of the Obamacare health insurance exchanges will receive no tax subsidies to help cover the cost of insurance, an outcome that will devastate the operation of the Act. The case, in my view, is also incredibly weak. 
When Adler raised his concerns, some (including one person in particular) challenged his interpretation, adding that it is particularly important because it is being used in a way that will threaten the purpose of the statute.  I honestly cannot judge the merits of this bit of statutory interpretation, but as a general matter think what statutes demand in the sense that requires courts to strike down executive interpretations (e.g., so called Chevron deference issues) tend to be broad indeed. Laws tend to be able to be interpreted in various ways. This underlines the importance of whom administrates them. Unless fundamental rights like free speech are threatened, strict interpretation is bad policy.

So, putting aside my feelings that he sees things in a somewhat biased way, I really doubt Adler's case. I would not try to go man-to-man with a law professor on the statutory interpretation -- I'll leave it to this "quick" set of posts. I think "that the law should be enforced as written," which probably allows what is being done here.  Yes, unlike Adler et. al., I as a whole support the law (including as a realistic matter of possible alternatives), but that is only one factor into my view here.

Finally, one thing that annoyed me about Prof. Adler, who is less of a hack than a few people at his blog (see, e.g., Randy Barnett) is that he is aware of the reason the law was badly crafted in the way cited above. But, Adler did not take the additional honest step of noting the Republicans assisted this by refusing to let the draft bill go thru the filibuster to fix the kinks. I repeatedly noted this at the blog, the usual anti-Obamacare brigade taking this to be an attempt to let Democrats avoid blame.

Adler repeatedly sanctimoniously was concerned with the legislative messiness without being a real grown-up and challenging his side (he is a self-labelled "conservative") as to good government. If a law is going to pass, as this was, grown-ups allow it to be edited out (and if they want to get something -- not the whole thing tossed mind you -- fine).  Adler did this with the filibuster too. He says he is against the filibuster and other blockages like holds, but framed things as leaning against the Democrats. This includes noting filibusters started with Democrats blocking Estrada, ignoring how Republicans blocked people under Clinton.* Again, I use Adler as a stand-in for a wider concern.

Marty Lederman also started a series on the contraceptive mandate to follow-up on Eugene Volokh's "herculean effort." 


* The Senate confirmed another D.C. Appeals judge, after a Republican led all-nighter deal. Anyway, Adler really annoyed me by his strict us of "filibuster," even as I pointed out that his fellow blogger, conservative libertarian David Bernstein used it to apply to functional filibusters -- that is, blocking nominations by a range of procedural tactics.

Notable USSC Order

Concern for the drug protocol led the Eighth Circuit to stay an execution (the state just executed someone with an unfortunate first two names). The USSC vacated it 5-4, the dissent at least wanting to give the court time to clarify. Concerns like these are fairly common though lead to the "death penalty delayed but not denied."

Wednesday, December 11, 2013

A bit more ...

One thing I noticed in two biblical analysis books is reference to someone "loving" certain practices or texts. An interesting usage. Also, interpretation of texts and religious practice is akin to trying to interpret fossils or past cultural practices from what we have at a later date. This is part of the value of algebra (reason to cancel unknowns) and logic education.

Tuesday, December 10, 2013

Human Rights Day

The UN General Assembly proclaimed 10 December as Human Rights Day in 1950, to bring to the attention ‘of the peoples of the world’ the Universal Declaration of Human Rights as the common standard of achievement for all peoples and all nations.
 On a more personal level, happy birthday to 1/2 the reason I'm a human today.

A bit of majority rules ...

Sen. Lamar Alexander (R-Tenn.) wailed about the Democrats changing filibuster rules after his own party abused them and failed to put forth any real compromise (guess that's appreciated given the result).  Then, the grown-ups voted in a DC appeals judge and Federal Housing Finance Agency head. More to come.

The Bears

While Aaron Rodgers is out (if still in "double check" Bears themed commercials), the Detroit Lions shot to first place. But, injury did not totally stop the Bears and Packers. A tie might ruin it for the Packers, while a MNF explosion has the Bears/Lions now tied for first. Following a theme, the back-up QB on the Eagles have them in first place too.

