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

Sunday, November 30, 2014

Ray Rice Ruling

A Great and Godly Adventure is a good short subject history of Thanksgiving in the U.S. 

Meanwhile,  as seen here (with opinion), Ray Rice won his appeal. It helps that a former federal judge that is a woman wrote it. I wouldn’t be surprised if he came back. And, the league has miscreants who did some horrible things too. Just none with video.

The opinion provided at the link is both fairly short (17 pages with key points in the second half) and very important to get a sense of the matter. At one point, “public confidence” is cited as grounds for discretion. If that alone was at stake, and this influenced my own thinking, the release of the video very well might have made all the difference. But, according to the judge, taking everything into consideration, the thing turned on the judgement that Rice lied or at least misled the NFL.

Given that, I do trust the opinion of the judge here.  Some will be upset, but the ire should be at the league for mishandling things. The league has various players who have done some horrible things, including of a serious violent nature. The original two game suspension might be deemed too little, but it fit with the rules as applied.  Use of ex post facto procedures is not the best approach to deal with domestic violence. Sometimes, offensive people get the benefit of due process of law. It's useful to remember that now and again, not just when the death penalty is involved or some other liberal friendly situation. 

And, now for some football.

Rev. Joe: Facing the Music

I referenced this book earlier while still reading it, after coming upon it in the new book section at the local library.  Don't recall being familiar with her work though she sounds good from what I can tell.  Have read some autobiographical works with a religious context, but what got me hooked was the writing, and it's not a "written with" affair either.  The fact she timed her birth by opening her book with a reference to Roe v Wade didn't hurt, given my long held interest in that decision! 

It is a striking personal account as she discussed growing up in the Midwest with her dad and twin sister --  the union between her mom and dad a youthful one that didn't last -- struggling with her stepmother, finding the power of music and later Christian faith but later needing to take a break from the contemporary Christian music world she entered ... oh, and discovering she is a lesbian.  Early on this young lady pops up, who most know these days as Katy Perry.  But, you won't find much name dropping.

You can get a sense of her story in this long article that was part of her coming out practice (she noted at one point out in the book many Christians don't want GLBT people to "come out" though might be able to handle those like her that many thought might be GLBT - so, you are saying they can be "straight" or gay, if they aren't "straight with" you?).  Knapp notes she is a private person.  This comes out in the book.  You get a sense of her immediate family in her early years, but then it is largely a solitary affair. Once her sister leaves to live with their mom, e.g., she in effect disappears from the narrative.  Two half-siblings only get a passing reference.  It does hurt the overall narrative some.  The sister issue particularly is strange.  Is their relationship okay?  JN's partner does get some attention, but the account is on some level -- especially late -- a rather solitary affair.

Still, told with honesty and introspection, her journey is a good read. She explains how music comes from inside of her and is a fundamental means of self-expression. Knapp honestly discusses her troubles as a teen, including with alcohol, and how a fellow college student helped her survive and was the bridge to evangelical Christianity (religion not a big thing in her family growing up).  Her existing talent and love for music was put into practice here and led to a singing career in the Contemporary Christian Music (CCM) genre. She felt overwhelmed at some point and felt compelled to take a break.  Her budding realization that of lesbianism was also taking place, but JN says this is not the reason she took a break. That is, it is not like she was driven out of the business for that reason.

It is all very down to earth. Then, we are reminded that we are dealing with a CCM music star with some serious cash reserves -- she basically spends the next three or four years traveling the U.S., Europe and Australia with her partner, a former road manager with whom she fell in love.  This takes, oh let's say about fifty pages or so, and it kind of turned me off.  It's still well written and all, but it is a bit overwhelming and makes her into some well off celebrity sort that is harder to relate to on a basic level as before.  It was appreciated when it was time for her to re-start her career and formally out herself to the world/fans. Finally, again, it was a bit off how -- except for some references to her mom (supportive) -- her growing up family (since the word has various connotations) basically was never brought up. 

