New Books

See updated side panel (I left one book from the old look apropos of the children from Central America controversy). Pretty good run of late, with a few false starts. Also liked The Silkworm, but you know, so does a lot of other people. Just read a decent small book with nice pictures, Chasing the Rose, as well. A bit of history with your botany.

Life and Death Priorities

At times, people note we care too much about the death penalty over and above other life and death issues. Probably so, but as noted here by moi, it isn't surprising nor necessarily mutually exclusive or anything. Good reminder though -- think, e.g., traffic fatalities.

Death of a war criminal?

The last member of the crew of the Enola Gay has died: Theodore Van Kirk, navigator, age 93 – standing, second from left.

See here and the link provided.  Interesting discussion. I'll be honest and say I have not read deeply on the matter. TBA makes a good case though I'm sorta wary to firmly agree.

Longest Game (in time) Ends When "Pitcher" Scores

Both the Chicago Cubs and Colorado Rockies ran out of relief pitchers in a marathon game. The Rockies then turned to a starter. The Cubs used a catcher -- and won.

Fun times. Plus the shower:

"I got beer, I got chocolate milk, I got hair gel, I got shampoo, I got body wash, and then I got more beer," Baker said. "Best shower I've ever taken."

The Fault in Our Stars

I saw the author of this popular book, now film, on Colbert Report and he gave a good interview. The film about two teenagers connected by their cancers who fall in love was impressive, the leads reminding me of the connection of the young couple in The Notebook. The supporting cast was very good too. The leads a bit too healthy looking at times.

4CA Strikes Down SSM Ban

See here with the ruling provided here. A summary of same sex marriage in the United States and (since -- like the 10CA -- it rests on the fundamental right to marry, not addressed here as such) the Obama Administration's argument that sexual orientation warrants heightened scrutiny.

Looking at the summary, the dominoes in the federal appellate courts are even more quickly falling than one might imagine. First, the 9CA (following the 2CA below in Windsor)  held that sexual orientation warrants heightened scrutiny.*  It is basically pro forma -- as basically recognized by a judge who dissented from denying en banc on the question -- to move from that to SSM being protected.  Nevada, e.g., gave up the fight once that happened.  Also, given state action in states in the first three circuits, don't see how the question will even arise.  SSM is already protected, in NJ and CT via state court action (PA decided not to appeal a district court ruling).  Perhaps, the scrutiny issue could arise.

So, that's basically half of the circuits (1-4CA, 9/10CA) and probably should toss in D.C. (where SSM was passed by popular vote) though I guess some issue might arise in which it comes up (I don't know how at first blush; also there are specialty courts too).  The 7CA might be the next up and it seems doubtful that it would not recognize SSM as being protected.  Odds, I think, the 6CA won't be the first either.  I think if there was a circuit split, it would arise via action in the 5th or 11th -- the South. Guess, to be careful, there might be an en banc ruling in the 4CA.

Update: Another person elsewhere flagged that though it wouldn't likely come up in the states, NE circuits would cover places like Puerto Rico (1CA) and the Virgin Islands (3CA), where SSM is not recognized.  

I personally thought the dissent in the 10CA rather weak, it partially based on the holding action idea Baker v. Nelson is still good law. This dissent is a tad more well written but basically as lame.  The same old lines are brought up, including "traditional marriage," ignoring that institution involved various things that are patently rejected -- including as a matter of constitutional law -- today.** A variety of "new" things developed over the years.  The dissent even recognizes SSM meets the terms of "marriage" in a variety of ways (I appreciate the majority being the second appellate court to cite Turner v. Safley to show the complexities of marriage, including beyond the procreation angle).  

Only the union of a man and a woman has the capacity to produce children and thus to carry on the species. And more importantly, only such a union creates a biological family unit that also gives rise to a traditionally stable political unit.

The judge doesn't appear to be aware of the idea of IVF or adoption here. The "union" that does this is not merely marriage, but sex or even fertilization via the test tube.  And, yet again, sadly, marriage is seen as small. Marriage has a variety of aspects and is not just there for those willing or able to have children.  As to society regulating the "family unit," yeah, including the "family units" involved in these cases. As to "no language" protecting same sex marriage, the whole "equal protection of law" stuff seems suggestive at least. The attempt to make the ban "rational" is perhaps the least wrong aspect of the whole affair, the fundamental right to marry and an appropriate heightened scrutiny of sexual orientation (or recognition of sex discrimination) just easing things along there.

The ruling itself was rather short -- don't be fooled by the page count, in part because the main text only begins at page twenty, and a sizable portion is spent on standing and such issues. Also, note the big fonts. Surely, the battle is not over, but it does seem as applied to SSM itself just a matter of time now.  Will legalization of marijuana eventually seem this obvious?

