"Reverends like us should never oppose access to abortion or sex ed"

And Also: Without Precedent: The Life of Susie Marshall Sharp was an interesting, if somewhat too long, biography of the first woman judge and justice in North Carolina. It in part is to be honored for not shying away from her flaws (e.g., racism and intervening in political matters while on the bench).

People of faith, as well as those with no religious affiliation, have widely varying opinions about moral questions. That’s okay. Freedom for differing views and beliefs is a core American value. The problem is when one particular religious viewpoint gets written into law, in direct violation of our national commitment to religious liberty. Every person in the United States should be able to make decisions according to their own conscience and faith tradition, especially in deeply private matters, such as accessing health care.

An op-ed written by two ministers promotes the end of religious discrimination via a repeal of the Hyde Amendment.

The measure is more popularly seen as a matter of wealth discrimination, an invidious way to deny health care and abortion rights to the nation's poor and less well off.  Prof. John Hart Ely, a liberal critic of Roe (though supporting Casey on precedent grounds at least) saw it that way, believing if abortion was going to be legal, it could not be burdened in this fashion.   Rep. Hyde might have felt this was the best he and Congress could do (he rather abortion be generally banned), but as the dissents noted here, some discretionary spending limits are unconstitutional.

The majority in the last case cited (Harris v. McRae) rejected  the argument that the denial of abortion funding here was invidious religious discrimination, either favoring or disfavoring religion. The free exercise claim fell on standing grounds, but if pressed, there very well could be found many a woman who have an abortion because religious faith compelled them to in a particular case. As Casey later recognized, it is a matter of conscience for which there is a range of views, including religiously guided.  Case law changed here in Oregon v. Smith, but RFRA very well -- if evenly applied -- might get you the same place.

The majority also argued that the law was neutral and did not unconstitutionally favor or burden religion for Establishment Clause purposes.  As with the Free Exercise prong, there was some good evidence that such a First Amendment argument had merit.  At the very least, the "effect" of the law, to cite the then more respected "Lemon Test," was religiously discriminatory. The law favored a greatly disputed matter of religious and moral principle, making comparisons to theft or such off the mark. The op-ed reaffirms this point and it is to me a good framing.

Ronald Dworkin years ago raised a religious freedom argument in this area, noting matters of life and death are particularly likely to raise questions of religious belief.  Some might argue that questions about abortion need not be about "religion" (see, e.g., atheist Nat Hentoff), but it belies the obvious that it is for many a matter of religious debate. And, as I have here over the years, if we go further and look at matters of conscience, it definitely is the case.  As an influential lower court ruling noted:

No doubt in the opinion of many people the nature of a fetus [an embryo] as a human being is a matter of absolute moral certainty. In their view, perhaps in the view of some of the legislators who enacted this statute, abortion is considered the deliberate killing of a human being. We do not doubt the sincerity of those who hold this view, nor minimize the depth of their conviction in this regard. But under the Constitution, their judgment must remain a personal judgment, one that they may follow in their personal lives and seek to persuade others to follow, but a judgment they may not impose upon others by force of law.

Certain things are left to the political process, this is left to personal judgment for various reasons, disputed religious/conscientious belief should not be enough for the government to favor one side over the other.  Ideally.

Happy Birthday -- Lacey Chabert

She had a pretty good run so far on t.v. in various roles. Since it was just on again, again a nod for her excellent portrayal in The Color of Rain, really felt her portrayal of the based on real life character. As noted, the film tones the book down somewhat and adds more complications before the final marriage. HB Lacey!

"NFL: Muslim Player Shouldn't Have Been Penalized For Touchdown Prayer"

Besides the pleasure of a good old-fashioned Pats whipping, a lesson in respect for religious faith might have been learned. Teachable moment as they say.

"District Court embraces as-applied Second Amendment limit on federal felon-in-possession prohibtion"

I think a reasonable liberal would recognize a constitutional right to own firearms (if not the means used in Heller) and found the 5-4 split on the point unfortunate. This would still leave open various limits, including for those convicted of a crime. Nonetheless, and Martha Stewart at times is used as an example, a blanket rule here is overbroad. And, perhaps some common ground can be found here in respect to other fundamental rights such as voting.

"Breaking: Supreme Court, 5-4, Blocks Extension of Early Voting in Ohio: Analysis"

If the 6CA was wrong or not, a 5-4 stay of a voting rights win along predictable lines is just plain misguided at best. It promotes the usual stereotypes/distrust and there simply is no compelling need. Hasen's concerns are likely warranted, anyway, long term. Also, sort of want a written dissent, especially if Hasen is right about the de facto effect of this stay.

UN Women Goodwill Ambassador Emma Watson

Get some sun!

I'm part Italian, so have a bit of color, but as a matter of personal taste don't like actresses etc. who are overly tanned. Too over-processed or something. One person who doesn't have that problem is my junior senator, Sen. Gillibrand, who is of "where the sun doesn't shine" ancestry (rather, Austrian, Scottish, German, and Irish) according to Wikipedia. Hope she gets her Vitamin D -- doesn't look like she's getting it from sunshine!

Sports Sunday

Mets improved by five games and in regards to pitching and a few positions made some promising steps forward this season. They did finish (fwiw) in second place. They still need another bat or two to truly contend. Meanwhile, bad start by NYJ, 0-3 vs. the NFC North. Giants had a good week. Also, Tampa beat Steelers near the buzzer, taking a bit of the bad taste of a whooping by the Falcons. Nats had a no-hitter but no upsets in Game 162.

"The Unrepentant Bootlegger"

Good article and video regarding a convicted founder of an illegal downloading site. On that scale, I accept the government targeting, though question a year and a half in prison. Big picture, changing the copyright model makes sense. There is a way to have most everyone win here if with a bit less thrill. Given his later dissents, this Breyer article is interesting.

"The President’s Legal Authority to Order the Use of Military Force against ISIL"

I think a new AUMF should be passed, but find this argument fairly convincing. Even if it isn't, ISIL is not "any terrorist threat," underlining the "anything goes" argument is both overbroad and gives away the store too much along with the sneering cynicism.

"Social network Ello gets boost after Facebook boots drag queens"

See here as well as the link to further discussion of Facebook's policy regarding posting under your real name. They have a policy where only complaints lead to them checking. Lots of people have fake names there. Seems a compromise is possible such as registering with Facebook -- this would deal with protecting against harassing account owners and the like.

World Contraceptive Day

Is contraception access really STILL an issue? Even if you think such and such a group should not be involved for you know "freedom," or something should find be able to a way to support access for rest. What of their religious freedom? Doesn't quite seem that way. More here.

Phil Hughes: 'Didn't think it was right'

A quirk cost him 500K and he turned down a chance to throw another 1/3 of an inning to get it. Don't think pitching a bit more on three days rest, as it would amount to, will hurt him any. But, can see that he would see it as a bit fake. Guys like him are key for bad teams -- 16-10 is good anywhere, particularly on the Twins. Also, shows it often depends on where you play -- he like others didn't thrive in NYC. Maybe, will be a year thing, but good luck anyways.

"The Supreme Court Has Two Ways to Legalize Gay Marriage. This One Is Better"

I agree with this article that the 10CA opinion is a good way to show same sex marriage should be protected as a part of existing marriage rights. The opinion does a good job explaining the full nature of marriage as compared to the small vision of some people.

Thanks Obama: Eric Holder Edition

Jeter's last home game (the closer even blew a save to give him the chance to have the winning hit) might have overshadowed it, but Holder announced his pending resignation. A few retrospectives suggests he had an overall good term (except on certain "terrorism-related issues") though then there are the assholes. Overall, net advancement of justice.