Since Christian faith/belief serves an important part of her life story, her discussion of her own story here is an important part of the account. Her journey here is somewhat atypical, even beyond the lesbian angle. The negative feedback and personal feelings of doubt that she could be a good "Christian" (a term applied particularly by evangelicals to mean a lot more than believing Christ is the Lord and Savior) was a dark part of her story.  There are all sorts of Christians and this is but one account.

JN says she is not the person to ask regarding trying to use scriptural verses or the like to show why being LGBT (or divorced or whatever) is not a ban from being a good Christian. She spent time reading the Bible and so forth when she first truly had a personal "Pauline" moment as a college student, but is not one to go that route.  This is fairly common -- the Bible is rich with material and I welcome analysis and research here, but the average person isn't out there quoting stuff. OTOH, it might be more likely for the type of evangelical Christianity types she used to hang with, as she notes.

Some do try to paper over references, at times going as far as saying the negative stuff is akin to eating shellfish. There is some overcompensation going on here though some of the verses are particularly concerned about certain types of practices, like male/boy relationships. I think this negative account of the references (that is, negatively as to the morality of homosexuality) is more true as to "original understanding" as some try to spin. The better point there is that it is wrong to focus so much on this and it out of date social rule making. The core problem for Paul, e.g., seems to be that it is "unnatural" and a rebellion against proper sex roles. The really anti-feminist verses in his epistles largely are result of later writers (see, e.g., "Timothy"), but are not equally taken any where as seriously. Women, e.g., are allowed to speak out in churches.  Re-marriage is often accepted. 

Simply put, if you asked a Jewish scholar type around the time of Jesus if same sex relationships were okay, they were going to say "no." This was largely motivated by outmoded understandings of sexuality and most people probably only familiar with negative cases such as prostitutes or man/boy behavior though even Jewish scholars of the age (e.g., Philo here) who would have known positive arguments in support of homosexuality by some Greeks etc. were against the practice.  Jesus had other things to worry about, but the little he said relevant on the matter assumed the male/woman division of sexual labor. How much this has to do with being "Christian" is unclear, akin to how the Catholic Church claims certain matters of faith are fixed, while recognizing certain social rules change over time.  I have no desire to claim they have been consistent here but there is a notable line all the same.  Changing views on sexual orientation can fit into an overall "Christian" mindset.*

Anyway, Jennifer Knapp did not focus on such debates and self-proclaimed "Christians" (or "Jews" for that matter) find an ability to be spiritual and religious even with a few negative quotes in their sacred texts. The richness of their lives, including religious lives, goes beyond that. 


* Putting aside if it is really an accurate account, Acts 15 is notable here. The idea is that there was a division on what Gentile converts were required to do to be good Christians. Did they have to follow Jewish law?  A compromise was developed, setting up four simple rules:
19 “It is my judgment, therefore, that we should not make it difficult for the Gentiles who are turning to God. 20 Instead we should write to them, telling them to abstain from food polluted by idols, from sexual immorality, from the meat of strangled animals and from blood.
The dietary rules here themselves were softened though abstaining from meat on Fridays, at least during Lent, suggests some continuance of the idea to a limited degree.  The "blood" reference here was originally dietary in nature, but later some took it to mean "murder."

And, then "sexual immorality."  Again, note how this is but one thing, but it is currently by some the one thing that matters more than most.  In fact, the other things aren't even seen as a problem any more, even bloody meat (let's say "game") not seen as irreligious.  But, sexual immorality! Oh no!

Still, the simple commands can be followed here, especially if you are a vegan or vegetarian! Don't favor untrue "gods" like idols. Making eating a sacred act, respectfully do so.  And, be honorable in your sexuality. Same sex relations or "fornication" outside of marriage need not be considered "immorality" if done with respect and care.  Many a married opposite sex couple are more "immoral" here arguably enough. 

"illegal alien"

A bit of a break, but news continued. Thus, some backlog.