---

* The opinion here continues a semi-trend in noting Windsor did not provide clarity on scrutiny, but it did in a limited way:

In determining whether a law is motivated by an improper animus or purpose, discriminations of an unusual character especially require careful consideration. [punctuation cleaned up]

The general trend is not to rest on that when striking down SSM though I think (as that article suggests) the facts would justify it. Anyway, Lawrence v. Texas didn't rest on special animus alone and nor should this. Plus, whatever that ruling held, the right to marry is clearly fundamental and warrants strict scrutiny. So, as applied here, the matter is somewhat moot.

**  ETA: In Bowers, we had the same idea that "traditional" rights to privacy did not include the same sex couples involved.  Lawrence v. Texas was not specifically about marriage, but its principles apply if we are consistent. Its opposition to narrow respect of rights applies here too.

This is part of the "it's new" argument's problems -- line-drawing.  Same sex marriage is basically the completion of a series of recognitions of same sex intimate association rights over the years. Bit by bit, the parts were recognized (right to associate, to have sex, to cohabit, have government jobs while doing so, right to form families recognized by the state etc. etc.). Toss in religious and other beliefs on the subject, just how "new" is the whole thing, exactly? And, once the foundations of not recognizing marriage falls, how much does it matter? 

The Fosters

I feel this show jumped the rails after the first ten episodes, but when it was flagged the latest episode had an abortion sub-plot, checked it out. It was covered well but the episode as a whole was excellent -- like the good episodes of yore. The various characters had time to shine and it had just a bit of comic relief. And, I'm even starting to like Mariana's hair!

"Language Clarity Above All"

The concern over the word "accident" here brings to mind my own concern about misuse of language such as use of "murder" to apply to drone attacks (why not just call abortion "murder" then, if we are going to moralize legal terms?). A potshot at my concern for small family owned restaurants also lead to a "you mean Hobby Lobby?" No, I did not, and in context the comment was a cheap shot that suggests failure to care to try to understand.

Mary Jane Policies

Some interesting thoughts on marijuana here. I got in a bit of trouble voicing my sentiment against a total ban on smoking in restaurants. Find that a bit extreme. Agree with a comment about how quickly it developed. NYT article referenced here too.

“Supremacies and the Southern Manifesto”

Interesting extended discussion of this important document.

Vegan Friendly Legal Blog

Dorf on Law has multiple vegan members though I disagree with some of their sentiments (e.g., certain opposition to attempts to relieve animal cruelty since in their view it [net] encourages the wrong). One thing discussed in the thread are "meat analogues." For reasons cited, I am okay with them, though one thing that should be noted is many aren't even vegan. Me personally, I want to go the whole way, if I'm going to take the effort. Boca is a brand with some good vegan products. Gardenburger has them, but don't like it that much.

Carrying Arms Upheld Outside Home

I think, like the opinion cited here, a sound application of current 2A doctrine would protect some sort of right to keep and bear arms outside of the home. It's due time that the USSC clarifies a bit more on how. There appears to be some conflict on the circuits as well. Also, I'd hope at least one liberal of the four accepts Heller to some degree by now. More.

What a tool

Cuomo is obviously going to win but this sort of thing (against a colorfully named challenger who has done good work on campaign finance and other issues) only advances discontent from the base. You got my primary vote, sister.

The Silkworm

Never got into Harry Potter, but liked/liking "her" two mysteries overall. The first ended with too much exegesis -- "Robert Galbraith" needed editing there. The old-timey quotes at the start of each chapter this time is getting a bit much. Do like the book itself, including the female assistant "Robin." British, but is that a Batman reference?

"Catching Meals Across America: Anthony's Recker-mendations"

I realize as a player, he's replacement level, but like this guy. Many fans on Twitter too, particularly women. Sorry girls, he's married. No NYC citation though.

Bel Kaufman

I read Up the Down Staircase a while back. Liked it. Author had an interesting life.

Frozen Is Not Her Only Animated Work ...

Kristen Bell as Mary Poppins. The dignity of workers to me is the most basic concern here.  New York is slowly raising the minimum wage but only up to $9.

"After stays vacated, Arizona needs two hours to complete another ugly execution"

Oh well. After a short lived state court stay.

Update: State assures us he was just snoring & not in pain, but when Sen. McCain brings up "torture," you might have a problem. Appearances matter, adding to concern with secrecy. Meanwhile, yes, the victims' family were not sympathetic. We don't just follow their wishes when applying the law or we wouldn't execute when they are against it.

Belle: The Slave Daughter and the Lord Chief Justice

The film version of the mixed race girl raised by the great Lord Mansfield is largely fictional. This is a good account that notes the little we know about the real Belle, mostly informed by Mansfield's story and background around her. A useful enterprise well told for the general reader. From what I can tell, sound history. Intriguing Jane Austen cameo.