The Mouse That Saved The West

Some time back, I read the rest of the "Mouse That Roared" series, but didn't realize the author (who wrote lots of books including The Centurion ... you know, of the gospels) wrote a final one shortly before he died in the early '80s. This time it's about the oil crisis and overall still is topical. It has his usual wry style though at times it is too wordy (or is it a chance for the author to made serious asides?). Somewhat thin, but quick and sweet.

Cute

"Obama at UN: The only thing ISIS killers understand is force"

See, e.g., here. Let's grant force is appropriate. To be clear, far from sure what is being done is a great idea. Still not a fan of that line -- seems to dehumanize and is too bloodthirsty. The answer long term is at least force +. We deal with "killers" from time to time and realize this. Think Obama does too, but bloodthirsty seems timely.

"High-profile commentator Dinesh D’Souza gets below-guideline probation sentence for violating federal campaign finance laws"

Didn't catch earlier that the prosecution was related to a Sen. Gillibrand (my senator) challenger. I found Mr. Drake's comment informative and a nice take-down of the somewhat trollish commenter addressed. Added a few of my own comments.

Baseball Philosophy

[click to enlarge] For some playoff wannabes and others.

"reluctantly dissenting"

Michael Dorf cites a case of a lawyer and non-lawyer viewing things differently.  The debate is a bit unclear, but think perhaps the other person might have made an argument regarding international law -- as a matter of principle, wrongful ownership should mean something, even if it is not accepted to be the case as a matter of current law. A sort of natural law argument, perhaps.  What "ought" to be true can eventually influence what "is" true in this area.  The Hawaiian case is interesting either way, with or without reading Sarah Vowell. 

As I noted in the comments, there often is a way the bridge the gap, even if (clarifying my remarks here) there is some gulf (e.g., my comment that there is a way to allow a state to go doesn't totally address the claim the state might have a right to do so).  It's particularly hard at times online, but also hard other times, to try get to a point of agreement.  Arguments often involve a lot of baggage, the core issue clouded.  Personal fights have this problem repeatedly -- one female comedian, e.g., noted the stereotype that men argue a certain thing, women use fights to bring up the kitchen sink.

A related interesting blog entry addressed the lesser known "reluctantly dissenting" opinion though who's really surprised that this apparent take-off of "dubitante" was written by Judge Kozinksi (can Scalia please retire so this man can be nominated? Republicans will probably find him not to their liking, but really, come on).  The dissent finds this is one of the times where law (particularly apparent binding precedent) and justice is so far apart that it is worthy of special note.  After all, can't just recuse yourself every time you have to hand down a really bad decision.* 

The case was a closely decided en banc ruling, but the judge's dilemma will arise eventually in a less divided case.  At times, it will rest on law that affects the young overmatched defendant liable to be in jail for years:

I am dismayed that Sessom's fate-whether he will spend his remaining days in prison, half a century or more caged like an animal-turns on such esoterica.  

Federal habeas rulings, especially given federal legislation in the 1990s to limit habeas relief in lower federal courts (roughly speaking -- my understanding is that the realistically no chance in hell option of direct relief to the USSC is left open), do often turn on such things. Objectively unjust state rulings are left in place because it is not a clear violation of current USSC precedent.  Still, given the nature of law, you will always have some cases that turn on what amount to be fine lines.  We hope that on balance some rough justice will be served, but it's a messy business.

I appreciate what might be called a form of judicial empathy here, mixed with a compulsion to follow judicial duties -- as with the succession matter, there might be a difference between the ethical choice in the system and some total sense of right and wrong.  The "caged like an animal" reference as well -- it is good to remember the inherent cruelty, if not as that term is understood in the Eighth Amendment (or is it the "usual" nature that is okay?), of our penal system.  In the future, likely will be deemed barbaric.

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* The article cites another 9CA judge; the full quote at the link:

"My conscience is a product of the Ten Commandments, the Bill of Rights, the Boy Scout oath, and the Marine Corps Hymn," he said at the time. "If I had to follow my conscience or the law, I would follow my conscience."

When does an appeals court judge particularly really ultimately have to make such a choice?  And, is following USSC precedent, even if it results in injustice (the rub is what that means), a violation of conscience for a judge?  Such judicial ethics questions surely have led to some theorizing.

Crime/Punishment Quickies

Agree with the concerns about the five years given for animal abuse in that case. Seems misguided, even for animal welfare reasons. Also, guess I'm appreciative about serious talk of use of nitrogen gas for executions. If we have a death penalty, should do it the best way possible. Don't think that is going anywhere, but seems a case of taking governing seriously.

Madam Secretary

Denver drawing out their loss meant it began late, so I saw MS on demand. Overall, it has potential, and appreciate the lead and some familiar faces. The conspiracy angle suggested in a subplot is the sort of thing that annoys me, but got to satisfy a certain class. And, the "superSOS" issue addressed in that review is something to watch out for. Worth another look.

Sports Weekend (Autumn Begins Edition)

NYG managed to win, Jets followed up last week's blown game with a continual one of "not quite," an early turnover never completely overcome. Mets somehow (helped by Braves collapse) in second place. Too bad it doesn't mean much. Wild Card race still active. Arizona Cardinals continue their good start. More "not quites" including Denver & Oakland.

Curse of Chucky

This is a sort of serious reboot of the series about the killer doll and it was actually pretty good. Fiona Dourif (the daughter of the voice) has an Emma Stone vibe as the lead here. Still, unlike the first one, the story isn't interesting enough to hold interest. Who cares enough about the other characters after an hour? Ends well. Good commentary.

The Sound of Freedom: Marian Anderson, the Lincoln Memorial, and the Concert That Awakened America

This book is a somewhat rough but the event (note in the video that Justice Black was there) -- 75 years ago -- is a striking social and music moment. D.A.R. blocked black performers at their "Constitution Hall" and the D.C. school system (after controversy) only would only allow her with troublesome conditions. Lemons from lemonade! The book provides a biography (a rich one; not enough provided of her internal life) and shows how this (including her special dignity) was an early civil rights moment that was a preview for what was to come.

"Rice case: purposeful misdirection by team, scant investigation by NFL"

An in depth look. MLB proactively is responding regarding domestic violence. Meanwhile, though many are not thinking about this sort of thing, due process should be part of the overall system. We tend to have short memories and latch on to certain cases, but so be it. This is a moment and let's do the most we can.

"Texas Executes Lisa Coleman, Woman Who Starved Girlfriend's Child"

After the USSC denied cert/a stay, Texas executed the 15th woman so killed by the government since 1976.  She was relatively young at 38 (her mother got a life sentence for her part in the act) and executed for actions from a decade ago.  The failed technical claim and mitigation arguments seem credible to me. The crime was horrible but question the need or justice of a death sentence, even if one allows that for a limited class of crimes.

Serenity

This wound up on one of those channels that no one seems to take much attention to (Ovation) and is a continuation of the short lived but fan fav sci-fi series Firefly. It looks great, but watching it again (I saw it originally in the movies before watching the series), it is surprisingly thin on character. Multiple episodes gives us more there than this two hour film. Also, a later comic provides a different path for Shepherd Book.

Six (or so) Amendments

There are two more speeches by Justice "I'm nearly 100 years old" Stevens up on the USSC website.  One provides an answer to a criticism of his Six Amendments book, another furthers his argument broader campaign finance rules are appropriate.*  Good to see him though these days Justice Ginsburg (and somewhat Sotomayor) seem to be dominating the airwaves. 

