'American Founding Son'

At times, I find his blogging a bit shallow, but Gerard Magliocca generally is fair and has an evenhanded mind about things, even if he self-represents as leaning somewhat right.

I enjoyed his past books and his John Bingham bio is pretty good. Still, at under two hundred pages (lots of notes), he could have added more detail at times. Bingham btw doesn't do originalism that much favors. He's rather opaque at times, others having changing, at times idiosyncratic views. He also is a flawed character when it comes to liberty. Perhaps, this human quality (politician too) appeals in the long run.

House votes to preclude feds from going after state-legal medical marijuana

It still was mostly a Democratic move (both sides are anti-drug warrior types, but one party has more dissenters), but this can be a "game changer." Plus, that is what is key in these matters -- some room for crossing party or ideological lines. We need to go further here especially with states with decriminalization out there. But, credit where credit is due.

"Academic Freedom Is Not Immunity From Robust Debate in the Marketplace of Ideas"

Prof. Hamilton is something of a strange animal -- an at least somewhat conservative leaning (supporter, e.g., of Bush v. Gore) strong supporter of the separation of church and state, someone in fact strongly critical of special privileges sought out by religious groups. She uses a dubious FOIA request to recover old ground. To quote again in response to an earlier (note title) such summary.

I share a lot of Prof. Hamilton's concerns but do think Yoder was rightly decided. There is a difference between such a general applicable law and something that targets religion though free exercise rights should in various cases protect individual claimants in both cases.

The Barnette pledge case, e.g., was decided as a free speech case, but three justices rightly saw it also as a religious liberty case. The essay here also does not really face up to Sherbert. It is correct that a general applicable law particularly should not be put to the strong test of RFRA but the "undue burden" test cited in Yoder is appropriate.

The Sherbert line of cases repeatedly cited the test in Yoder and it was used without the USSC voicing any disagreement (except in special cases like taxation, prisons and the like) until Smith (itself a shock even to the winning side) with the rule. RFRA in hindsight was overcompensation. But, I think she goes too far.

Sherbert was the unemployment case, which Smith carved out as an area where individualized discretion is possible. Yoder was in effect the one other case where the Supreme Court struck down an application of a general applicable criminal law (Smith avoided it by calling it a "hybrid" case, amusingly -- given this was Scalia -- the unenumerated parental rights component), which applied this rule: "A regulation neutral on its face may, in its application, nonetheless offend the constitutional requirement for governmental neutrality if it unduly burdens the free exercise of religion." A rule found too unduly burdensome in Smith, leading us to RFRA, both local and federal.

There might be something to Yoder being particularly notable -- it in effect is in the same spirit as education cases like Meyer and Pierce. The raising of children in a certain religious tradition is a core aspect of free exercise. "Exercise" -- as Hamilton's old boss Justice O'Connor noted in her separate Smith concurring opinion -- means more than belief. A recent book on the formation of our constitutional religious freedom tradition cited recently on this blog noted the same thing. The provision also means more than some sort of equal protection security or a guard against coercion. It is questionable if this should solely be left to (careful) political discretion, RFRA being as suggested above not quite finely tuned, at least if applied how some wish. The "ministerial exemption" and some degree of institutional freedom in this area underlines the fact. I'd note to that Smith itself was actually an unemployment case, even if the people in question were denied benefits for breaking a criminal law. They weren't prosecuted. That is also how the state court treated the case. Smith was in effect reaching for a change of the law, a bit of judicial activism.

Yoder was careful to note that "philosophical and personal, rather than religious," are not covered by the "religious" liberty at issue, citing Thoreau, though his beliefs had religious overtones. I won't go through them again, but also other cases spoke of freedom of "conscience" as well. This ruling noted:

Although a determination of what is a "religious" belief or practice entitled to constitutional protection may present a most delicate question, [n6] the very concept of ordered liberty precludes allowing every person to make his own standards on matters of conduct in which society as a whole has important interests.

The note cites a 1940s case that quoted a definition resting on theistic grounds, but by the time of the second case (1970), that would be too restrictive. It was already starting to be back then. As the concurrence cited noted: "a statute that defers to the individual's conscience only when his views emanate from adherence to theistic religious beliefs is [not] within the power of Congress." Justice Harlan's concurrence (as his opinions often were -- see, e.g., Poe v. Ullman) as a whole is interesting reading.