More ACA fun

It's July, yeah, both you know ... lower courts. Think Sisyphus at this point.

Rev. Joe -- Religious Instruction

"John Oliver covers the realities of incarceration nation"

They have long form commentary like this on non-satirical shows these days, right?

"Split Ninth Circuit panel stays Arizona execution based on First Amendment (really?!?!) drug secrecy concerns"

Yeah, I don't really buy it either, though think secrecy has due process problems. (More here on challenge overall -- valuable stuff but still don't think the 1A claims work) As to Judge Kozinksi's dissent, the problem is people don't want to "stomach" the firing squad. I'd add it is probably a bit too direct for some people. If we execute, it very well might be better than lethal injection for the condemned. But, various things go into acceptance of a punishment.

Update: The USSC didn't buy it either though multiple justices voiced concerned earlier on other grounds. Meanwhile, a footnote among the summer orders.

The World According to Bob

I'm a cat person, but the added charm to the two (main) "Bob" books is the author's story, including being an addict, homeless and trying to live busking/selling Big Issue papers.

"Crisis Pregnancy Center Ads Are Back — And More Deceptive Than Ever"

One troubling notice is how attempts to provide disclosure have been repeatedly struck down in the courts. I'll accept possible 1A claims and the like if slanted required scripts with at best misleading information included in various cases were dealt like pre-Casey. These groups act like medical providers and warrant more regulations than those that don't.

RIP

Begin Again

strikes so many false notes — painfully obvious clichés, clunky dialogue — that we cannot recommend it wholeheartedly.

Yup. It also is something of a mess -- like an unedited version. It's watchable, the stars (nice to see "Mattie" from True Grit in a small roll) mostly decent, so there's that.

"Life in Prison, With the Remote Possibility of Death"

This analysis discusses a case also analyzed here. The long waits on death row, as I suggested in comments, looks as arbitrary as other things deemed a concern in Furman, but is a product of many parents and reasons, from due process concerns and putting executions on the back burner since the public is okay with a few "The Lottery" type executions.

Appeals court nullifies another same-sex marriage ban [Oklahoma]

Noteworthy concurring opinion on "animus" -- these opinions are mostly only interesting now for wrinkles. Judges overall have tried to avoid "animus" (we aren't meanies!). Understand that. But, the concurring opinion focuses too much on Romer and Lawrence. For instance, Moreno (hippies) dealt with a federal benefit (food stamps), narrower than marriage (itself a collect of things), still struck down law. State amendment here is novel and significant.

Beloved Strangers

Beloved Strangers is a narrative of the author’s own rites of passage, from her childhood in Dhaka to her time as an adult in New England and then New York and then back to Dhaka again.

Perhaps because of her upper class origins, the author's account has a Western tinge that makes it hard at times to recall she is growing up in Bangladesh. The text's tone also feels a bit too affected. But, overall, I liked it. Well written emotional autobiography.

All Star Game

Various complaints. Agree the winner gets home field in World Series deal is silly -- should go by best record. The each team has a representative (Mets got a reserve) is fine for me. It's meant to show the leagues' best players. Should countries pass on the Olympics too?

Fisher challenge on race rejected again

Fisher last year turned out to be something of a whimper on the affirmative action front though its tone was fairly strict. The lower court has upheld the race-based program again. Another case of SCOTUS rulings not being the end of the line. Will it return? Eh.

Our Declaration: A Reading of the Declaration of Independence in Defense of Equality

I have provided a few thoughts on Our Declaration: A Reading of the Declaration of Independence* in Defense of Equality, but will provide a more extended set of remarks here.  First, I will mainly provide a few things that the book does not really touch upon, then some it does.  As the author notes, a "slow reading" approach provides us with much to ponder, and though it helps (and she provides some), insight and meaning is found even without special historical knowledge. This is so even for the "train of abuses," though there is special fact based claims raised.

One thing that is noted by some is that "natural rights" are vague and dubious things, things deemed obvious to some, but not others. This to me does provide a demand for caution as well as making these things"political questions" in many ways. That is, judicial review based on court determinations of "natural rights" alone is somewhat dubious.  OTOH, the concept can provide a helping hand when other things are present, such as precedent and societal practice. Anyway, the document says "We" hold these truths; that is, not just anyone. A certain community.

Others might see things in a somewhat different way. Our own experience is at issue.  The book interprets "self-evident" in an interesting way.  It often is thought to mean "obvious," when some of these things were not. After all, others think different forms of government are best. But, Allen interprets it to be things we can determine for ourselves by use of reason. As a person who studied classic Greek philosophers (including fans of potlucks), this was a good fit for her.  And, here "we," specifically those behind the text as well as those they represented, are doing the reasoning. 