I'm wary about many of his proposed amendments though sympathetic about doing something about gerrymandering and current understandings as to immunity and state control over federal matters such as patents in state university presses.  His book even as to them was a bit thin and me personally would think if we are going to amend the Constitution, some other directions might be warranted. His ideas also seem all already possible under the current text, at least given his views of it.

The response to the negative review did lead me to think about what my six amendments would be, partially since they would have about as much of a chance (if not more in one or two cases) passing as his. One might be reflected in Rep. Ellison's right to vote amendment though current doctrine already holds we have a fundamental right to vote.  How the text would apply to felons (especially those serving time on Election Day) would be a major issue. OTOH, the express congressional authority would be important (though Shelby suggests possibly unclear), since states now are held to have fairly broad power over their local elections.

An amendment that broadly provides a right to vote would do what the Equal Protection Clause does with equality or the Cruel and Unusual Clause does with punishments (I'm wary of an ERA or singling out one punishment via an anti-death penalty amendment) -- provide a basic right to all. I might include in my six some sort of anti-gerrymandering amendment ala Stevens.  More alluringly, I would support one that deals with D.C.  No, I don't want it to be a state -- it is too small and as to allotting senators, don't want expand the problematic Senate practice further.  The idea is to require and provide clear authority equal voting rights, including in the House of Representatives, to the population there. This would in part require overruling the limiting rule of the 23A.

The two senator rule also warrants repeal. The disproportional representation by population troubled the likes of Madison back when the differential was much smaller between the most and least populous states.   An argument can be made that Art. V requires each state to agree. But, as was done at least once in the UK (as seen in a case involving fox hunting), the original rule can be amended away and then a new rule put in its place. If the Constitution itself can be ratified with only a supermajority of states when at the time amending the Articles of Confederation required unanimity, it seems somewhat strange that this would not be allowed.

The Constitution, especially after the Bill of Rights, largely involves amendments that alter structural provisions and voting rights. So, it is not overly surprising many of my amendments would deal with such issues. The Constitution in effect blocks certain things such as treating D.C. as a state for purposes of representation (though some argue it can) while the issue of rights is more a matter of clearly establishing things that arguably already exist. Thus, I'm sympathetic to, but don't really think there is a need for an amendment to protect a right to privacy or the like. Somewhat more worthwhile would be something like Stevens' immunity and commandeering amendments, especially given how current doctrine blocks certain things that seem glaringly appropriate. 

OTOH, an amendment to override the Electoral College would be more expressly necessary. The 2000 elections suggest the EC is not totally defanged; the 2004 could have been problematic too if Ohio was closer.  Still, more important -- and having some bipartisan support (Obama's alleged origins complicates things a tad) -- is getting rid of that obsolete Natural Born Citizenship Clause.  There is no good reason that someone who was born in Canada without American citizen (e.g., U.S. citizen parents living abroad at the time) and came here as a baby should be denied a chance to be President.  A general "Presidential amendment" to deal with both would be ideal, but especially the latter.  A tertiary concern might be presidential succession and doing away from making members of Congress the next in line.  That can be done by statute now.

The final amendment that immediately came to mind was something to deal with the modern day administrative state.  No, the administrative state is not unconstitutional or overall unjust. But, its scope and complexity might warrant clear authority that goes beyond the traditional simple tripartite (executive/legislative/judicial) system, especially given many agencies have a mixed flavor. Also, perhaps, legislative vetoes might be appropriate in certain cases, even contra to current case law. Don't think we needed a separate amendment to authorize a federal income tax, but it did provide a clear authority, minus some outlier types. Same here.

So, roughly speaking, my six amendments (with a seventh):

1.   Repeal Natural Born Citizen Clause (etc.)
2.   D.C. Amendment
3.   Override Two Senator Rule  (might require two steps)
4.   Voting Rights Amendment
5.   Anti-Gerrymandering (and/or other electoral issues)
6.   Agencies 
7.   Privacy, Immunity etc.

Various other things can be imagined, including some sort of positive rights that also might clarify federal powers (e.g., health care).  If we are going to tinker with the Senate, we can also imagine altering its duties (it is unclear that it should have the veto over all matters it has now -- perhaps it should have limited functions) or things like the filibuster.  Being real creative, if people want the Senate to be there to "warm the milk" on the saucer, to allude to a supposed early sentiment, we can tinker how its done.  The current policy of leaving that to a set-up providing special power to thinly populated conservative states (as compared, e.g., to a more evenly divided Senate but retaining a supermajority requirement) is not necessary.

Will any of this come to pass? Well, time will tell. I think #1 has a reasonable chance of passing in the future. Dealing with D.C. somehow, including forming a district for a Maryland representative seems somewhat possible, though it is more problematic given the partisan concerns (one failed compromise did give Utah an addition member).  One of the others, or a totally different one might arise in the future, perhaps because of an emergency or unexpected event.  We are due, the 27A being a joker, the last one forty years ago. 

Don't expect a book any time soon though.

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* I have somewhat different views on campaign finance than him, but am open to arguments that more regulations are warranted in various cases. The thing that struck me here is seen in this comment:

An Alabama citizen has no right to participate in the election of political leaders who will govern in Hawaii, Minnesota or Utah.

That's sloppy phrasing. Such a person does not have a right to vote in out of state elections, yes, but they to me have a right to "participate" in various respects. They have the right, e.g., to hand out pamphlets or take part in a campaign, even if the person isn't a resident, right?

Comparing donating to a campaign in another state (maybe right next door) and a foreigner doing so also is a bit off -- fellow states are interconnected and foreigners more appropriately regulated more than Stevens suggests. 

“Everything You Need to Know About the CIA Torture Report in Under 4 Minutes"

More here.

Foreign Letters

The DVD provides the original short and an interview with the two who inspired this touching and well done film about two immigrant girls from different lands befriending each other.

"Happy Birthday to our Flexible, Popular Constitution"

The point is not about how courts should interpret the Constitution, but that as the composition of the People have changed, so too has their conception of the Constitution and what it means. In practice, among Americans, the meaning of the document itself changes and grows to accommodate changes in life and politics.

Good discussion (I inserted the link found in the original to a good reply to a supporter of "popular constitutionalism" vs. the courts, in part noting the courts continue to be influenced by just that) using the ACS sentiment that I share and reflects the general trend of Justice Souter's remarks posted yesterday. Originalism argues that it is the path to legitimacy. There is a compelling argument that the above view is the true path, especially in regard to self-government -- the Constitution gives "we the people" today the power and responsibility to interpret the document.

When the words were written, they unmistakably excluded African Americans, Asians, Native Americans and women, and they were intended to have that effect, evidently, for so long as the Framers’ posterity trod the earth. 

It is true enough that the "republic was white and male, by text, tradition, and canonical statute" in various respects, but putting aside the room left for advancement (a logical thing for the age of reason -- Jefferson as I recall even left open that his view on blacks would change with more data), this is a tad exaggerated. Women, e.g., was seen to have a role as "republican mothers" to educate children and serve as helpmates for their husbands. This would provide significance influence. Besides, non-slave women were counted fully for taxes and representatives, had rights comparable to men when arrested and so forth.  The room for advancement is a particular charm of the Constitution, a reason it retains popularity.