He too notes "mere adherence to ethical or moral beliefs" is not within the constitutional definition of "religion" but accepts the statutory meaning provided by the main opinion of "religious" in the conscientious objector statute might. In effect, beliefs on the level of religion, of equal intensity (a mere religious exemption here to Harlan would violate the Establishment Clause -- cf. the range of charitable/religious/etc. tax breaks). To quote an earlier opinion:

"And if that word [God] has not much meaning for you, translate it, and speak of the depths of your life, of the source of your being, or your ultimate concern, of what you take seriously without any reservation."

Some argue the discussion of "religion" here should not just be seen as statutory application but guide our First Amendment understanding as well. The Supreme Court and others, as compared to some lower courts, have generally avoided deciding the question. As noted, the Supreme Court has spoke of "freedom of conscience" or "of the mind" from time to time in ways that make it unclear how much this matters. As Harlan noted:

That it has been phrased in religious terms reflects, I assume, the fact that ethics and morals, while the concern of secular philosophy, have traditionally been matters taught by organized religion and that, for most individuals, spiritual and ethical nourishment is derived from that source. It further reflects, I would suppose, the assumption that beliefs emanating from a religious source are probably held with great intensity.

This "great intensity" or some inner core of belief is what is protected by religious freedom and beyond. One thing Prof. Hamilton rejects, however, is the application of RFRA's "least restrictive means" test, which as with the attempts in the Hobby Lobby case (cf. U.S. v. Lee) is not "restoring" old law, but expanding individual discretion. Justice O'Connor again cites the old rule:

[W]e have respected both the First Amendment's express textual mandate and the governmental interest in regulation of conduct by requiring the Government to justify any substantial burden on religiously motivated conduct by a compelling state interest and by means narrowly tailored to achieve that interest.

Past analysis shows a lack of "substantial" burden in the Hobby Lobby case, but even so, there are compelling state interests and they are "narrowly tailored" -- the "least restrictive means" rule is a lot harder. And, if nothing else, dubious when the government passes a general law that by chance burdens religious practice in some fashion as lots of things do. It especially is troubling when very important matters are involved such as child abuse, a particular concern of Hamilton's.

Anyway, as I said upfront, free "exercise" does warrant some protection even when general applicable laws are involved, but some sort of lower bar should be in place. Likewise, though the "hybrid" analysis seems results orientated, there is something to that. The Supreme Court has rejected some "core" religious concern test, but somehow some cases seem easier here -- be it rules regarding religious instruction or "exercising" what amounts to ritual experiences. Such is why I think N.Y. not allowing Universal Life Church ministers to marry people is clearly a free exercise problem. Realize just what is a "sacrament" can be hard to determine though a private v. public division (such as the public sphere of employment in the Hobby Lobby case) can help.

Hamilton might overcompensate, but she provides important balance all the same.

Caught in a TRAP

Judge Richard Posner asked why—if requiring admitting privileges was truly a public health measure—the state targeted abortion clinics, rather than regulating outpatient clinics that do procedures with higher complication rates. “Why did they start with abortion clinics? Because it begins with the letter ‘A’?” Posner asked.

Yup. Non-generally applicable health care rules to me is a constitutional problem here.

"From 'Rain Man' to a Taste of 'Honey,' Valeria Golino on Her Directorial Debut"

“Whatever you think of my movie, it resembles me,” Golino told THR. “It's a concentration, a perfume, of me. It has my scent.”

I have yet to seen it, but sounds like a great first effort from someone shined in both comedy and drama, in the U.S. and Italy. And, other places, probably!

"Newspaper Writes Blistering Editorial On McConnell's Shift On [ACA]"

"Kynect is the Affordable Care Act is Obamacare — even if Kentuckians are confused about which is which," the editorial continued.

Kentucky paper has it right. Darn, I hope this guy loses.

Mets Update

After the team blew the team game (again) for a young arm (the "Harvey treatment"), the hitting coach was fired and who I call "Papa Oh Vey" was DFA'ed. As a movie character noted, "things we could have done YESTERDAY," before the guy blew the game. Poor clutch hitting helped too. Good luck Lamar Johnson, Vic Black (new reliever) and maybe a new bat? Ha ha.

"A Separate Concurrence on the Kinsley Review"

I think at least much of this is on point and also think Kinsley's review fairly sensible. I say this as someone who long was tired of GG's schtick and wary about the outer limits of his views on this point. For an alternative view that thinks MK is a tool.