Marty Lederman was one of the leading bloggers at Balkinization, left to be in the Obama Administration and came back to provide longer posts without allowing comments. His posts on the Hobby Lobby case got to be too much.  He also, though well argued, comes off a bit too much of an apologist at times.  Still, ML shows his work and makes a good point in his (as usual, long) contribution to a discussion on immigration:
 But the deferred-action initiative is even less troubling in this regard than the marijuana example, because it is not a violation of federal law for an undocumented alien to remain in the United States.  Although 8 U.S.C. 1325(a) makes it a misdemeanor for an alien to enter the United States “at any time or place other than as designated by immigration officers,” an undocumented alien has no legal obligation to leave the U.S. once she is present here.  (That’s why “illegal alien” is a misnomer.)
Justice Sotomayor has been vocal about this usage.  The rejoinder is that they did break the law. So what? Why are they in particular labeled "illegal" -- also as a stand alone label -- given the range of people who break laws?  Do we so bluntly label unlicensed electricians simply as "illegals" or something. We do not.  The term is selectively being applied to label a whole group of people as "illegal" in a way meant to be or by clear impact is shaming and somewhat dehumanizing.

The reminder here -- something even Rudy Giuliani once flagged -- that it is not "illegal" merely to reside undocumented is important. It is akin to calling someone an "illegal" for some past action they did. The term "undocumented" is particularly more reasonable here, since that specifically is what is the problem.  The person did commit a crime, but so did lots of people, down to those who use marijuana or back in the day, had sex outside of marriage.

An "alien who did something illegal" doesn't quite have the same bite, does it?  Not enough separation from the rest of us.

Thursday, November 27, 2014

Tuesday, November 25, 2014

Odds and Ends

I saw these "Mixis" dolls praised by a biracial tweeter, noting her niece loved them.  They don't only honor interracial individuals but try to be a more accurate "non-Barbie" representation of actual dimensions. Price also seems reasonable.

Facing the Music: I am reading Jennifer Knapp -- known for her Christian music background and coming out as a lesbian -- now. I'm not to the latter part, but just her early struggles with a broken home, alcoholism, a personal religious path and starting in the music business are handled very eloquently. No co-author is cited and am very impressed with her writing.  Clearly, she can write more than songs! 

ETA: Somewhat germane, and just because it's such a good read (e.g., the author repeatedly speaks of himself as "the undersigned"). The federal judge SSM train comes to Mississippi. It just arrived in Arkansas too, but this effort is of special note, including a series of questions such as "can gays and lesbians love." See more here.

IUDs and Religion: A new Slate article jumping into the Christmas display wars again already flags a 1980s research article finding IUDs are not an abortifacient (it flags Stevens' citation otherwise, but not the pro-choice advocate doing so). The point is useful, since "abortion" is such a scare word, but it doesn't matter on some level for a Hobby Lobby claim -- see, e.g., the religious beliefs of Catholics.  Suffice to say though the one article wasn't some sign of the debate being over -- at least, past research suggests even certain Planned Parenthood fact sheets didn't get the memo.  This is so even if it is basically deemed a scientific fact per today's knowledge that IUDs act as a contraceptive under "life begins at conception" terms.  The point again is somewhat moot since "abortion" is  not usually understood this way, and for many for which it is, contraceptives would violate God's law too.  

The article itself does bring to mind a concern I flagged back when Slate had a fray -- treating religious speech as basically speech is problematic when governmental action is involved. There are religious liberty issues too here and "speech" can neutralize them.  It -- as is sometimes the case -- can do so by cheapening religion in part by suggesting certain claims don't really matter. So, e.g., Scalia is okay with Ten Commandment displays, hand-waving that there are doctrinal differences between various versions. Eh. Trivial difference!  Then again, the separatist wing of the religion is great but render to Caesar only what he is warranted caucus is an uncomfortable one for some.  

Secular Humanism: Also flagged is a recent prisoner's right case that treated secular humanism as a religion.  On some level it's besides the point: 
“I really don’t care if Humanism is called a religion or not,” Greg Epstein, Humanist Chaplain at Harvard University and author of Good Without God: What a Billion Nonreligious People Do Believe [flagged a little while back on this blog], told ThinkProgress. “But if you’re going to give special rights to religions, then you have to give them to Humanism as well, and I think that’s what this case was about.”
Basically, don't call it a religion, you cannot favor other beliefs of a "religious" nature without running into Establishment Clause problems. And, this isn't a "gotcha" for the Right -- the individual here is actually practicing a certain belief structure, one that is not done by the state, e.g., when it separates church and state (which again many deists support) or teach things like evolution. If secular humanism is in effect treated like your personal "religion," there is a "free exercise" right at issue here.