It is noted that the document has many offensive measures,* but they repeatedly reflected society at the time, while having others that the "outs" could use for their advancement. The link provided above, e.g., noted blacks as a whole did not share the beliefs of certain "progressives" in the early part of the 20th Century to downplay rights. Blacks had no immediate likelihood of gaining much political power and saw a need for things that needed to be protected and protected with a certain sacred character, from majority will.  Rights were not mere impediments, even if they might at times be used badly. The right (ha) thing to do was to convince society and/or certain institutions thereof (e.g., the courts) of how to do it.

It's useful to study history (I myself did formally and informally), including the original and historical understanding of various constitutional doctrines. This can often get you to liberal destinations, especially if you play your hand the right way (the prime example might be Brown v. Bd.) since there often isn't one clear path.  But, ultimately, we ourselves today have to apply things. This applies to religion (so debates over, e.g., what Jesus says about homosexuality to me are dubious on more than one level) and this too.

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* It is noted, e.g., technically the Fugitive Slave Clause is still active since that the 13A does allow involuntary servitude for those duly convicted of a crime.  The 13A would guard against any sort of illegitimate slavery or involuntary servitude but "service or labor" might mean more.

BTW, looking at a pocket Constitution, it is spelled "Labour" though not in all locations.  Capitalization for some hyper-concerned types might matter given what that might imply. Noted a little while back, I believe, some of the capitalization in the Declaration of Independence is a result of editing done by the publishers. The original Constitution's phrasing was greatly influenced by the Committee of Style and Arrangement, whose edited draft largely given the lateness of the day is mostly what we have today. It is unclear how much the exact wording should matter as compared to the overall material they worked with but said wording is given special value. This includes splitting hairs on the importance of certain words and at times punctuation (e.g., the Tax Clause or the 2A). 

Is it also notable that the original text of this clause had British spelling?! 

Badass lessons from Sen. Gillibrand

Good article. Sen. Gillibrand has the chops to be a good politician and one who I can believe in as a good public servant. Wonder where she will be in a few years.

Constitution Day

Text and commentary provided here.

Booze Alert

I'm not much of a drinker of alcoholic beverages though enjoy them from time to time. One thing that I am finding enjoyable is mixing some red wine (white doesn't seem to work as well) with fruit juice. The $2.99 Trader Joe's is pretty good for this purpose.

Sports Monday (Marlins Screw Mets for Nth Time Edition)

Colts blew it -- not quite as badly as the Mets, but they were on the way to at least going up 10 with five minutes to go, but turnover, score etc.  Mets young ace strikes out eight to start game, tying MLB record, but pitcher gets hit. Only score two, DeGrom gives up three in seventh, but Mets tie and go ahead. Only to blow it.

Democratic Shift in the Lower Courts

Though the Obama administration was well on its way to leaving a lasting liberal legacy on the federal bench before Senate Democrats curbed the filibuster’s power, the rules change sped up the confirmation process. Today, the number of circuit judges appointed by Republican presidents is 77, compared with 95 by Democratic presidents, according to statistics kept by Russell R. Wheeler of the Brookings Institution.

A NYT article provides some analysis of the swing in the federal courts after six years of a Democratic President, perhaps helped by the graying of judges from twelve years of Reagan/Bush.

In part, it noted that though Obama spend less time and capital early on, hard Republican opposition did lead to more liberal picks and additional effort. The biggest move, something still sadly mostly inside baseball, was the end of the filibuster for executive appointments. Something many probably would have been surprised was in place and likely opposed to overall. Who knows as to the latter. The article does show the importance of those in power, both in the Senate and White House, in respect to the personnel on the federal courts.  And, since that is surely not fungible....

I have been talking about this online (and in a couple letters to the editors) at least since the early days of the Bush Administration. It is somewhat reassuring to watch things swing though it does mean eventually it will swing back.  How that will work out might be the rub. Anyway, putting aside the importance of retaining the Senate, this underlines that the courts do have some electoral accountability.  We vote for those who put them in. This provides an important influence on how the law develops long term. In his Cooper Union speech Lincoln said this:

When this obvious mistake of the Judges shall be brought to their notice, is it not reasonable to expect that they will withdraw the mistaken statement, and reconsider the conclusion based upon it?

It is more reasonable to assume that Republicans would have put in new judges who would so reconsider.  The flexibility of the situation in this and other areas was a major reason why the slave power (to use the Republicans' term) was so concerned about the new party gaining power. The meaning of the Constitution and the law in general appeared rather clear to both sides. The ultimate result depended and depends on who is there to apply it. 

"Living" Constitutionalism indeed.

SF Resolution AGAINST Sex Specific Abortion Bans

Good article, the resolution specifically concerned about how they "encourage racial profiling of women by some medical providers." A report show such bans often rest on myths. Ultimately, what is next? Bans on not marrying people because of their race? The reproductive liberty choice is the woman's, even if they make a "bad" one. But, a lot wrong here.

Sunlight Jr. [spoiler]

As noted in this review, did catch it on cable. Hard to watch this downbeat film of a couple living on the margins. Both are flawed, but truly seem to care for each other. That's something, down to the last. Did ff some, but Naomi Watts (revealing more than emotions) and Matt Dillon both are very good. A label is a spoiler -- that was done well too.

Sports Sunday

Mets continue to struggle against elite team; NYG struggle against good team with back-up QB by beating themselves.  Jets dominating GB early.  Upset of 1 P.M. -- Browns over Saints. Update: NYJ turnover near goal line, GB drive length of field & keep scoring. Stop scoring & NYJ can't manage anything. NYJ blow game real good. KC 0-2. Nothing much else.

Update: SF blew a 17-0 lead on SNF vs Bears, so there's that.

Need a Fair and Consistent Process To Deal With Domestic Violence etc. in Sports

A person here cynically notes unless you are caught on tape, punishment for domestic violence is liable to rest on how good of a player you are. I wonder how that applies to Adrian Peterson. I provided the below (here somewhat edited) as a comment.

Reference is made that the NFL is a violent game and this will be translated. Sure. And, war is a violent thing & this will be translated. I also think being a prison guard is likely to screw up with many a brain.  In all cases, the violence is being applied in a more organized and tempered way than might be the case otherwise, plus "everyone" is not going to just go crazy or beat their spouses etc.  Still, statistically, there is likely to more of a problem, particularly given the sort of person sought out here.

But, again, there are lines to be drawn. I think it’s possible, at least likely, to have some or even all of these things and be able set certain boundaries. No, one person is not to blame here writ large.  But, [reference to firing the commissioner] he’s representative and like firing a manager on a team doing bad, it can send a message to all & be a symbol for the future. So, there is an argument to fire a commissioner etc. here. More so if he lied or otherwise is shown to do something to particularly warrant it.

I know few care as to Ray Rice specifically, but am wary about the arbitrary nature of the punishments here as a matter of simple due process. Some video is found. It looks “obvious” that the person is guilty. But, in a neutral court of law, the person gets a mild penalty. The pressure leads, again somewhat arbitrarily, to the person being removed from the team and kept out of football indefinitely. There needs to be a clear system set up here with some safeguards. One can compare A-Rod and him playing as the matter was appealed. The fact some around here [cite to a hobbyhorse of a LGM contributor] him put him out as some sort of victim of the process is notable.

Or, is it really just that they don’t like the drug policy and due process isn’t really the point? I think the latter myself is probably the case for some. So, set out wrongs (domestic violence, harm to children, whatever), a process — even if criminal prosecution is not obtained in various cases — to follow & apply it consistently.

Lucy and the Football Again?