The book spent a lot of time with various words in the document and many chapters with the first sentence, one many skip over to get to what is seen as "the good stuff."  I think she rushes a bit at the end, including the right of the states to have various aspects of sovereignty summed up at the end as "to do all other Acts and Things which Independent States may of right do."  The last part came to mind various times the last few years when our nation was accused of human rights violations. That is, nations "may of right" do a lot of things, but not torture.  The phrasing to me includes a limiting principle, which is also the idea of the document -- sovereigns do not have unlimited power.  They "may of right" not do everything.

The focus on words (e.g., interesting thought "in the Course of human events" -- capitalization in editing -- was a water metaphor well used at the time, seeing our life as like a river flowing) provides some thoughtful reading.  The book does not focus on the to many readers' eyes curious word "unalienable" -- this is a bit strange, since it seems noteworthy to focus on a word of such caliber.  It confuses some since the rights seem "alienable" (slaves had little liberty)  though denial of rights does not mean they are not existent - the problem is that they are being unenforced.

[ETA: The book touches upon the usage of "pursuit of happiness" over "property" somewhat, including John Adams' focus on "happiness," but one other thing it doesn't focus on -- perhaps things like the symbolism of "course" is less familiar to various accounts -- is the aspects of "life," "liberty" and "pursuit of happiness."  The book, as noted by the title, is also particularly about equality though its overall intent is to provide a full interpretation of the document as a whole. But, like other things, there is so much there, and covering everything in a medium size work (many useful photos fill a lot of space) particularly is unlikely to be comprehensive.]

The book doesn't focus too much on the use of "God" in the document, noting that most of the references came from the editors, a reminder that the document was not only from Jefferson's hands (other than the removal of an "abuse" regarding the slave trade, the other major change might be said to be cutting out some overblown, at times sentimental, language). A major criticism of some is the idea the rights come from God. But, she does not find this a major concern -- either the rights are from God/nature or they are matters so important to our happiness that it is unjust to deny them. And, this is at times what "natural" rights amount to, basically, fundamental rights of high importance, not necessarily those handed down from God.

I share this sentiment and along with the realization that specifics will basically be the jobs of positive legislative and societal action to work thru (e.g., there is a basic right of self-government, parliamentary government is working things out as compared to our tripartite system).  Another thing some scorn is that the document has lovely ideas that weren't put into action in various ways. Slavery, you know.  The author, a biracial woman, is realistic about this. She notes that ideas do not override habit and practice all at once, but it can provide an opening. And, it did -- multiple states did begin to end slavery, Massachusetts doing so in the 1780s.  The ideas also are seeds and Alexander Tsesis wrote a good book on how social movements thorough our history (and other nations too -- this book cites how the DOI influenced Indian independence from Britain).  

The footnote notes how a bit of punctuation interrupts the flow of the second sentence that connects rights to government to the validity of starting anew.  The sentence  also is central to the author's five prongs of equality, which is found in various parts of the document, and shows that equality is a necessary part of its principle of liberty.  Equality and liberty are often seen as concepts in conflict, but they can be a key symbiosis too. This is seen in a somewhat related context where due process (including its "liberty" interest) and equal protection is deemed as interlocked:

Equality of treatment and the due process right to demand respect for conduct protected by the substantive guarantee of liberty are linked in important respects, and a decision on the latter point advances both interests. If protected conduct is made criminal and the law which does so remains unexamined for its substantive validity, its stigma might remain even if it were not enforceable as drawn for equal protection reasons. When homosexual conduct is made criminal by the law of the State, that declaration in and of itself is an invitation to subject homosexual persons to discrimination both in the public and in the private spheres. The central holding of Bowers has been brought in question by this case, and it should be addressed. Its continuance as precedent demeans the lives of homosexual persons.

The very first sentence of the DOI brings equality into the field in announcing the "one people" (Allen argues "people" is used in the sense of a "political group" -- left unsaid is the claim by some that this exempts slaves) are arguing a right to "separate and equal station" with other nations (peoples).  The states were claiming equality as a people from domination from others.  Any particular subset?  No, all of them.  I would -- though it isn't unique to me -- cite the Fourteenth Amendment, which speaks of one citizenship.  All persons could be citizens. It isn't a white only deal.

The basic equal freedom from domination is a basic definition of "liberty," one each person has an equal right to on some baseline level. Next, there is an equal right to access to the government to "secure" our rights, going back to that second sentence. Since she does it repeatedly, I guess it only proper here to at least once quote the text we are dealing with here:

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness --That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed, --That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness.

I removed the "extra" period. As she notes, there is a problem when the rich routinely get more protection from the government. The principle of the document used to justify our independence (a form of "memo," using the traditional meaning of that word) provides a more egalitarian duty of government to secure the rights of "all men" (as an aside, the author notes the deleted slave trade section, "men" is used in a way to cover all slaves, that is, collectively -- women have rights too).  This can go to how we should treat something like the proper regulation of campaign funding and other matters.