Religious Exemption To Hobby Lobby -- Establishment Issue?

This continues a series that frames the issue in a way that appeals to my sentiment that those for religious liberty should be against their claims. I see it more of a free exercise concern but the two clauses do interlock and this does get to my concern that the net result is selective religious establishments since all claims won't be treated equally.

Holy Misogyny: Why the Sex and Gender Conflicts in the Early Church Still Matter

[This New Republic article touches upon some of this stuff too.]

I saw a book in the library that provided a revisionist look at the last week of Jesus' life (for those in the know, the co-author -- John Dominic Crossan -- suggests the approach), which looks interesting, but that is skipping a few steps.

Don't know if we are a couple weeks from a (to cite a comment) "undeniably" Christian holiday (see my comments with a cite to another small book* that helpfully sums things up).  It can be a general holiday for which Christians have the dominant presence in this country.  Either way, I myself was raised from that perspective -- secular or otherwise. So, though wanting to read more about Hanukkah and the historical story there (doing a quick search, all the library books directly about that were children books or one of cat themed holiday songs), did want to do some reading on that subject.  Instead, found a few biblical themed books.

This short book argues that women were in effect removed by the powers that be as active religious beings during the first few centuries of Christianity.  As a whole, the book had a graduate school feel though the general reader probably could get some value from the book. It did as things went along start to seem to presuppose you took intro classes on the subject and had the annoying tendency at times to assert** things that at best are reasonable theories. For instance, saying the Gospel of the Hebrews (which we only have excerpts of) is earlier than other canonical gospels, which we are repeated reminded are late glosses on earlier material. This is not repeated three or so times for this work.

I was drawn in by a good first chapter that provides evidence that there was a feminine presence in early Jewish religious practice. The book begins the theme -- what we have now, including in the final texts of the Bible (the Greek translation of Hebrew Scriptures greatly influenced those who wrote the gospels, the Hebrew at times providing different meanings -- see, e.g., Bart Ehrman). The texts are late glosses on events, such as post-exile Jewish writers framing Jewish "history" with the results in mind. This would include once mainstream polytheism or the understanding that there are other gods besides Yahweh ("no gods before me" doesn't necessarily mean there are no other gods). Tribes having their own dominant god was normal practice at the time (Greek/Zeus etc.). 

This included a feminine deity such as a consort for Yahweh himself.  There also was a feminine theistic presence expressed as "Sophia" (wisdom) or the like.  The word for "spirit" was feminine in the local language. So, "holy spirit" would originally be seen as a feminine presence unlike Greek or Roman usage which would be neuter or masculine.  This makes some sort of sense -- "father, son and holy spirit" would in effect be "father, son and mother." For instance, the Gospel of Thomas has this saying:
Whoever does not hate [father] and mother as I do cannot be my [disciple], and whoever does [not] love [father and] mother as I do cannot be my [disciple]. For my mother [...], but my true [mother] gave me life."
The "true mother" refers to the "holy spirit" (the Sophia or "spirit" or "mighty wind" seen in different forms back to the first verse of Genesis) which in the Aramaic language has a feminine form. This all conflicts with an understanding that on the level of perfection, the line is female-male-spirit. So, icky animal stuff like sexual intercourse was looked down upon by Paul, though he accepted it as a lesser evil to get married to restrict the chance of abuse there.  Jesus also was not big on marriage since he was ultimately concerned with the end of the world. Unlike you might think from reading Family Circus or something, his view that in heaven, we are not married, but spirits without search human institutions.  This explains who those who marry more than once (e.g., if their spouse died) will hook up with in heaven.

The book explains that one way this was handled was that Jesus brought salvation so that we all were reborn -- neither man or woman, to allude to Paul, are we, but one in Christ.  In effect, women were no longer feminine, so could preach, not wear veils (opposition to those by some Muslims never seem to address how Paul supported usage of veils) and so forth. They might be asexual beings (though some groups supported sexual intercourse, at times providing symbolic religious meaning akin to ancient gods and their consorts) but they should be seen as valid religious actors. At worst, women were like the first "man" (Gen. 1:27), before male and female as separate beings were created from him. Truly in the image and likeness of God, so able to be a religious actor and teacher.  A type of imperfect equality.  [see update]

The powers that be however took another approach -- women were inferior beings, those who tempted Adam (there are various ways to understand the text) from which they came -- Adam came from God, Eve from Adam's side.  Christianity gave women more of a role to play, such as to help the poor, but it had to be done in a restrained fashion. So, e.g., Paul supported the practice of women wearing veils, but later Pauline epistles (written in his name) have name unable to even speak out in church. There was potential in the Christian movement for a more egalitarian role for women, some took advantage in various respects, but ultimately "holy misogyny" won out.