I expected the Mets, once two big contracts were off the books, to sign at least one more player last off season. But, with a bit of late season life, they have a real shot at the almost .500 record I said beforehand would do it. With multiple young players showing a bright future, somewhat optimistic. Time shows warrants to be guarded. But ...

Off the Sidelines

I supported her in '09 and time has shown Sen. Gillibrand is an asset to the state and Senate. Picked up her new autobiography/advice to women to "raise your voice, change the world," having it personally signed in the process. It is an engaging read, including to get a feel on her life and work. A somewhat surprising number of "fucks." It focuses on women, but as the blurb from Connie Britton says, men should read it too. Much of its lessons, let's say on mentors/sponsors, are general along with focus on women specifically.

Proposed Amendment to 1A Fails

See here.  As noted in comments, it was done via a filibuster, even though a straight up/down vote would likely fail too given the supermajority requirement (here actually explicitly stated).  Another person, who apparently is some sort of legislative power expert given other writings, first got the point wrong. Then, fatuously wondered why. As if it isn't clear that it is a way to block without actually having clear responsibility.  Or, maybe they are just so used to doing it that way. Opposed filibuster reform too. Shocker that.

Missouri Legislature Overrides Governor’s Veto of Forced 72-Hour Waiting Period

A professor for the sake of argument took somewhat seriously the argument that barring same sex marriage has a "rational basis" to (as his wife does as well at that blog etc.) to provide a professorial discussion on why it still isn't reasonable. Some regular commentator provided his usual "he realizes his argument is weak, right" replies. Tossed in a "judges are just ideologically deciding things" kicker.

I replied, trying to hold back my distaste. At some point, this is just too much -- the bans are not reasonable. Please, let us stop pretending it is reasonable to rest on the conceit that marriage is about one thing and then that some only serious if you try real hard "accidental procreation" or whatever rationale is the reason you are blocking same sex marriage. It isn't. It's a lie. You are blocking it out of distaste and/or a basic belief that same sex couples don't deserve the same basic rights as the rest of society.

It is somewhat helpful to reason these things out, but at some point, it is just annoying. There is some sort of blindness there. I know this will happen. I have been talking about same sex marriage and ending bans on homosexuals in the military from the 1990s. Joseph Steffan was one person I remember reading about in regard to the latter.  Felt then as now that it was a basic principle of equality at stake.  That denying equal rights, at least in regard to something like not criminalizing a same sex blow job is patently obviously something to protect. But, as we know, that didn't happen nation-wide until 2003 in Lawrence v. Texas.

As with any medical procedure, the State may enact regulations to further the health or safety of a woman seeking an abortion, but may not impose unnecessary health regulations that present a substantial obstacle to a woman seeking an abortion.

The Casey plurality also held the 24 hour waiting period at issue was "troubling in some respects" but that a "substantial obstacle" was not shown by the District judge (maybe because earlier precedent didn't require that here).  Of course, Justice Stevens (and Blackmun) was correct that such waiting periods were based on "outmoded and unacceptable assumptions about the decision making capacity of women." When we are dealing, like in Missouri, which is shocking on some level since you'd think it wasn't quite Mississippi or something, a state with one clinic, a fair reading of the facts can very well provide evidence of such a substantial obstacle.

People have some right to get the level of disdain warranted for claims against same sex marriage when it is determined a 24 hour waiting period is not enough. No, you need two more days. To quote:

Under Missouri law, women are already required to make two visits and an abortion provider wait at least 24 hours before having an abortion. The average distance a woman in the state travels for abortion care is nearly 100 miles to and from the state’s only abortion provider, according to Planned Parenthood. One in ten travel more than 300 miles for a safe and legal abortion.

This gets into the territory of other states where clinic regulations, repeatedly targeting singular clinics, are so "unnecessary" and provide such "a substantial obstacle," some judges are saying "enough!" When you already have a waiting period and one burdensome as is, going further is gratuitous. The political messaging involved here is in part shown that the legislature overrode the governor's veto.  As with gays, the problem is only highlighted when you look at the full picture. Glad some in the state realize it is b.s. and there is some strong public reactions against it.

And, since some sort of constitutional right is involved here, b.s. can only be taken so far. Too far thanks to Casey, but take what you can get. And, again, elections matters -- veto override.

(USSC) Courtroom Hearing Loop

In the likely only known to insiders and website nerds USSC press release section, like the speeches and media advisories, a rarely used "public information" resource, the subject was recently announced. SCOTUSBlog, without linking to the release, adds some more detail.

Questioning Darwin

That's a pretty impressive account of creation, and for me it highlights the biggest failure of Questioning Darwin: the lack of acknowledgement that science is, for some, perhaps the greatest evidence of God's magnificent power.

A good point from "U.S. Catholic" in response to a documentary that I passed on the t.v. recently. People for or against "religion" etc. sometimes seem rather sadly limited minded about things. Sen. Gillibrand, e.g., said in her book that feeling God wanted her to do more was a key reason why she ran for office. She isn't some right wing nut.

"Democracy’s Failure"

Let’s hope come November, Congress finds its spine.

Yes, "call me naïve," indeed. I too think applying AUMF 2001 to ISIL is dubious, even if it is not "anything goes." (As to the region, somewhat closer to mark.) But, since I don't think he is St. Obama, it is ultimately Congress' responsibility here. If House Republicans (who want to give the executive more power at times than he purports to have in this area) doesn't care, of course things don't look good. As to the speech, I'm with Rachel Maddow, and thinking ultimately, long term, bombing won't be the answer. Some ideas.

"Former High-Ranking Employee Sues Mets For Sexual Discrimination"

Sort of an extended bit of "slut" shaming. Team ownership continues to shine. Sen. Gillibrand in her new book argues gender equality has a long way to go. This sort of thing helps make her case. BTW, saw her in a recent appearance -- energetic rising star who has been in the forefront on key issues. Her new book starts off well too.

"Why I Stayed in an Abusive Marriage for Two Years"

Lawrence O'Donnell suggested the Ray Rice news would be a means to put front and center the domestic violence problem. That is a value of such news stories -- issues are personalized, which is the way we often truly care and learn about them. Meanwhile, check out this account of someone who suffered from it, including why we cannot simply let victims tell us "stay out of it!" And, we need a way to carefully deal with these things in sports, including a chance for all to be heard. This was handled in a slipshod fashion.

Missouri executes Earl Ringo Jr.

Buzzfeed (as it does on same sex marriage) helpfully provides court opinions and orders involved here, including four justices stating they would have granted a stay.  I have my suspicions, but don't know what current law demands here specifically.  I am upset that the dissenting justices again said nothing substantive. At this point, more is warranted.

Janay Rice Speaks Out

One clearly feels sympathy for the woman (did she really think this would remain private?), but assault is a criminal act. It is not just a private wrong (and it is). With apologies, you might not be his one and only for all time. Plus, if you don't stop it, it will enable others. This also shows that it isn't just about winning though we can be cynical about p.r. moves.

Late Nite Football

The late game -- half time was almost midnight EST -- was another up/down affair, if with less points. The final score is 18-17, SD blowing an eleven point lead & hurt by a field goal squeezed in before the half after an interception in the final 1/2 minute. Arizona was lucky their two failed deuces didn't bite them in the end, the first pretty early. Rooting for AZ.

NY Primary Day

And Also: Some exciting games as NFL season begins, though many blown early leads (Brown coming back from 24 down only to lose at the buzzer by three perhaps hardest), Jets doing okay, Giants sorta embarrassed.  Guess the Rice news overwhelms all.