The third facet of equality discussed is the use of each person to gain the intelligence needed to uphold our liberty.  The DOI notes "the colonies" suffered various abuses, "we" petitioned in face of abuses, "our" connections to Britain is cited etc. The book discussed how the representatives to the Continental Congress actively sought from the people intelligence of the wrongs done against them by the British.  The First Amendment not only provides a right to petition but an implicit obligation for petitions to be honored to the degree at least of an honest hearing.

The next aspect of equality is a sense of reciprocity. The nifty way the book shows how equality is infused throughout the document, not just in the "created equal" phrase is shown here too as is its use of down to earth comparisons the average reader would find relatable.  Here it is that when a friend does something wrong, you would feel it proper to feel wronged, particualarly when the actions suggests lack of equal respect. The DOI:

In every stage of these Oppressions We have Petitioned for Redress in the most humble terms: Our repeated Petitions have been answered only by repeated injury. A Prince whose character is thus marked by every act which may define a Tyrant, is unfit to be the ruler of a free people.

IOW, the colonialists informed the British king and Parliament of what they deemed were injustices done to our people. But, instead of a respectful hearing that honors some basic equality (even if a king in various ways is of special importance, something our ban of titles of nobility addressed),  or ideally some redress, the colonialist just had the worst of it. It is as if you complain to a friend or family member of their rudeness and they laugh at you and demean you, making it as if you should feel bad and be punished.

The final aspect of equality is our shared ownership of public life. The book repeatedly showed how the document and independence as a whole was a group effort. Thomas Jefferson or George Washington alone did not write or create either. Unanimity of all the colonies had been deemed necessary to be obtained among all the states for independence to be declared. The document is of a collective nature -- "We" -- this is seen as well in the Constitution -- "We the People."  Each citizen of age generally (felony disenfranchisement laws continue to be a major problem here) vote, take part in juries and have a right and duty as good citizens to speak out and contribute.  Each person in their own way have a role to play.

The need and abilities of humans from birth (e.g., the intelligence of humans and social abilities as compared to other animals)  provide evidence here that these things are in some fashion a basic nature of our "creation."  It is as she notes an expression of a basic human need and justice warrants protections of rights here, which to me are in effect human creations in some fashion -- that is, to be blunt, I don't think they are a creation of the divine.  Life in nature might provide certain possibilities just as men and women "unite" in some sense, but like "marriage" is in a full sense a human institution, so are "right."  All the same, as a baseline, the DOI provides a pretty decent expression of the basics.

And, the five strands of equality Danielle Allen gathers from the DOI is well expressed as well. Again, I found the book on the whole excellent.

---

* The author argues that the placement of the period (.) after "happiness" in this copy is incorrect, and that though a printer eventually did put it there, it was not faithful to earlier intent. Or, the overall logic of the original extended sentence that connects unalienable rights to government and independence to a government not properly protecting it.

It wrongly promotes a sort of libertarian stand alone principle when the true nature of the idea expressed in more let's say republican governmental in nature.  I think the author has a point though the overall idea is not lost either way.  Governments are created to "secure" our rights and this involves not just "liberty from" but "liberty to," including benefits. Even then, there were minimal welfare measures. Plus courts etc.

One theme of the book is that so many people and groups were involved in production of the document in front of us, which advances the equality theme.  This includes more than a clerk and printer, both of whom were responsibility for the look of the document, including capitalization and punctuation that has some effect. The book does not talk about the fact the publisher here in particular was a woman, that is, give a snapshot of her biography or such.  A bit curious but you can't include everything, I guess.

More Copyright Extremism

Doyle has been dead for 84 years, but because of extensions of copyright terms, ten of his fifty-six short stories continue to be protected from copying. All of the short stories and four novels were published between 1887 and 1927, but all of the collection except ten short stories have entered into the public domain as copyrights expired.

The DOI book didn't quote four lines from a 70+ year old song because of high fees. But, this is even more silly, even without the claim raised. This sort of thing is patently ridiculous.

What? Not at a Chinese Restaurant?

Julianna Lee Goldman and Michael Julian Gottlieb were married Saturday evening at the Pine Creek Cookhouse, a restaurant in Aspen, Colo. Elena Kagan, the United States Supreme Court justice, officiated.

Jewish cubed. I thought justices only married gays!

Trading Christmas

Hallmark has a Xmas special in July thing going. This one was pretty good, played by some pros, including Faith Ford looking pretty good couple decades from Murphy Brown.

Update: The secondary love interest is from the amusing Canadian show Corner Gas.

A bit more on DOI book ...