Supreme Court: Tribal Sovereignty

The surprise of the day (going by SCOTUSBLOG live blogging at least) was a 5-4 tribal sovereignty case. Native American legal matters is an area of interest for yours truly. As that blog noted (as here, in effect, it is seen as a limited win for the tribes):

The Court acknowledged the “apparent anomaly” in the law: although states can sue tribes for illegal gaming activity on Indian lands, they cannot sue them for the same activity off Indian lands. “But,” the Court continued, “this Court does not revise legislation . . . just because the text as written creates an apparent anomaly as to some subject it does not address.” And – significantly – even if the state can’t sue a tribe for off-reservation illegal gaming, it still “has many other powers over tribal gaming that it does not possess (absent consent) in Indian territory.” Most state laws will apply to Indians off reservation, for example: Michigan “could, in the first instance, deny a license” for an off-reservation casino; if the tribe went ahead with the project anyway, it could sue tribal officials to stop the gaming activity and, if necessary, invoke its criminal laws. Moreover, states also could seek a waiver to allow lawsuits for off-reservation gaming activity as part of its compact with the tribe regarding on-reservation gaming.

Justice Kagan wrote the opinion on precedent/judicial restraint grounds (Congress has power over Indian affairs), Scalia dissented separately to admit error in joining a key precedent, Thomas wrote the primary dissent and Ginsburg briefly noted she was joining with the proviso that she thought state immunity has gone too far too. I'm sympathetic, but as Sotomayor notes, it isn't really fair to only have one. If immunity is on the table, let's be consistent -- both sides should have it. And, congressional discretion provides a balancing of interests that the alleged constitutional state immunity bar does not so readily provide.

In the earlier case cited, Stevens (with Ginsburg/Thomas) criticized the immunity provided to tribes on three grounds -- it was a wrong-minded common law rule, it should be left to Congress and off reservation* activity should not be covered. As shown in his proposed amendments (see comments; though criticism has noted consistency would apply it to the federal government too), he wants to end broad constitutionally based immunity largely on fairness grounds:

Third, the rule is unjust. This is especially so with respect to tort victims who have no opportunity to negotiate for a waiver of sovereign immunity; yet nothing in the Court’s reasoning limits the rule to lawsuits arising out of voluntary contractual relationships. Governments, like individuals, should pay their debts and should be held accountable for their unlawful, injurious conduct.

The provision here is congressionally imposed. The opinion notes states have ways to avoid the immunity bar. As to innocent victims, it also noted in a footnote:

We have never, for example, specifically addressed (nor, so far as we are aware, has Congress) whether immunity should apply in the ordinary way if a tort victim, or other plaintiff who has not chosen to deal with a tribe, has no alternative way to obtain relief for off-reservation commercial conduct.

As to the off reservation immunity aspect, bad policy or not, Congress can balance various concerns here. Justice Sotomayor provides the Native American voice, so to speak here, including this argument:

Tribes are ever to become more self-sufficient, and fund a more substantial portion of their own governmental functions, commercial enterprises will likely be a central means of achieving that goal.

The previous ruling offered the other side:

There are reasons to doubt the wisdom of perpetuating the doctrine. At one time, the doctrine of tribal immunity from suit might have been thought necessary to protect nascent tribal governments from encroachments by States. In our interdependent and mobile society, however, tribal immunity extends beyond what is needed to safeguard tribal self-governance.

Congress pursuant to its power over Indian commerce has the power here to balance things out. As the majority (joined by Roberts and Kennedy) noted: "We ruled that way for a single, simple reason: because it is fundamentally Congress’s job, not ours, to determine whether or how to limit tribal immunity." "Fundamentally" doesn't mean "completely," so perhaps there is some wiggle room there. But, as Kagan said when using a gambling reference against the state's claims, the argument for the courts to strike down discretionary partial immunity here "comes up snake eyes."

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* Justice Ginsburg joined Thomas' (yes, she didn't use the second "s"!) dissent with one "reservation" and noted that she does not think the majority's opinion should have "staying power."

Supreme Court Watch: Criminal Justice

First off, intriguing argument about addressing "small scale" violence better to deal with gun violence overall, including the mass shootings of the sort that get the most press.

As noted here, with multiple later posts (see also SCOTUSBlog) on the 5-4 ruling on proper standards for determining mental impairment in capital cases. In the view of one blogger:

But while the Court has in my view but too much emphasis on the consensus of state governments in its Eighth Amendment jurisprudence, it has never claimed that the current consensus or lack thereof is the only criterion relevant to Eighth Amendment cases. Executing the mentally impaired, for reasons eloquently explained by the majority, inherently conflicts with the individual dignity and fairness required by the Eighth and Fourteenth Amendments. By creating an unacceptably high risk of executing a mentally disabled individual, Florida's standards violate the Eighth Amendment, and this would be true whether one state used them or fifty did.