Update: Not surprisingly, all three lost, getting in the neighborhood of 40% of the vote in each case (with a third candidate helping, ZT might have received closer to 35%). Notable figures, I guess, especially for the two newbies running and the usual uncompetitive local races. As to the affect of Cuomo's national potential, maybe, but not sure especially with Clinton, what his national cases were anyway. 

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Today's a somewhat atypical NY primary day in that there are multiple serious races in my sleepy district though likely at best one upset (helps the lieutenant governor has few duties other than Dave Barry's old line about wearing a suit and checking to see if the governor is still alive ... or not getting into trouble with prostitutes).  No problems at the empty polls (once I had to fill in a paper ballot, but have simply not had problems voting over the years)  and received a "I vote" sticker.  No more lever machines.

Primaries are a chance to push candidates to the left/right, Andrew Cuomo promising, e.g., to be more progressive to get the Working Families Party line.  They provide means to send messages and at times even knock people off (a local pol was just last year). Cuomo has gotten in trouble for problems with an anti-corruption panel and for generally not being liked in part because along with same sex marriage and gun control, he supported some more conservative things like fracking and financial matters. The tax free commercials I see promotion business in NY these days are a bit weird.  And, generally speaking he rubs people the wrong way.

Zephyr Teachout, a local professor and campaign finance activity, does not just have a name that sounds like a character in a sci fi movie, is clearly the progressive choice. The lieutenant governor choice, Timothy Wu, on a separate line so might win over the not too well known conservative leaning Democrat Cuomo pick, is an expert on net neutrality and other things.  Finally, we have Oliver Koppell, a long term local pol, running for state senate over Jeff Klein, who threw with the Republicans to cement their control when again in a span of years it was almost evenly divided.

Meanwhile, a constitutional amendment to deal with Citizens United advanced in the U.S. Senate. There is value in lost causes, and this won't get the supermajority necessary to advance when the big vote is taken, so it being a loser is not necessarily a bad thing.  I'm with election law expert Richard Hasen that there are better and more useful in the long run ways to address campaign finance reform.  As to the text, the Congress and states already have power to regulate in this area but the "political equality" reference does address something the USSC repeatedly found a problem. OTOH,  what the freedom of the press section will stop is unclear and just what "appropriate" means (see current 14A/15A law such as Shelby  overriding clear text via vague underlining constitutional principles.).

I'm wary, but it seems somewhat "eh" since it won't pass.

Wadjda

The teacher in this charming Saudi film, directed by a woman, is interviewed here.  It is rather surprising this film got made. The young lead (new actress) is amazing.

RIP Lillian Gobitas

In 1940, in a ruling where her last name was misspelled, the USSC (8-1) upheld the requirement that young Lillian Gobitas pledge allegiance to the flag, even though it was against her religious beliefs. The one dissenter was influenced by his time hearing conscientious objector claims during WWI. He specifically was concerned on the effects -- it "operates" here against a mostly powerless minority.  She herself went to a religious school and later married a fellow Jehovah Witness, one who spent time in a concentration camp (such a bland word) for not properly saluting Nazi symbols. 

Though you might not know it from Justice Scalia's citation of the case in Oregon v. Smith, the USSC quickly overturned the ruling (6-3) within three years. Scalia quoted the Gobitis ruling while citing Barnette later only part of a string of cases to show that free exercise as to action alone could not trump a law not itself talking a specific religious group. Justice Jackson did highlight freedom of belief, framing the balance this way:

The freedom asserted by these appellees does not bring them into collision with rights asserted by any other individual. It is such conflicts which most frequently require intervention of the State to determine where the rights of one end and those of another begin. But the refusal of these persons to participate in the ceremony does not interfere with or deny rights of others to do so. Nor is there any question in this case that their behavior is peaceable and orderly. The sole conflict is between authority and rights of the individual. The State asserts power to condition access to public education on making a prescribed sign and profession and at the same time to coerce attendance by punishing both parent and child. The latter stand on a right of self-determination in matters that touch individual opinion and personal attitude.

I would quickly compare this non-interference with the claim, e.g., that an employer can deny coverage to an employee. But, as we know RFRA was not really about "restoration" to former doctrine, even if one might be confused by its name and think that. A forced pledge (recall this was before "under God" was in there) would be an act of coercion that seems to be a clear case (though it was not a few years earlier) of breaching "free exercise" though the claim was that this "ceremony" (telling name?) was not meant to be religious, so it wasn't a forced religious act but one of various duties that might in some fashion conflict with a religious belief.  It was a legitimate and important patriotic exercise (immigrant Justice Frankfurter saw special importance in such civic exercises). Like saying "under God"?

The main opinion did not seem to separate free exercise actions (and pledging is an act) from belief as clear as Oregon v. Smith suggested.  Three justices as well as the court below also expressly partially relied on a firm free exercise argument.  The court below was a particularly interesting bit of USSC vote counting, combining three justices expressly changing their mind in a separate statement, the one dissenter and another case where the Gobitis ruling was distinguished. Unlike current treatment of Baker v. Nelson, a decades old summary dismissal, this treatment of a  two year old case was somewhat dubious.  The opinion noted:

It is true that decisions are but evidences of the law and not the law itself; but the decisions of the Supreme Court must be accepted by the lower courts as binding upon them if any orderly administration of justice is to be attained. The developments with respect to the Gobitis case, however, are such that we do not feel that it is incumbent upon us to accept it as binding authority.

The lower court opinion, as did an earlier USSC ruling, also noted that free exercise was not mere belief:

The right of religious freedom embraces not only the right to worship God according to the dictates of one's conscience, but also the right "to do, or forbear to do, any act, for conscience sake, the doing or forbearing of which, is not prejudicial to the public weal."

Quoting an old state case that seems to provide a well cited definition of the freedom of conscience, one somewhat vague -- what does "prejudicial to the public weal" mean, for instance?  A judgement call. The case cited is interesting - it involves a juror who voiced an inability for religious reasons to find a person guilty of murder if the punishment was death.  The judge accepted the prosecutor's challenge for cause and the juror was excused.  On appeal, this was upheld, the religious beliefs here seen as "prejudicial to the public weal."  The judge cited by the Barnette court in fact dissented, arguing that the juror's beliefs wasn't prejudicial for or against the accused specifically, but only "abstract" in nature. 

The ultimate Barnette ruling was decided after many attacks on Jehovah Witnesses and our entering WWII plus more concerns over how we stood vis-a-vis the Nazis regarding freedom of conscience and other matters (see, e.g., the Skinner case regarding sterilization of certain classes of people). Such events did not change Justice Frankfurter's mind as to the Barnette case (this makes him accepting striking down the provision in Skinner of special note), even though as he emotionally noted in his dissent one might think he could particularly relate to the religious minority here and decide otherwise.  Again, these things are judgment calls, with some dissent.

An obituary provides a chance to remember the personal stories behind such overall debates. The twelve year old that is fairly popular in school, but has to leave because she believes the wrong thing. The child who is questioning of his or her sexuality and is teased or worse. The person who desires to be a notary but cannot without violating his conscience because of a test oath.  And, any number of other scenarios. The people deal with the issue, but as it is addressed, they also continue living.  Hopefully, long and happy lives, which seems to be the case here. 

A word more on the freedom of conscience and belief. The pledge seems a pretty easy case for a range of reasons, including because a school child is involved, an act is forced upon the person (cf. an adult not being able to use peyote), the apparently trivial burdens involved in an exemption and the thin line here between belief and action. Hobby Lobby et. al. shows there are harder cases.  Barnette is rightly seen as a constitutional highlight, but just how far it should be taken is another question. 