Thanksgiving: Let me prematurely break for the week by saying a few words about the holiday. (1) It's a proper means to give thanks, be with family, celebrate football and so on. (2) Pardoning turkeys, even without Obama's record as to humans here being a problem, is moronic. (3) Thanksgiving has and had some religious aspects, but again isn't just of that nature. In both respects, however, it often was honored as a time warranting fasting and repentance. A full history here is a bit different than, let's say something you'd get from a Spencer Tracy movie


As a liberal sort, I'm a bit wary about the talk that "probable cause" is so easy to meet, grand juries always indict etc., since in most cases, the defendant isn't some police officer who killed a black teenager. Still, the cynicism is at least somewhat warranted in that most grand juries aren't handled like this. This has the look of a public relations gambit, which results in certain "special" defendants getting extra protections outside a normal public trial.

Ferguson Ruling

Grand juries basically (somewhat more than I thought) always bring true bills; an example of a categorical exception was seen last night. It also was atypical as to how long and drawn out the grand jury proceedings were. And, white or black, police shootings rarely are prosecuted. I'm unsure really if this was so very atypical here (some argue prosecutor did a bad job), but that's how cause célèbres often arise -- not just unique events, but ones that somehow are made into one. While I'm safe in my cocoon, some serious blowback is going on.

Monday, November 24, 2014

Coughlin Should Just Resign / What's The Point Any More?

Snow delayed the NYJ game to tonight, which is no longer going to be played in Buffalo (outer edges of playoff race), but the NYG had a chance to play spoiler last night. After a remarkable scoring catch they decided to replay about 10x (sorry, might have only been seven or so) and an eleven point lead, interception Manning showed up, which was the start of the end. It took a Dallas scoring drive after they went up again though to underline the futility.

SNL Obama Executive Order Skit

Though they didn't actually explain how it was wrong, some ridiculed a 'fact check' of the skit, which could have added that the executive order isn't based on air. It is based on existing law and is restrained by it. Satire is open to criticism -- it can be a powerful means of commentary, but also wrong-minded. It is childish, as are many Obama critics, to ignore this.

Saturday, November 22, 2014

Pinups for Pitbulls

You can click the picture for the website; I checked out the book.  The idea is to use pin-ups (the author comes from a modeling background) to help promote the cause of this maligned breed. ASPCA says this:
The reality is that dogs of many breeds can be selectively bred or trained to develop aggressive traits.  Therefore the responsible ownership of any dog requires a commitment to proper socialization, humane training and conscientious supervision. Despite our best efforts, there will always be dogs of various breeds that are simply too dangerous to live safely in society. We can effectively address the danger posed by these dogs by supporting the passage and  vigorous  enforcement of laws that focus, not on breed, but on people’s responsibility for their dogs’ behavior, including measures that hold owners of all breeds accountable for properly housing, supervising and controlling their dogs.  Breed neutral “dangerous dog” laws, “leash laws” that prohibit dogs from running loose off their owners’ property, and “anti chaining” laws can control the behavior of individual dogs and individual owners and thereby help reduce the risk of harm to people and other animals.

Laws that ban particular breeds of dogs do not achieve these aims and instead create the illusion, but not the reality, of enhanced public safety.  Notably, there are no statewide laws that discriminate based on dog breed, and 18 states have taken the proactive step of expressly banning laws that single out particular breeds for disparate legal treatment.  Even the White House has weighed in against laws that target specific breeds. In a a statement issued in 2013, President Obama said “[w]e don’t support breed-specific legislation—research shows that bans on certain types of dogs are largely ineffective and often a waste of public resources. And the simple fact is that dogs of any breed can become dangerous when they’re intentionally or unintentionally raised to be aggressive.”
The non-discrimination sentiment might confuse some readers of the pit bull Wikipedia page  that suggests a certain level of special dangerousness here.  The page also can give you more on the background of the breed, which the book could have did more to discuss. The book is basically a place to find pics of a range of sexy looking women with dogs, provide the author's entry into the pro-pit bull movement, provide examples of precious pit-bulls (more than one thanks, in a matter of speaking to the current QB of the Jets) and some supportive comments.