The "nose counting" here is done basically to address the "unusual" part of cruel and unusual, in part because of the argument that both criteria must be met. Does this mean that if the rack somehow became "usual" again, it would not violate the 8A, even if patently cruel? The term "unusual" has often been largely ignored as an independent criteria as noted in Trop v. Dulles in lieu of some general principle such as the "basic concept underlying the Eighth Amendment is nothing less than the dignity of man."

The word "unusual" should have some meaning, yes, but especially taking the Constitution as a whole, it ultimately has limited bite. [An interesting take is discussed here.] We saw this in the lifetime without possibility of parole for minors case, e.g., where the fact that it wasn't overly rare wasn't enough to save the procedure at issue. Common practice is perhaps a rebuttable presumption of some sort. At any rate, as noted above, basic "fairness" might require striking down a punishment. This due process laden sentiment does not rest on nose counting. That is but a supporting argument. And, the mixture of reasons for not executing the mentally impaired is a case in point: both dignity and procedural fairness are covered. Finally, the opinion should not be stereotyped -- e.g., it did not merely rest on medical judgment.

Meanwhile, a few other cases of a criminal nature (one was more of a First Amendment case involving protestors), including a per curiam striking down something on double jeopardy cases via a bright line rule. Basically, putting aside the latter, we dealt with bad fact situations that were losers for the defendants, even if there was some reason to be concerned. Ginsburg/Breyer didn't join all of Alito's opinion in a deadly force case, but Ginsburg's opinion in the 1A case was fact specific (see, e.g., the SCOTUSBlog summary*). No big surprises in this area today.

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* OTOH, see discussions cited here, especially one pretty upset with the ruling. I admit to only briefly looking over it and think it's unclear how a closer case would be decided.

"Sleep is good, he said, And books are better." ― George R.R. Martin

The inspiration.

Bomb Girls Movie

Memorial Day is an apt day for the U.S. premiere of this satisfying conclusion (if it is) of the series many fans thought ended too earlier & surely on an unsatisfactory note regarding at least one subplot. It concerns some women working at a bomb factory during WWII in Canada, one who is now a spy. Basically everyone returns -- rebroadcast on Reelz on June 1st.

"Is nitrogen gas the best modern execution alternative to lethal injection?"

As I note in comments, curious how this new "solution" is never used. Is it the connotation of "gas" in general? Or, as suggested, its connection to euthanasia? Problem with "unusual" punishments? Something else? Also, "best" doesn't mean the punishment is substantively acceptable. But, if it exists, the best possible means should be used. What is the goal there?

Belle

The Wikipedia entry notes this (an overall enjoyable film about a mixed race girl raised by Lord Justice Mansfield of Somersett case fame -- not referenced here in part for dramatic effect given another case involved) is a work of "historical fiction" though there is a "based on true story" (or the like) notice. Yes. But, not only for lack of info, as I saw from a glance of her actual bio. Understand though why change a key point of the painting?!

Delancey

I referenced this book about a young couple opening a pizzeria in Seattle earlier. It's decent, nothing special, and a bit forced in trying to find "life lessons." Also, the recipes basically are filler, if at times connected to the goings on. Pleasant enough read though.

"Applying ‘Brown’ To Void the Debt Ceiling"

I'm sympathetic to this lawsuit (if not supportive of everything said) to void the debt ceiling though made it known in the past that I think the issue somewhat complicated. The "private attorney general" concept is one that I support too, if more so than many judges these days.

Professor Talks About "Trigger Warnings"

Interesting. Per one thing she said, they are fairly common on television etc.

The Equality and Coercion Issues Inadequately Addressed in Town of Greece v. Galloway

[O]ur disagreement is not just with Justice Kennedy’s interpretation of constitutional law in this case; we see a different real world than the one he describes and to which he applies constitutional principles.

See more here. His failure to engage with the dissent didn't help.

I see (expression) of dead people ...

I have been thinking that literature or art could be a route into a more persistent presence of the dead. Mary Favret, a literature scholar at Indiana, gave a brilliant paper at Emory last year on soldiers and suicide. She explored the topic through close analysis of 18th and 19th C paintings, and suggested that "if something cannot be articulated in language, it might nonetheless be made visible." -- Mary L. Dudziak

The question then becomes "will those who see, perceive?" [that's me, no extra charge]

Origins ...