It might be useful to try to put aside somewhat the "easy" cases. It is somewhat telling that the primary free exercise case one recalls where the litigants won where a "neutral"* law is involved was Wisconsin v. Yoder, the Amish school case.  There might be something to viewing this as a bit of a "hybrid," of a piece with Meyer and Pierce, other cases involving parental discretion over childhood educational choices. When children are involved, it is seen as particularly sensitive for Establishment Clause purposes.  Discretion over religious education is important generally speaking.

Note also that the pledge is labeled a sort of  "ceremony" -- this too opens up a special situation. The concurring justices noted the connection to forbid test oaths -- a major controversy in colonial days and in England before there even were colonies was the need to say certain oaths that clashed with some people's conscientious beliefs. This was also an issue back in Roman times, when Christians could not conscientiously swear pagan oaths in honor of the emperor. There too patriotism was cited.

It's somewhat tangential to the immediate problem, but "acts" with a "ceremonial" character also provide perhaps an "easier" free exercise problem. For instance, a marriage ceremony -- I have repeatedly noted that I believe that it is partially a free exercise problem if you do not allow ULC or other "Internet ministers" to preside over weddings while allowing other clergy members. We are talking here about a special ceremonial act with religious significance where -- going back to the quote from the USSC -- the act is much more private in nature than public.  Marriage is a personal right, if one with obvious public significance.


In this fashion, Scalia's "hybrid" rights in Oregon v. Smith need not merely be seen as a makeweight way to deal with troublesome precedent, which very well might be how he saw it, but a sensible Breyer-esque balancing.  Freedom of religion involves both belief and action.  The latter cannot be absolute, but does exist -- however tricky the line drawing might be.

[ETA: The peyote "ceremony" at issue in Oregon v. Smith  is a tricky business. It is a step beyond a marriage ceremony which is a form of religious speech & association, but does have a personal sacramental character.  Justice Souter noted that hybrids were involved here too.  He also has something to say about de facto neutrality.  If that is going to be the test, to me it needs to be applied stronger than implied by Smith -- Gobitis' dissent concern for what is done in "operation" comes to mind.

The attempt in a later case to distinguish the case as one dealing with "outward physical acts" when it involved a religious ceremony that seems pretty internal is also somewhat dubious. Sexual acts would be another case where physical actions are an important part of association and related liberties. The fact drug counselors were involved does seem a reasonable way to narrowly rule there. The drug trade and the effects on others of drugs also is a way to differentiate.  Still, at least policy-wise, the peyote exemption etc. is a reasonable way to protect religious exercise here.] 

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* Just how "neutral" a law might be, especially when it is the product of assumed norms, is complicated.  Still, the term has some value, even if unintended bias or de facto non-neutrality can be shown.  Some sorts of legal or other realism find neutrality a fiction, but that is overcompensating.

Guest Preacher: Rev. Bucky

[click to enlarge]

End of An Era

The Internet has changed my reading and viewing habits in various ways. It, along with satellite/cable television, has helped to make going to the movies less of a unique event. (It isn't the only thing, probably, but it helps.) Also, I read less books in part because I read and spend so much time online. Finally, a couple annual purchases was affected. Do not feel a similar need to by the World Almanack and haven't bought Leonard Maltin's movie guide for a few years. IMDB and others sites provided a means to address my review habit plus provide a way to answer the periennel question -- "hey, I know that guy ... I wonder if he is still alive."

Turns out such Internet habits has led his movie guide to be seen as somewhat obsolete and this is the last version. With handhelds, people can quickly go online to access info that he had conveniently provided in book form. Back in the day, the book was also a t.v. movie guide -- unlike a four star system, they were classed as above average/average/below average. The influx of new movies led to the t.v. movies basically to be removed.  It seems, it has been a few years, he finally decided he had to take out the listing of actors and directors too.  Seems dubious -- those pages has an importance of special value worth keeping.  He also started a classic movie guide as well.

The book is older than I am. So, had a good run.  Still, a bit sad. So, The Fault in Our Stars won't be in a Leonard Maltin Movie Guide. Enjoyed the movie though it seemed a bit too polish -- the teens a bit too glossy, though they were average enough looking. Read the book. Except for minor things (Hazel's friend is not in the film), it is extremely akin to the movie until the funeral. Some there and after is found in the film too, but think the more compact film version works better. The book is pretty good -- can see the appeal among teenagers -- and it's quick reading.

At times, perhaps because it was really a repeat for me, early on I was not deeply moved or anything by the prose etc., but worthwhile. It also had the "if this was fiction, this would happen" conceit though it was honest enough to be of the sort to see the irony. Think I liked Forever Changes (lacks the romance angle) better on the teen with a deadly disease front. Both in fact are male writers (both also use some math metaphors, the girl in FC a math wiz) writing in the voice of teenage girls. This is not creepy at all, of course -- it is what authors do.

Oklahoma releases extensive report concerning problems with Lockett execution

I have a comment here. I read in Color of Rain about a woman dying and she had that "snoring" thing going. Don't know if he suffered more. Ultimately, they screwed up.

"Ex-Virginia governor, wife found guilty on corruption charges"

Another one bites the dust. Seems to been a noticeable number of corruption convictions in the last few years. There is a lot of cynicism on the state of politics these days but even with current campaign finance law etc., restraints are present apparently.

Federal Judge Upholds LA Ban on Same Sex Unions

Update: I inserted a brief comment on the 7CA opinion -- which at the end of the day is likely much more important than this thing -- in the text.

So, other than an obscure state district court judge who didn't want to deal with recognizing the right for same sex couples to marry and basically punted with a seven page opinion (footnote link not provided), it finally happened -- a post-Windsor (federal district court) ruling rejecting such a claim. It is by a Reagan appointee though I'd note Ted Olson was too (if not a judge) as is Posner et. al. Might be useful to look at it.

These consolidated cases challenge the constitutionality of Louisiana's ban on same-sex marriage and its choice not to recognize same-sex marriages that are lawful in other states.

So, you have a double claim, one broader than the other.  Likewise, this is not a simple law (see, e.g., Hawaii or previously NY), but a state constitutional amendment. One that reaches a "legal status identical to or substantially similar to that of marriage for unmarried individuals shall not be valid or recognized," which -- and this should really be underlined -- makes this more than a same sex marriage case.  Going by Wikipedia, only New Orleans provides extended health benefits to partners.  So, we have an extended barrier on same sex couples placed in the state constitution.

The judge goes on and frames things in a way minimizing the problem: we are here dealing with a dispute "regarding the value of state decisions reached by way of the democratic process as contrasted with personal, genuine, and sincere lifestyle choices recognition" and the immediate dispute regards those "who vigorously submit if two people wish to enter into a bond of commitment and care and have that bond recognized by law as a marriage, they should be free to do so."  This is "society's latest short fuse."  Wikipedia has the bans here going back to the 1980s.

Note, again, however, that if the two people -- and to ff, that already is too broad -- want a civil union akin to marriage ("substantially similar"), that too is blocked.  Some who are religiously or otherwise against "marriage" support civil unions. That is blocked -- by constitutional amendment. I would argue that the coverage of this case, including the very url to the case, somewhat significantly papers over this very important matter. This becomes about "same sex marriage," when it is more.  The "plus" to me might even be a way for someone like CJ Roberts to concur in part when the fait accompli of protecting same sex marriage comes to past. I have been talking about this issue for a few years now. 