This is now standard stuff in various writings -- see, e.g., Pagels, and for those familiar with the material, it is not overly surprising. It helpfully summarizes things in less than two hundred pages. The book as noted does eventually bog down in academic language (the chapter on gnosticism is hard to slog thru) and theoretical references. Stuff about early Christian communities that at best summaries possibilities come off as fact and lack of time clues (we are covering hundreds of years of history here) will confuse the uninitiated. This is unfortunate, especially since it started off on a better footing.

Overall, it shows the various possible implications of Christian thought and how what is currently seen as orthodox is not some given, but at times a problematic specific take on various options. The Protestant Reformation involved some trying to go back the original text, before all the damn Catholic gloss ruined things.  But, the text itself is a gloss, a mixture of traditions involved that then itself was given various meanings. Readers of the gospels can tell this fairly easily with the same events given notably different glosses, from the beginning to the end.

And, what this all means, including some pretty confusing things (you know, because of the angels!), is open to interpretation. Through a glass darkly indeed. Thus, the final chapter ends on a feminist note, The Woman's Bible by Elizabeth Cady Stanton in effect given the final word. In part:
The only points in which I differ from all ecclesiastical teaching is that I do not believe that any man ever saw or talked with God, I do not believe that God inspired the Mosaic code, or told the historians what they say he did about woman, for all the religions on the face of the earth degrade her, and so long as woman accepts the position that they assign her, her emancipation is impossible. Whatever the Bible may be made to do in Hebrew or Greek, in plain English it does not exalt and dignify woman
This late 19th Century bit of scholarship (female ministers are cited among those who helped put it together) is a remarkable piece of work. I never read it though have read of it before now. The link provides a chance to read it online and it shows much perspective on the material, one of then centuries long attempts to put the Bible to the test as if it was just some other work of literature. Thomas Paine also did some of this as did others.

I continue to think this informed look at religious texts is the best way even for those who believe they are inspired writings from God.  Personally, I think they are in effect symbolic expressions of human need to provide life meaning. As with other types of prose and poetry, this does not rob them of importance or worthiness. It just provides a different type of meaning and importance to them. This is how I would use books of this nature, part of a more comprehensive analysis of things.

A final thing. The Bible, including books that different religions do not deem canonical, is in part a pleasure to read as literature. This would include certain things that are just good stories. Sometimes, the Bible is remarkably thin in this respect -- the movie Ten Commandments aside, Exodus does not provide much detail about some major events in Moses' early life.  And, at times, there are some real gems. Judith, which Catholics include in their version, has what might be one of my favorite verses:
Her sandals ravished his eyes,
her beauty captivated his mind, the sword cut through his neck!
This also led to some good art. Yes, no matter how they are degraded, women have some good material to mine from here.

Update: A comment notes that there are two creation stories in Genesis, one which treats the sexes in a more equal fashion. The first one, which in the famous creation poem ("In the beginning") alluded to in the text here with the citation of 1:27: "So God created man in his own image, in the image of God created he him; male and female created he them."  

As suggested, this was taken in different ways, with some using the myth cited in Greek philosophy of a hermaphrodite creature that was later divided in two. The language still has a male leaning -- the "man" created first, the pure original, is a "him," even if it is different from a "male" human in its current imperfect form.  Some later suggested that this "first" woman was named Lilith and ran away because she wanted equal billing.

The second creation story, which is not only much more anthropocentric (animals created for man's sake, after man), but also has Eve coming from Adam's side.  But, I take from the book here that by Christian times, the two stories were in effect blended together. As Bart Ehrman notes with those who do this with the gospels, this changes things, each account having its own special meanings. I have two bibles and the Catholic version even has a note directly giving a Christian gloss on this text.