I don't support reparations, but this is interesting for its journey -- it is important, e.g., to understand just how much slavery was basic to antebellum society. Change sometimes is very hard to come by for a reason -- doesn't mean change is wrong, it does help understand why it's so hard a bit more. Meanwhile, on immigrants by one of the better NYT columnists.

Delancey

The author of a leading food blog has a new book out about opening a pizzeria with her husband (named after a Manhattan subway stop/area, but in Seattle). It is pretty good so far. Fan of bread and bread related products myself. Can make a meal out of loaf of garlic bread and some broccoli. Focaccia bread is great too. And, crackers with pasta!

A “message” from the Court on same-sex marriage?

I think the concurring opinion to a 9th Cir. stay of a SSM in Idaho ruling has bite. Not clear-cut compelling, but has bite. Under current law, there is not a strong case (though to me, some degree of sense) in holding up marriages, but SCOTUS sent another message.

Endowed by Our Creator: The Birth of Religious Freedom in America

I think this analysis (including its praise of the book) is right as to the Court's brief citation in Galloway, the problem being not misstatement but failure to face up to the analysis, especially given how "history" is supposed to be so important here. "Precedent" also didn't compel the result. Book is fairly standard but appropriately evenhanded and cautious.

"Acts of Perpetua and Felicitas"

This account (mostly in Perpetua's own words) was not included in A New New Testament out of a desire to limit the books to the time period of the writing of the New Testament though a few of the former books might actually have been written later. It's a striking account including the actual martyrdom in the arena. That father's pathos especially.

Abortion on TV -- Still Controversial

A long concern of mine is discussed here by someone in the know.

Rev. Joe -- For Those Who Find Revelations Too Prosaic

I recently discussed a short book on Gnosticism and the last book in A New New Testament -- Apocryphon of John -- is a good place to look to examine the basics in their entire rather confusing complexity. The Letter of Peter to Philip provides a much shorter summary.

Brown v. Board of Education Turns 60

A few links about the ruling. Also, here (Shag, far down).

Doomed To Repeat ...

I was a Yankee fan in the Torre years, but as the old guard started to break up, became a stronger Mets fan. Unfortunately, this was during their imperfect years, when they did a lot of teasing, but dropped off at the end. This was to be a bridge year, but problems again. The handling of Lagares even has led to the SNY field reporter to lash out. Moronic business.

"If Guantanamo closes, what then?"

GITMO has various problems, including its isolation, so it matters if it closes even if "that could mean a continuation of indefinite detention without a trial." Note too, potshots at "no one caring" aside, how their efforts have been "frustrated by limits that Congress has imposed each year" and it has not just been forgotten about. Good discussion.

Secret Side of Empty

THE SECRET SIDE OF EMPTY is a young adult novel about M.T., a high school senior who is is undocumented. As a straight-A student with a budding romance and loyal best friend, M.T.’s life seems as apple-pie American as her blondish hair and pale skin. But she hides two facts to the contrary: her full name of Monserrat Thalia and her status as an undocumented immigrant.

The author knows of the subject though growing up in a different era. Slips a bit late, but on the whole, good first novel with a main character we can relate to.

IRS -- Still Nothing Really There

See here. Up there with Benghazi and in person voting fraud.

"Ky. District 'Keeps Faith' on School Desegregation"

h/t SCOTUSblog morning round-up, some interesting analysis about the current status of school (de)segregation, including an update to the companion case to the infamous Parents Involved case. Kennedy's concurrence apparently has some value there.

"An oral historian privilege?: Thoughts on the Gerry Adams Arrest"

I am sympathetic with this reply to a (sadly typical) somewhat overboard post, especially when the oral historians themselves have a restrained reply to the controversy.

"The Death Penalty in the United States and the Force of Regional Human Rights Law"

There is sound criticism of the "universality" of natural law, but this article ends with an interesting bit on "[r]egional human rights laws and institutions are understood to reflect the shared histories and political, economic, or cultural realities of a geographic area." "We" hold these truths self-evident ... that's how our Declaration explains things. Telling pronoun.

Federal Judge Overturns Idaho’s Ban On Same-Sex Marriage

Notably she started with a quote from Justice Blackumn's Bowers dissent, giving him his due in this context. In Lawrence, it was Stevens' dissent that was quoted. Meanwhile, the military's ban on transgender members is seriously being reviewed. Times change.

Interesting Articles

Interesting articles over at NYT: efforts to have "bird safe" glass and a fat woman speaks out on a t.v. show on male reactions to her -- don't watch the show, but it's a good example of how fiction can have something important to say. As I said in a letter back in that '90s.