Many photos and examples that provide a feeling of life in the era (like almanacks or a warning against public meetings against the crown). Also, there is a lot of repetition -- key passages and principles are repeated, a means of remembering and drilling it into you. The word "unalienable" was not really covered or much on just what a "right" means. But, there is more than enough richness as a whole to make it rewarding reading. Good for classes.

Daniel Murphy

Imperfect player -- some head smackers on the base paths but like yesterday's gem, his defensive ability does show enough to belie the "lousy 2B" cred -- but overall someone to root for. Congrats and darn, though I understand it if he goes, wish Murph would stay.

Like this guy ...

Book Quickies

A good review of a book referenced in the past about a survivor of an abusive (qualifier) fundamentalist religion. The blog is in general good reading. A leading hit for a DOI book search aside, I'm reading Our Declaration: A Reading of the Declaration of Independence in Defense of Equality, a few days late. Saw it in the book store and it's a good thought-provoking read geared for all (like DOI). As she notes, she has taught all kinds.

Another Thing Regarding Hobby Lobby ...

SG Verilli seemed a bit out of sorts (wish female employees had amicus time) but did try to explain why accommodations are provided special for certain religious institutions (see, e.g., Brennan's concurrence here). There are reasons why it isn't done for everyone, e.g., it's a limited group made up mostly of fellow believers, not employees more broadly of all faiths, whose religious and associational rights are weighed in the balance with the extra effort.

Update: O'Connor also concurred in the Amos case & this is another case where she might very well have voted differently than Alito. Amazing how even shades of Republican matters.

John Dickinson

He comes off badly in 1776 as an opponent of independence and at least somewhat in John Adams too though his emotional speech on the horrors of what would occur provided a respectful dissent. Think someone from the South c. 1860. Also, overall, some might get an unfair view of his overall career. See, e.g., the "Declaration of the Causes and of the Necessity of Taking Up Arms." JD even was involved in the ratification of the Constitution.

TV Watch

Young & Hungry is a decent time-waster. Re-watching John Adams, I recognize the dramatic license (e.g., his daughter actually got married about a decade previously) but blatant stuff like a treaty being shown to require merely a simple majority is not kewl. And, it passed 20-10 ... no tie-breaker needed! Do we need to create things for John Adams to do?

"More Revelations of a Massive Spying Apparatus"

I'm concerned but the tone at times suggests a level of how shocked we are supposed to be that comes off to me as muy naive. Our own citizens monitored!!! Shocking! Some are even arrested. If you can believe that. And, the recent cell phone ruling might augur tempering, but current law allows some "monitoring" when third parties have the data. And, sorry, still think Snowden was wrong to flee to Russia and worried about how much data he controls.

Senate Dems Ready To Unveil Bill Reversing Hobby Lobby Ruling

The legislation will be sponsored by Sens. Patty Murray (D-WA) and Mark Udall (D-CO). According to a summary reviewed by TPM, it prohibits employers from refusing to provide health services, including contraception, to their employees if required by federal law.

Won't pass, but important to put it on the table, especially for 2014 elections. Might not have time to do it 40x. A more comprehensive amendment should be offered to move the goalposts. And, because it would be good policy.

A Supreme Court Justice Is Appointed

A generally interesting book (bit of a trudge at times) by David Danelski discussing the machinations behind the appointment of Pierce Butler (a few others are touched upon as background). Written in the 1960s, a reminder that such things didn't just arise a few years ago. Are Roberts/Alito involved in judicial nominations to the degree of Taft/Van Devanter?!

A Tejeda Fan, Perhaps

Mets desperate for offense. Cubs have glut at SS. Castro for taking? Local columnist imho reasonably argued that "if" it took Wheeler (sophomore struggles, promises to be a good #2 or #3) and "perhaps" something else, he'd do it. This upset some on Twitter. Asked what it would take then. One reply: "what the market would bear." Really? What an asinine answer.

Congrats Daniel Murphy -- Mets All Stars Rep

With Matt Harvey hurt and David Wright struggling, the lovable Daniel Murphy -- back from his daddy's day event at the White House -- slips in on his offense. His defense is decent if having some bad moments, but uh, not really there for that. One of the few this fan consistently likes to watch, by now a "Met" with some verve, please don't trade him for parts.

Rev. Joe -- Religious Liberty Means Balance

"A Blueprint for Reclaiming Religious Liberty Post-Hobby Lobby."

Welcome!

Staten Island Yankees

One charm of NYC is that you can get a ride on the Staten Island Ferry for free (one of the few things that decreased in price). Went there before watching fireworks and decided to see a game of this "A" ball team. Pitching duel until they lost in the 9th. Got a seat in the front row -- closeup of pitchers warming up. Darn that is loud. Fireworks were okay.