There can be different interpretations of the second creation myth (some gnostics, I take it, saw Eve gaining "wisdom" from eating the fruit as a good thing, thinking the god cited there was inferior and jealous), but it is more misogynist in tone or at least more open to such very negative connotations -- a woman took the initiative and look what happened!

But, that is but one way to look at things -- the Oxford Companion to the Bible and Karen Armstrong's In The Beginning, for instance, both suggest that the special blame some give to the woman is not mandated by the text, it is not what believers in general took from the account. "Original sin" was a later gloss. The very idea of a "Satan" was also a fairly late development, but in the few hundred years before Jesus, one that grew in popularity -- by his time, there was a feeling that evil corrupted the world somehow and a redeemer was particularly necessary to deliver us from it.  Time was ripe for Christian developments. 


* Christmas: A Candid History by Brian David Forbes.

**  The word "assert" to me has an implication that the person is stating something without appropriate evidence.  It to me is inappropriate if the person is reasonably providing a theory -- that would be "arguing" -- and at times, I think the word is overused. 

Monday, December 09, 2013

Senate Republicans Represent The Senate Now?

NLRB V. NOEL CANNING, ET AL. The motion of Senate Republican Leader Mitch McConnell, et al. for leave to participate in oral argument as amici curiae and for divided argument is granted, and the time is to be divided as follows: 45 minutes for petitioner, 30 minutes for respondent Noel Canning, and 15 minutes for amici curiae Senate Republican Leader Mitch McConnell, et al. The motion of Professor Victor Williams for leave to participate in oral argument as amicus curiae and for divided argument is denied.
The agreement that led to the confirmation of NLRB board members did not end this case because the decisions by the recess appointments (the case might determine if quotation marks are required here) still have to be considered. The Senate vote on applying the filibuster to appointments clearly has significant importance to the whole question too though how it will affect the legal dispute is less so. 

This will be the first big case to be heard in the year. The most notable thing in an otherwise boring (going by Scotublog) day of orders involves this case.  It is not surprising Prof. Williams did not get oral argument time though his brief arguing that this should be rejected on political question grounds while supporting the government is worth a look and pointing to the obstruction that has led to the usage of recess appointments. It argues that the latter should be justiciable too if the former is. Unlike in the DOMA cases, do not think the federal government would mind such a ruling, so there is not a special need for additional voice.

The Senate Democrats do not oppose the President's recess appointments here, so there is more of a conflict there regarding the McConnell involvement. In DOMA, BLAG provided a voice in support of the legislature (well half of it -- this to me was a problem on standing grounds; fine with its use to provide the other side) that passed the legislation that the President felt unable to defend. Here, the Senate has chosen not to defend its interests. Why should the minority step in? Would a single senator have the power to step in to defend a personal interest?  Perhaps, time should be granted to the majority side here to provide the opposite viewpoint, explaining why Senate interests are not denied here. The executive probably doesn't quite do the trick there.

I'm generally open for liberal involvement of briefs and voices at oral arguments, but it should be evenhanded. Here, the Republican minority alone is being granted time to provide the "Senate" viewpoint. Its brief underlines that is the primary concern for their involvement.  I can see how this is not on all fours, if here clearly on their side, with the Canning defendants. Still, if there is going to be voice for the Senate, shouldn't it come from the MAJORITY side?!  Why should the minority get separate time in oral argument while the majority's interests apparently are to be left to the government's time?

It does send a symbolic message that as some justices are all concerned with Senate privileges here, only a Republican minority of the body feels oppressed here. Checks and balances are not being denied here. It's true that if there is a constitutional limit, a group cannot delegate it away.  All the same, as Williams et. al. show, the Senate has various ways to protect its interests here without the courts trying to fine tune the word "recess" (or "the").  If the U.S. Senate as a whole actually opposed this move, fine.  I oppose giving the minority a special voice here.

ETA: Miguel Estrada is the voice of the Republicans here (at least going by the brief), helping the side currently supporting what helped block his nomination to the court of appeals. He is their often cited filibuster martyr, a gift that keeps on giving, in more ways than one. Look for some interaction with his pal.