Emily Letts Films Her Abortion

Some analysis here. Overall, it's great she told her story this way. Abortion is too hidden, including not being covered enough on television or the movies. 

“Heroes . . . who lost the fight”: Lea VanderVelde on Dred Scott

The appointment of a lawyer is news to me. Interesting stuff.

SSM Comes To Arkansas

Congrats but I sorta think a stay to allow for a smooth process here sensible.

Happy Mother's Day

Heard some woman tell a child that really every day is Mothers' Day, Father's Day. True enough. But, good to have a special day to remember things there every day.

Lessons From The Past ...

It has been over forty years since Mildred Loving was given the right to marry the person of her choice. The hatred and fears have long since vanished and she and her husband lived full lives together; so it will be for the same-sex couples. It is time to let that beacon of freedom shine brighter on all our brothers and sisters. We will be stronger for it.

Arkansas state judge, striking down marriage ban. Will any court ever again UPHOLD such a ban? Meanwhile, powerful/tragic Atlantic article on a return to segregated schools.

"under God" upheld again

A Massachusetts state challenge to the usage of "under God" in the Pledge of Allegiance failed in the court of appeals though a concurrence noted:

To be sure, as our holding makes clear, the plaintiffs here did not successfully allege that their children receive negative treatment because they opt not to recite the words "under God," or that the inclusion of that phrase in the pledge has occasioned "the creation of second-class citizens." Goodridge v. Department of Pub. Health [same sex marriage case]. Absent such a showing, the plaintiffs' claim must fail. [citation omitted] (differential treatment is "[o]ne indispensable element of a valid equal protection claim"). But our holding today should not be construed to bar other claims that might rely on sufficient indicia of harm. Should future plaintiffs demonstrate that the distinction created by the pledge as currently written has engendered bullying or differential treatment, I would leave open the possibility that the equal rights amendment might provide a remedy.

The argument made was narrow -- an equal protection argument that was rejected because "no classification, let alone a suspect classification based on religion, created by the practice of reciting the pledge in the manner it is presently recited, voluntarily." A direct requirement to say the pledge failed in the 1940s. But, let's be honest, and note that there is a form of pressure to say it. Merely calling it "voluntary," and that "Students are free, for any reason or for no reason at all, to recite it in its entirety, not recite it at all, or recite or decline to recite any part of it they choose, without fear of punishment" is a bit much. That hasn't been held to erase coercion to say prayers, nor does lack of school punishment.

The ruling earlier cited past cases that labeled the pledge "a fundamentally patriotic exercise" and not "religious" though it might have a "religious tinge." This is a bit ironic. The mild establishment here is helped by it being a patriotic anthem. Children, via an official pledge to the symbol of the nation, are instructed to say they live "under God." This enmeshes a religious concept -- living under God -- with the state. What is "establishment" if not an official creed of this sort? If the "under Jesus" was in there, the fact it is a "patriotic exercise" won't save the day. Theism cannot be established either. Finally, "its wording as a whole, the preamble to the statute, and this nation's history -- demonstrate that it is a predominantly patriotic exercise." A look at "history" will show that "under God" was expressly included to reaffirm we are not atheistic commie types. It was only added to our national anthem in the 1950s just for that reason.

Not believing in God was in effect seen as basically anti-American. I can understand somewhat why agnostic and atheistic parents see the inclusion here as a form of stigma against their beliefs. But, the opinion had a point that given the specific claim - not a First Amendment argument (which repeatedly lost in the courts) - requires a high bar here. Various state policies clash with religious and conscientious beliefs without violating the equal protection provision cited. The usage of "under God" is far from benign, and I can see some kids being harmed in the way cited by the opening quote, but it's believable that the facts don't show it here.

I wouldn't be surprised, if they put forth a reasonable case, just not one that the courts would likely accept. Still, I think this is more clearly a religious freedom case directly, be it one that was a loser, which is probably why they went this way. Still, it requires the usual white lies at best to explain how benign this all is.

Charmed Open Credits

Good credits and song though "daughter" would work better.

Say "No" To Judicial Electors

Yup. H/t Election Law Blog. My central beef near me is that basically no one (at least the average voter) knows anything about these people. I was hard-pressed to find out about the candidates even when I tried -- we get a voter's guide, but they aren't even included! The other concerns ring true too. Republicanism has some value over direct democracy here.