Wheaton College Order: Missing the Point

Update: Tom Goldstein has more confused musings on Breyer's apparent join (I'd agree there -- if he didn't take part, why wouldn't they say? it is a significant order) and the possible value (in his view) of it.  The dissent, e.g., did not say the order firmly "deprived" care -- it "risks" depriving care. This isn't THAT hard.

FWIW, I think Breyer might have thought the order, without more, was something he could live with. If the government could show more evidence, e.g., of "risks" here, maybe he would change his mind. Maybe not.  Don't still much value of him joining in. Wouldn't, given his HL concurrence, Kennedy very well request similar language anyway? And, even a 4-1-4 split would give you the same result there, just four justices who questioned if the coverage actually would be properly supplied. Breyer could have briefly commented to note this.  Sorta sick of the whole thing.

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Prof. Lederman's posts on RFRA and the contraceptives mandate cases are getting a bit out of hand. I think even many law professors at some point will get lost on his extensive discussion on the Wheaton College order. Tom Goldstein, a lawyer if not a professor, disagrees somewhat with the analysis.  And, is himself wrong on a key point in my view:

The dissent’s response in Wheaton College is that “the Court has no business rewriting administrative regulations” and that it is concerned that the Court’s rule may not be “workable or administrative on a national scale.” But it doesn’t otherwise explain its reason for believing that the injunction “risks depriving hundreds of Wheaton’s employees and students of” coverage.

I think the first part is damning enough -- broadly, it is appropriate to leave to the executive department the discretion to write regulations that fit the needs of the statutes and agencies involve. It is not in the skill-set of the courts per se to know all the ins and outs there regarding what is necessary to best advance the ends, including not depriving people contraceptives, including for some period of time.  Still, noting this is an intermediate order, so the dissent won't be as detailed as a final ruling, it did note:

Does the Court intend for HHS to rely on the filing of lawsuits by every entity claiming an exemption, such that the identity of the third-party administrator will emerge in the pleadings or in discovery? Is HHS to undertake the daunting—if not impossible—task of creating database that tracks every employer's insurer or third-party administrator nationwide? And, putting that aside, why wouldn’t Wheaton’s claim be exactly the same under the Court’s newly-fashioned system? Either way, the end result will be that a third-party administrator will provide contraceptive coverage.

How is this not explaining "the risks"?  This is just an example. As I have repeatedly noted, RFRA is not going to only cause concerns in this one area of law.  The extended focus on but one tidbit by Marty Lederman suggests the problems for agencies, lower courts etc., especially when "restoration" of religious freedom means expansion of it, at least for some people in some cases.*  Insubstantial burdens will lead to additional complexities time and time again, often in cases out of the public eye, partially since they don't touch upon the hot button issue of sex related topics.

But, perhaps most importantly, he seems to miss the point of how such hair-splitting on each possible regulation with some "significant burden" (I use quotes advisedly) on religious beliefs is problematic. I think it harms religion particularly.  Some of the responses I have read include comments by those who are no fans of "religion" including various comments with a sort of self-satisfied "I'm an atheist, so I don't buy into that sort of crap" tone.  Religion need not involve belief in God (many follow Jewish or Christian ritual while being nonbelievers in that fashion).

Moving past that, it is a matter of ritual, community and so forth that brings forth many positive things.  Anyway, millions are believers and are basically, shall we say, are not assholes.  A subset are, but that shouldn't be used to smear religion generally. You disrespect many of the liberal community too.  Still, how surprised are we that this occurs? If "religion" is going to come off as greedy and inconsiderate of the needs of others (see also, let's say gun rights where even broadly supported legislation is blocked in Congress), it will be seen as a bad thing.

I guess, as Breyer might assume, the order here is workable and contraceptives will continue to be provided to those in need. I say such things warily, especially if some future administration is involved. To take a for instance, it was only by chance that I determined the health insurance I myself use doesn't provide certain types of family planning. Perhaps because of my sex and lack of a dependent who would use it, but who knows, I was not specifically notified that an alternative was available via the government.  The fact that certain companies only after ACA came along (I'll be nice and assume good faith here) decided that they had religious opposition to ongoing coverage underlines the level of oversight and confusion possible here.

But, big picture, the whole thing is troubling.

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* The level of disconnect and different wavelength thinking here is highlighted by the failure of many apparently to realize that contraceptive (and even abortion) coverage furthers the religious needs of many people. Many mainstream Christian religions, e.g., quite explicitly accept such usage, especially when it would prevent abortions. And, do so, in the context of religious beliefs and practice.  Employee choice in this fashion promotes free exercise principles and avoids religious favoritism.

Sometimes, the claim is that such people are different because they are not being required by the government to do something. But, as suggested before, regulation "secures" liberties in various respects, and those supportive of these claims surely recognize this in regard to state authorized accommodations in non-governmental employment.  Employment is not purely private -- "public" accommodations are involved.  At the end of the day, we are left with hairsplitting. Tiresome.