It's a nice looking table top sort of book that will help promote and fund the efforts of its backers, who have not only posed and looked sexy, but adopted injured dogs, help train therapy dogs, dealt with Hurricane Katrina's animal needs and overall did saintly work honoring "man's best friend" in a variety of ways.

More On Previous Subject

Note: I edited the two posts some over the last few days to add a few details such as an interesting law article by the same person cited by Griswold as writing a previous one on the subject. 

One thing it noted is that rights don't develop simply by a sort of "magic" like miasma was thought to spontaneously develop out of bad air.  They develop over time, often as a result of specific problems that are seen as requiring some sort of solution. This might turn some off, but life is annoying like that at times.  Such was the nature of the "right of privacy" here, which I should note wasn't simply announced by the USSC in the mid-1960s.  This is how some accounts treat the whole thing.

As with the famous law article a few generations before, it was the result of something already in the air, "privacy" particularly various aspects of it, already repeatedly cited in past cases and as generally recognized as existing by society overall. The ruling was a sort of recognition that a "tipping point" arrived, a time to firmly label what was already there. 

A few more words on the last topic. 

Read an interesting article on Douglas' privacy jurisprudence, "Toward a Constitutional Theory of Individuality" that was written in 1978 but retains value. It notes, e.g., that some have argued that Douglas in Griswold narrowed his more "natural law" thoughts as to privacy in part to get a Court to sign on.  Dissents and concurrences can be more open-ended, but as I noted, five justices signed on to concurrences that viewed things in a more open-ended way anyway.  They supported a type of "substantive due process" that honored various unenumerated rights (voting, family life, travel, equality as applied to the federal government).  I don't think Justice Clark's vote -- a person who later wrote an influential article on the right to abortion and even one suggesting in passing personal marijuana use was protected here, both without implying some concern about substantive due process -- required it either. And, the "penumbra" approach, for good or ill,  also didn't really have staying power as seen by Roe's simple citation of due process.

Justice Douglas from time to time continued a concern about substantive due process while finding ways to rule broadly in some other fashion. For instance, his separate concurrence in the lesser known abortion ruling (Doe v. Bolton) insisted Justice Stewart was wrong to call the right to privacy an aspect of "substantive due process," which to Douglas seemed in effect to be a sort of "Lochner-like" red flag.  But, Douglas still managed to draw out a broad view of the "right to privacy" with the constitutional hook ala Griswold something of a hand-wave at some point. Another example would be the Moreno case, which relied on what is now seen as "animus" while Douglas relied on a broad right to association or another where he relied on equal protection over due process with ironic "restraint" concerns.

As the article notes, Douglas comes off as somewhat inconsistent, since his style favors broad strokes, not fully honest admitting of interest balances. See, e.g., this case.  This comes up in general conversation on various issues too -- a favorite example, at times raised as if novel, is the apparent confusion of how lines can be drawn at same sex marriage and not incest or polygamy. Or, how a "right to privacy" is not the same as some open-ended libertarian regime that results in drug legalization or something.  Fact is lines are drawn, in part a result of what is currently seen as appropriate. Many realize this ("I don't mean that!") and law recognizes it, even when written opinions don't necessarily show as much work as let's say a law review article. Thus, no, I'm not going to go along with Kennedy bashing because his Windsor opinion etc. is at times not totally clear on how to apply the rules as much as having a general tendency.  Reasoned criticism is appropriate though that would be true for many a justice's opinion.