"Antonin Scalia Emerges As Fighter For Fourth Amendment Privacy Rights"

I'm with the ACS person -- qualified praise, including remembering Scalia and Thomas don't join in everything. His opposition to the exclusionary rule should have received a bit more notice. I saw another article that flagged him as sort of a swing justice here. Might be overall more accurate. He's not simply kneejerk, but "Scalia tendencies" do arise in this area.

Charmed (Season One)

I recently read Alyssa Milano's book on baseball (decent) and caught this series on demand (repeats are on TNT). Didn't get into to it when it was on, but watching the first series, might be that it lost something as it went along. S1 (DVD/no extras) was rather good both acting and general storylines. Good use of character stories. I vote for Piper.

Cheerleaders Deserve Fair Pay

I agree with someone who told me recently she thought ball players were paid too much (and surely with the problem with long contracts), but up to a point it seems fair for them to get a piece of the pie. But, so should others who provide us the overall sports experience.

"Convicted Murderer Who Inspired Film ‘Bernie’ Is Released to Director’s Garage"

I did not see the film, but the result (out of Texas yet!) is a bit reassuring though the "celebrity" nature of the case was likely significant. Still, the prosecutor recognized his mixed role (justice overall). And, the same principle often arises in death penalty cases -- the person is not innocent, but at least perhaps is not guilty enough for that level of punishment.

"Legislative" Prayer case handed down 5-4

The legislative prayer (perhaps a misnomer, if we go by the dissent) case was decided today and SCOTUS has a pretty good summary with a list of criteria regarding the updated "test" as submitted by the Kennedy Five.  Spoke myself about the case in the past, including here.

The summary doesn't do much to discuss Kagan's excellent dissent (a blog post sympathetic to her side), which is unfortunate (the blog's summaries often don't focus too much on dissents, but it might have warranted a bit more discussion here).  There were multiple opinions, but two main ones.  Alito responded to the dissent, since Kennedy never does. Thomas/Scalia felt the controlling plurality asked too much in its in effect coercion test.  Breyer joined the dissent but underlined that how his facts-laden Establishment Clause philosophy was violated here.  My only mild surprise is that it was mostly a clean 5-4 ruling -- figured Breyer might concur or dissent on narrow grounds or something. 

As he did with Blackmun's opinion in the Seattle case regarding the rules regarding the political process doctrine in the affirmative action case, Kennedy wore away some of the until today current (if doomed) law as applied by Blackmun in the creche case.  The key issue here was the need for nonsectarian prayers, something Alito et. al. ridiculed during orals. Somehow, however, various legislatures and probably others do try to do that.  Realistically, yes, prayer itself is sectarian. It's a matter of degree though.  And, the facts here via the "reasonable observer" used by the plurality would show that the prayer regime here favored certain religions. As Kagan noted, it also as applied to the facts here, has a "coercive" effect.  Anyway, the nonsectarian rule was not clearly expressed in the key precedent (Marsh v. Chambers), but it did note the prayers there were of that nature.  The hand-wave done by the plurality here is a bit much.

And, at the end of the day, the overall concern about focusing on the content of prayers is required even by the majority today. Determining if the prayers "denigrate, proselytize" would at some point require looking at the content.  The "tradition" honored by the plurality is that the prayers here promote "the idea that people of many faiths may be united in a community of tolerance and devotion." The dissent does a good job showing how that rule is violated here. As is often the case, the stereotypical godless left is the one the more fully honors religious belief and practice here, including honoring the separatists among us (a core group behind the relevant clause for those who care about original understanding).*  Finally, the problem with the coercion test as applied here is that the Establishment Clause goes beyond "free exercise."

The dissent a fashion relied on this not really being a legislative prayer case at all.  An important factor there is that internal legislative practices are a special case, not the same as an establishment that affects the public at large. As shown by the dissents in Marsh v. Chambers, and even with the limited barrier set up here (largely coercion over endorsement), it is not anything goes even there. The barrier to "religious tests" includes internal legislative action. Nonetheless, as noted here, we are not talking the usual legislative prayer situation in this case.  The prayers here are much more a matter of the public at large.  Again, the plurality simply did not honestly face up to this fact, particularly as applied to the facts in place here.

The case was a loser pretty obviously -- the 2nd Circuit applied endorsement test precedents with a specific concern to the effects of the practice in place.  A full respect of religious diversity while still upholding the (honestly problematic) practice of legislative prayers (even applied to this context) would have upheld the lower court.  But, Justice Kennedy wrote the dissent in the case where Marsh was applied this way and even when school children was involved, Kennedy wrote an opinion using the coercion test (Lee v. Weisman).  He has repeatedly been concerned with leaving open religious expressions in public places. The situation here was just not blatant enough to get his vote to uphold the lower court.