DOI

We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness.--That to secure these rights, Governments are instituted among Men, deriving their just powers from the consent of the governed

With or without the period, government is clearly in place "to secure" our rights. It is not just a libertarian paradise. A good essay on looking long term regarding the courts.

4th of July ... Huh. It's on the 4th Again

I saw this this in person years ago. Happy 4th! 

Judicial Activism -- More Hobby Lobby Fun!

There is nothing in existing government regulations that allows such a letter instead of the government form, and nothing in those regulations that says such a letter is enough to guarantee access to birth control. But the Court order appears to be, in effect, a rewrite of those regulations.

A little before the holiday fun with a dissent by the women. Yeah, Breyer and Kennedy, that doesn't look bad AT ALL. Sotomayor's "what, another stamp?" bit on how this is "less restrictive" is a nice touch. The hair-splitting makes religion look moronic. That's helpful.

Philomena

I thought the film version -- which centered on the birth mother's trek to find her son with the help of a cynical journalist -- was an enjoyable workmanlike effort. The book overlaps a tad but is (down to the original title regarding the "lost son of") mostly about the remarkable (and tragic) life of her son. Plus, the movie turns out to have lots of dramatic license. The concern for the "trade" of Irish babies early on has current day parallels.

Parade of horribles?

At one point in Hobby Lobby, Justice Alito noted:

It is HHS’s apparent belief that no insurance-coverage mandate would violate RFRA—no matter how significantly it impinges on the religious liberties of employers—that would lead to intolerable consequences. Under HHS’s view, RFRA would permit the Government to require all employers to provide coverage for any medical procedure allowed by law in the jurisdiction in question—for instance, third-trimester abortions or assisted suicide. The owners of many closely held corporations could not in good conscience provide such coverage, and thus HHS would effectively exclude these people from full participation in the economic life of the Nation. RFRA was enacted to prevent such an outcome.

I don't think that is HHS' "apparent belief" -- we can imagine some sort of insurance coverage regime that is blatantly discriminatory one gathers. Note also the previous paragraph notes there is not evidence provided by the government that "any significant number of employers" sought such and such exemption (note it took recent events for some to ask for this one) so maybe some small number doesn't matter on some level. A few closely held corporations, employing thousands, apparently don't, right?

But, let's deal with it. The companies provide salaries now that could be used for that third trimester abortions and assisted suicide. If a teacher in a parochial school privately uses her paycheck to pay for a first trimester abortion I gather Justice Alito thinks the employer can fire her for violating the tenets of the institution. This might be wrong for secular employees like janitors, not that I'm sure he would think that. So, yeah, why not a general rule that insurance coverage is provided (or you get no tax break) and the employee, including those times where the choice might violate the beliefs of corporate ownership, uses it as he or she sees fit to meet medical needs?

There are various reasons to treat third trimesters as different than Plan B. This does not mean that they never should be allowed and even very conservative states allowed them pre-Roe in limited cases. The fact the employer thinks the threat to your life is not severe enough (only "somewhat" severe!) should not generally speaking allow them to deny you the right to use your compensation in this fashion. Tricky end of life decisions bring forth the same principles. Alito's apparent belief notwithstanding.

Religious exemptions are appropriate in our constitutional democracy, at least it was always part of our nation's approach, and even those who don't like religion that much tend to agree to some degree. But, it has to be applied with a certain amount of finesse. Allowing individual employees of for-profit corporations, who get special privileges from the state and in a key fashion are "public" in nature, to use their insurance as their health and religious views deem appropriate is part of that. And, overall, it promotes religious liberty in the process.  Such is my view.

Canada Day

A day late, but there you go. I was watching a War of 1812 documentary (you can too, I did so by DVD) and one nice bit was the use of Canadian historians (along with Native American ones) to give their perspective. In effect, as it did for us "Americans," the war made Canadians believe in themselves -- repeatedly, they joined forces and defended their country.

Other Views on Leading Cases

I did not find his argument at his blog that Hobby Lobby was "not a very important case" (eh with qualifiers -- by now, the "long game" approach is well known, plus Calvinball can avoid "troublesome" language), do mostly agree with his take on Canning. The President's argument was credible and the matter should have been left to the political branches given it was an institutional dispute, each side with a rational approach and means to fight.

A bit more ...

More on the union decision, including the hypocritical half-way protection of government employee speech. Also, in "where have I heard that before" news -- also a free rider problem. Ditto Hobby Lobby (faux minimalism/Kennedy's dubious concurrence); the first half of the case title/"Burwell" btw is the new HHS Secretary.  Meanwhile, the overall saga continues.