Anyway, Griswold, particularly as helped by the concurrences, continues to be valuable. Note, e.g., White's recognition of various cases that protected family life (which he later wrongly failed to see could include homosexuals in his abrupt dismissal in Bowers v. Hardwick, even though he accepted the precedent effect of cases that applied to unmarried sexual relations in general) and how in practice the anti-contraceptive law was applied unequally.  The "penumbra and emanations" language was expressed shortly before in a concurrence joined by three justices:
the protection of the Bill of Rights goes beyond the specific guarantees to protect from congressional [or state] abridgment those equally fundamental personal rights necessary to make the express guarantees fully meaningful.
Since some accounts have Justice Brennan counsel Douglas to expand on his draft opinion, I wonder if he flagged this language.  As noted, Douglas spoke of the general principle with some usage of the word "penumbra" or "emanation" before this, but that phrasing sounds ... to be blunt ... less funny. People ridicule Douglas' phrasing, even though the concept behind it is perfectly mundane. (How far you can go with it is another question.) This shows however that judicial craft matters though again the average person still doesn't care much -- Griswold unlike Roe is safe even from the criticism of many conservatives, though Scalia and Thomas might dissent.

As noted above, when applying the law, current practices will influence the results. This is the case whatever the issue and "liberty," "privacy," "due process," "equal protection" or some other open-ended term is not unique in this regard.  So, in 1986, though Justice Powell originally by accounts I read was willing to vote the other way (and a few years later said he probably should have), an attempt to fit same sex relations in broader rights held  "deeply rooted in this Nation's history and tradition" or "implicit in the concept of ordered liberty" (citing two tests) was deemed "at best, facetious." Putting aside the opinion below, the dissent and others (including then Judge Kennedy) seeing it differently. Others either treated homosexuals differently [see, e.g., this article] or even a range of non-marital behaviors though this was destined to be somewhat short lived, even in some cases conservatives coming around to such things as same sex marriages.

Times change. Laurence Tribe in his oral argument (see Oyez.com) had to deal with dicta in concurring opinions in Griswold that suggested homosexual relations could be treated differently. But, that opinion was before Stonewall, taking homosexuality off the formal list of mental orders and so forth.  By the late 1970s, Justice Powell warned* that open-ended protection of marriage as a component of the right to privacy left open the overruling of barriers based on sexual orientation.  And, the opinion below recognized same sex couples had the general criteria warranting protection.  It took time for more to fight against habit and other assumptions to concur. 

And, this process continues, and will in ways that is a few decades will likely seem as striking as same sex relationships being recognized once was and still is for some.


* There is a tendency toward making same sex marriage a bit more novel than it truly is. I put aside "Boston marriages" of a century ago and a few Baker v. Nelson like claims. Also, some other historical precedents and transsexual issues.  "Marriage" is a collection of things basically (religious, intimate, social etc. in nature) and this is seen in respect to "common law" marriage (in effect, though it no longer is widely recognized, living like man and wife = married even without a license; it is interesting to consider how this applies to same sex couples today).  And, over the years, same sex couples had such criteria.  It was just a matter of recognizing the fact.

Justice Powell's concurring opinion in that case recognizes this:
State regulation has included bans on incest, bigamy, and homosexuality, as well as various preconditions to marriage, such as blood tests. Likewise, a showing of fault on the part of one of the partners traditionally has been a prerequisite to the dissolution of an unsuccessful union. A "compelling state purpose" inquiry would cast doubt on the network of restrictions that the States have fashioned to govern marriage and divorce.
By the late 1970s, coverture already in effect was treated as a violation of equal protection (see, e.g., Reed v. Reed), something that for centuries was deemed a basic part of "traditional" marriage.  Now, it is seen as not really needed for "marriage" to exist, even by many conservatives.  I think Powell's chickens, so to speak, are about to roost here.