As is getting to be her wont, Kagan provided a clear and powerful opinion providing an alternative voice.  It also was more honest.

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* The plurality took a type of modified historical approach, citing those practices that have met the test of time, which helpfully explains (see also, e.g., Lawrence v. Texas) history alone should not be the judge. But, the dissent was able to use history for its own purposes, and this form of the test only helps it (both sides somewhat selectively use history, so history with an asterisk is basically an honest approach of what is going on). The dissent also uses a broad definition of "religion," to further a theme of mine:

These are statements of profound belief and deep meaning, subscribed to by many, denied by some. They "speak of the depths of [one's] life, of the source of [one's] being, of [one's] ultimate concern, of what [one] take[s] seriously without any reservation." P. Tillich, The Shaking of the Foundations 57 (1948).

To add to this footnote, Dahlia Lithwick (kinda "spicy" to quote Justice Ginsburg) does a good job here showing the problematic de facto establishment of Kennedy/Alito honoring some general civic religion that turns out to lean a certain way. Cf. repeated cases of disparagement in the very holy books of the religions honored here. The problem was flagged in the oral arguments, e.g., of an early case regarding a law requiring reading aloud a few biblical verses every school day.

The majority assumes a certain floor of inclusiveness that in effect establishes a certain brand of civic religion.

That's A Major Bummer (understatement) Alert ...

The last few months have arguably been the most difficult months in my life. I apologize in advance for seemingly abandoning this site, but I've been a little bit...preoccupied.

You think?

The Tao of Pooh

The use of graphic volumes (including manga) to discuss various topics, including the U.S. Constitution, has had some success from my experience. This well known volume uses Winnie-the-Pooh to provide an introduction to Taoism. I actually read a Pooh book (the first, a beautiful recent edition) and found it charming. Turns out, the author's son apparently had negative feelings about being used as source material.

Benjamin Hoff here summaries Taoism as basically about "happy serenity," being guided by the nature of things without fuss or overcomplication.  Thus, Pooh provides a useful representative of the ideal Taoist -- happy-go-lucky sort that serenely (have this idea from reading the stories that the Disney version loses some of the charm) goes about his life, going with the floor. I have in the past briefly read up on the philosophy/religion, so am not the best one to judge this exercise though going by Amazon reviews (ha), there seems to be a mixed reaction with some upset that Hoff treats alternative viewpoints so negatively. Found the book (158 pages) a decent read though came out from it thinking he oversimplified things and forced the issue a bit too much.

From the Taoist point of view, sourness and bitterness come from the interfering and unappreciative mind. Life itself, when understood and utilized for what it is, is sweet. That is the message of "The Vinegar Tasters."

So, there is the principle of the "uncarved block," the basic nature of things  that should not be resisted, including by smarty-pants trying to in convoluted ways explaining away things. The problem is when we resist this "force" ("tao"), which should be recognized by intuition if we just let it be. Listen, child-like, to our inner voice Everything has its own place and function, each person has an inner nature that we should recognized and go with. And, later the importance of compassion is noted (compassion, frugality and humility, again they do sound Pooh-like -- he isn't frugal as such, but has few needs -- are listed as the "three treasures" here). 

That is a rough thumbnail sketch.

"Federal Court Strikes Down Discriminatory Wisconsin Voter ID Law"

Just one ruling, but pretty notable one. I'm still with Rick Hasen.

World Without Fish

Never really liked to eat the stuff and am a vegetarian anyway, but this book (geared toward teens) about sustainable fishing is still important and a pretty good read.

Two Other Things

(1) Yes, a "national day of prayer" is problematic, particularly since "prayer" is a certain type of religious practice, mild sectarian endorsement or not. (2) I'm wary of partial lists for "equality" or "cruel or unusual," etc., so don't like Stevens' death penalty amendment idea. But, guess who argued the defendant side in Baze v. Rees? Our current U.S. solicitor general.

Justice Stevens x 2

Latest book promotion appearance -- the U.S. Senate.  Full remarks found here along with overly broad sentiments on searching bank records and the like. A lowly clerk might see medical records; showing it to the government, a bit different. Best spin on his "money is not speech" bit (easily confused) is that yes it is used for it, so has some protection, but not the same as pure speech. Lyle Denniston was wary about his remarks (can apply to both).