The ruling here non-controversially applies rational basis review as to sexual orientation, which if nothing else is loyal to circuit precedent.  Other courts held that even that would be violated and one news report noted Judge Posner didn't care about the whole heightened scrutiny thing -- the bans he was trying failed rational basis.  The judge then notes Windsor isn't as determinative as other courts held -- it was concerned about the federal government in a special way interfered with state control over marriage (though it had "alluring" dicta for both sides).  Perhaps, showing the truth to the last part, the opinion does not focus upon the parts of Windsor where the harms to children etc. from not protecting same sex couples are raised.

We are told that democratic processes should be relied upon now, helped by a dissenting opinion of Justice Powell (who also concurred only in the marriage case Zablocki in part because its broad language seemed to be so open-ended as to override such things as bans on homosexuality -- telling point!).  But, special scrutiny is warranted here because the democratic processes alone as noted back in the 1930s:

prejudice against discrete and insular minorities may be a special condition, which tends seriously to curtail the operation of those political processes ordinarily to be relied upon to protect minorities.

Likewise, certain criteria is not an appropriate guide for legislation like political faith or sexual orientation as a general matter.  Finally, there is the matter of fundamental rights such as marriage. Certain things aren't left to the democratic process in our constitutional republic.  Precedent or no, and the Obama Administration logically holds current guidelines rightly applied would merit heightened scrutiny in this area (the USSC has in effect left the question open), Lawrence v. Texas was a seminal case in this area and it's time to be consistent.

Intimate association, a right held as fundamental in a range of cases, was applied to same sex couples.  This was not said to make incest statutes or something irrational. A slew of cases of late showed it is irrational as a legal matter not apply the same equality to marriage rights (or civil unions).  Even though historically, like sexual relations, the right was not applied to same sex couples. It was not seen as a "new" right unworthy of protection.  In Reed v. Reed, tradition wasn't enough to uphold something not that long before would widely protected -- favoring the husband over the wife.  Developments showed this was legally irrational. Even if "thousands of years" of history could be shown to justify it. 

The judge also uses some standard tropes to reject the Loving v. Virginia comparisons.  We have this whopper:

Heightened scrutiny was warranted in Loving because the [14A] expressly condemns racial discrimination as a constitutional evil; in short, the Constitution specifically bans differentiation based on race.

Where?  I don't see this "express" condemnation in my version of the Equal Protection Clause. The opinion expressly deals with race, but the Constitution itself  here is more universal -- persons.  There are various places where subsets (e.g., women) are specifically addressed. Shouldn't the text matter? To address another point raised, Loving rejected the "evenhanded" ban when the classification itself was deemed arbitrary. It is overly generous to say that is in place in these laws.

The theme of the opinion is respect for "democratic process," a drinking game can be set up to determine how many times it comes up, but if not as broadly as Romer,  it is a special form that goes beyond simple legislative action to put in place constitutional barriers for certain groups.  And, what is the rational basis?  Fairly typically, if without much discusion we are told that the "preeminent purpose of linking children to their biological parents."  By denying some the right to marry (or even civil union) a person of the same sex (as noted in passing, this would include transsexuals), including those with children. The state allows same sex persons to adopt.  What is the "rational" ground to not even provide civil unions, which -- as Windsor notes -- protect in part children?  Of course, marriage is in place for a slew of reasons.  It is fakery to rely on this at the end of the day.

Update: As the around a week after oral argument 7CA opinion notes, the rationale is "so full of holes that it cannot be taken seriously," partially since it is in fact counterproductive to the children it is meant to protect.  It cites something called "constitutional law" as requiring simple democratic process (the same process somewhat indirectly brought the Constitution and the judges here who interpret it) to be overridden at times. 

It also noted even the "skim milk" (or second class) marriages struck down by Windsor would be better than the barrier even to marriage-lite.  Finally, turns out they did apply heightened scrutiny.  The case rested on equal protection alone, but its focus on harm to children is perhaps the key value to the cause here. The scorn of the makeweight rationale in support of the ban is appreciated though two things: (1) the discussion basically seems to ignores bisexual, which makes the "accidental birth" concern even weaker (2)  the focus on EP alone gives the state a bit of a break since the stream of reasons (not just children -- see, e.g., Turner v. Safley) for marriage are not dwelt upon. The attempt to make marriage small makes me a mixture of disdainful and depressed.  Avoiding the whole "meaning of marriage" thing does make the opinion fwiw somewhat less "activist." 


The judge is loathe to accept that the constitutional barriers of the breadth here "could only be inspired by hate and intolerance" though honesty (and the history behind the laws at issue, probably covered by the couples in their brief while ignored by the opinion) might hold otherwise.  The breadth of the barrier and the bad fit, especially if we honor -- as Lawrence v. Texas counsels we must -- equal rights to basic rights here.  But, animus is not even necessary.  An "improper" purpose is enough. Perhaps, the lack of discussion in the opinion and desire to address social science data is helpful here, since a seriously examination would show how the bans rest on sand.  The detailed opinion of Judge Walker was useful here over appeals to history that would uphold lots of aspects of marriage now deemed not only wrong but unconstitutional.

The marriage section provides a certain disdain for the claims (the couples "fervently insist" while the state "counters";  couples "envision" apparently that marriage is a right for "everyone without limitation").  A limited view of "marriage" is argued for, one that in the 1970s would have led to the upholding of sex specific laws and later bans on sex before marriage. But, that isn't how the right was applied. The usage of Glucksberg to provide a narrow reading of rights has not been applied to those long existing such as speech or marriage as compared to things like assisted suicide.

Since marriage is in no way solely about linking children to their biological parents (and same sex marriage to some extent even furthers that), it warrants, especially after Lawrence v. Texas provide protections to same sex couples as to intimate association, some discussion why the other courts were wrong here.  The ruling overrides mere reliance on history or appeals to democratic process.  It also did not merely rest on "the privacy model" but "liberty" and somehow didn't get in trouble dealing with incest (though some bans here apply in states that allow first cousin marriages). Some in fact appreciated just that differential. Anyway, marriage repeatedly has been included in the collection of  liberties at issue here.

True enough that this is a step beyond Lawrence, but it is loyal to its ultimate logic and the same applies to Windsor and Romer v. Evans. Scalia is correct there though it is not absurd to find some ground between the cases here -- this is a somewhat harder case.  But, reasoned judgment here, not mere "a pageant of empathy; decisions impelled by a response of innate pathos" (singular dissent is acceptable, but really, perhaps a bit of caution is warranted?) shows same sex marriage (or at least some form of marriage-lite) is constitutionally warranted.  This might require a bit more work in way of examining just what "marriage" and "civil unions" amount to these days than provided here, but that is what law clerks are for.

Like a house made of various parts, at this point it is irrational not to provide marriage rights to same sex couples while protecting a range of other things that make up that structure. Same sex couples can associate in bars, have sex, cohabit, adopt etc.  Why not marry? The opinion here at least didn't have to pretend Baker v. Nelson means anything any more since the state accepted it no longer had bite. It was bound to be the case that some federal judge wrote an opinion rejecting the claims here (there have been dissents in appellate rulings) and the democratic process focus is pretty unsurprising. I guess, especially a Reagan appointee, the claim that the stream of judges (appointed by a range of presidents) are because of "empathy" or the like wrongly protecting the "new right" here.

Hard pressed to imagine an overall well-written opinion in this area rejecting the claims ... still waiting in this range of cases.

Belle and Bob the Cat

"Belle" from the "Street Cat" books gets a face.