Friday, November 21, 2014

Griswold Half-Century

In time for the fiftieth anniversary of Griswold v. Connecticut, The Connecticut Law Review will publish the product of a recent symposium on privacy.  Some, including the author of Lawrence v. Texas (which quoted a separate dissent by Justice Stevens, not the privacy laden dissent of Justice Blackmun, for Bowers v. Hardwick), for a focus on "liberty" in general.  The latter opinion opens, however, with what might be seen as a paean to "privacy," if that word is not confused with "secrecy" or the like:
Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home. And there are other spheres of our lives and existence, outside the home, where the State should not be a dominant presence. Freedom extends beyond spatial bounds. Liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct. The instant case involves liberty of the person both in its spatial and more transcendent dimensions.
"Liberty" is an open-ended term.  "Privacy" provides some clarity on specific interests. When we say "that is private," it can mean more than one thing (a choice is yours to make, e.g., or it can be a matter of intimacy of space or self).  A somewhat obscure case that upheld regulations involving computerized record keeping of possibly sensitive drugs  recognized that the term involved various interests: 
The first is the right of the individual to be free in his private affairs from governmental surveillance and intrusion. The second is the right of an individual not to have his private affairs made public by the government. The third is the right of an individual to be free in action, thought, experience, and belief from governmental compulsion.
Prof. Allen here provides six aspects of privacy. Some accounts of Griswold fail to adequately honor its roots, putting aside that its use of "penumbra" (see, e.g., Justice Holmes' dissenting opinion in Olmstead v. U.S.) was not unique.  Douglas first firmly honored a "right to privacy" in a dissenting opinion [note how even the majority opinion at least opens up the possibility of "the privacy to which he is entitled in his own home," but however "complete his right of privacy may be at home," the case involved public transportation] over a decade before, arguing that the "liberty" protected by due process includes privacy, in fact that the "right to be let alone is indeed the beginning of all freedom." This shall we say structural claim was reaffirmed in his dissenting opinion, which was more expansive than his opinion for the court in Griswold, when the Supreme Court avoided deciding the merits of the question in Poe v. Ullman:
"Liberty" is a conception that sometimes gains content from the emanations of other specific guarantees or from experience with the requirements of a free society.
As with the majority opinion in Roe v. Wade largely only summarizing privacy rulings without doing more -- as seen as quite possible if we look at the two main concurrences -- it is unfortunate that Griswold did not spend more time to flesh out the particulars. We are left with later opinions basically summarily assuming things when some more legwork would be useful.  The material is there.  Thus, e.g., Griswold does little but raise the specter of usage barriers resulting in the violation of marital bedrooms. The overbreadth concern is valid but summarily expression. Cf. Poe:
If it can make this law, it can enforce it. And proof of its violation necessarily involves an inquiry into the relations between man and wife. That is an invasion of the privacy that is implicit in a free society.
Justice Harlan's dissenting opinion in this earlier contraceptives case is even more expansive and is a favorite source of quotation, including its discussion of the developing nature of what legal types called "substantive due process" over time.  It too points to the problem with usage bans:
Precisely what is involved here is this: the State is asserting the right to enforce its moral judgment by intruding upon the most intimate details of the marital relation with the full power of the criminal law. Potentially, this could allow the deployment of all the incidental machinery of the criminal law, arrests, searches and seizures; inevitably, it must mean at the very least the lodging of criminal charges, a public trial, and testimony as to the corpus delicti. Nor could any imaginable elaboration of presumptions, testimonial privileges, or other safeguards, alleviate the necessity for testimony as to the mode and manner of the married couples' sexual relations, or at least the opportunity for the accused to make denial of the charges. In sum, the statute allows the State to enquire into, prove and punish married people for the private use of their marital intimacy.
Griswold's brevity has its charms, however, since it provides a more open-ended possibility, particularly when it no longer is limited to its marital aspects.  The case is only specifically about marriage -- it is in that a relatively easy case -- but more broadly speaks of "privacies of life" and so forth.  Nonetheless, there is a value in providing a somewhat careful analysis of the specifics of the case.  Let's not pretend, however, that this is always done or that people in general really often care.  The average person doesn't read court opinions, more concerned about results.

Still, details and careful analysis provides value, and well crafted opinions and legal thought involve such things.  I do wish Roe and Griswold had more of that in some respects though both -- along with other privacy cases -- deserve more respect than some give them.  For instance, a full third of Douglas' Poe dissent addresses the First Amendment aspects of the case, birth control advocacy and counseling for years a forbidden subject. The matter is not much covered in Griswold, except to the degree that the counselors here are found to have "standing to raise the constitutional rights of the married people with whom they had a professional relationship."

Anyway, note the usage of the word "emanations" above.  The specific example provided there is the right to association -- it is not expressly found in the Constitution, but it was assumed to be protected as a means to promote First Amendment principles.  There is a right to "assembly," but that is not quite the same thing. "Assembly" suggests a temporary association of people at a rally or some such. An "association," with  privacy of membership lists and so forth honored in some opinions, is a more complex animal.  The matter arose in particular at this time in respect to investigations of certain groups, including as to the breadth of the right of Congress to investigate individuals. See, e.g., Watkins v. U.S., which spoke of "the individual and personal interest in privacy." Such concerns were raised as far back as the late 19th Century (opinion of Douglas) in a similar context.

Griswold shows how enumerated rights in effect have an implicit "necessary and proper" aspect akin to a fence protecting property or some amount of personal space around an individual. Sticking a finger two inches from one's face might work as "I'm not touching you" when an annoying sibling is involved, but not in law.  As the opinion notes in respect to expression -- "right to distribute, the right to receive, the right to read and freedom of inquiry, freedom of thought, and freedom to teach" -- is involved.  Douglas cites a "penumbra" (type of shadow) of privacy being in place here. The same can be said regarding religious freedom -- the freedom of conscience is an aspect of privacy.  That is, something personal, not "public" for the government and others to invade.

Thus, the opinion argues that there is an overall constitutional right to "privacy" that is necessary to truly protect First Amendment rights.  The litigants spent more time defending an independent liberty interest in marriage (Justice White separately simply relied on such precedents), which required the state to more carefully defend the law here.  But, the majority saw this as an appeal to disfavored substantive due process cases that "touch economic problems, business affairs, or social conditions" that should be usually left to the legislature. The specter of Lochner was raised. Privacy, a sort of back-up argument, provided a way around this problem.  Justice White simply noted past cases showed that matters of family life were treated more carefully than economic matters.  And, given the breadth of a term like "social" etc., which the dissent here felt covered just this case, line-drawing could be tricky. See, e.g., later cases that involved the sale of contraceptives or zoning issues (cf. Douglas majority opinion and dissent of Marshall).  

The opinion continues down the list of the Bill of Rights, citing the Fourth Amendment, noting in a footnote that a key precedent here stated that "it is the invasion of his indefeasible right of personal security, personal liberty and private property" that is the "essence" of the protection, not merely some property interest (cf. Scalia's opinion in U.S. v. Jones). And, "privacy" was repeatedly noted as being at stake in various previous opinions of the Court here.  The Fifth Amendment is mostly merely cited here along with the Third (cited by the dissents in Poe too) and Ninth (left for a concurrence to analyze) though cases like Murphy v. Waterfront Commission could have been cited and its statement that the Self-Incrimination Clause in part honors "our respect for the inviolability of the human personality and of the right of each individual to a private enclave where he may lead a private life." 

Justice Harlan in Poe covered this same ground, again with more meat -- when dealing with "liberty" under the Due Process Clause, mere property interests in a home weren't the only thing at issue.  Family life was as well and again various opinions recognized this. Douglas here cited one -- Skinner -- though there is no suggestion there some "penumbra" of the Bill of Rights is involved. Harlan is correct to note that appeal to the enumerations of the BOR only takes us so far, since "liberty" means more, but Douglas does provide value in showing how "privacy" can be see as necessary to truly honor the rights specified. But, as spelled out by Justice Goldberg (with an assist from his law clerk, Stephen Breyer), merely because a right is not enumerated should not mean we should disparage it.  And, again, Douglas didn't limit himself to specific enumerated rights previously either -- ironically, Griswold attempts to be more restraining.

The opinion as noted above also is somewhat strangely -- Douglas' slipshod nature and laziness in opinion writing is not too surprising overall -- slim in nature given he could have simply flesh things out based on what he wrote in Poe v. Ullman or even past off court writings.  Two law articles were cited.  [A later exploration of the issue by the author of one of them can be found here with various insights, such as the way rights develop -- see, e.g., FN8 and surrounding text.] For some reason, though he honored it elsewhere as did the Court itself for this purpose, he didn't cite Brandeis' famous Olmstead dissent defense of privacy.  In Poe, he cited Warren and Brandeis' famous privacy article, to help show the development of the idea of a right to privacy.  Again, the Harlan dissent in Poe shows more material was out there too among various cases honoring a right of privacy.**

Since it is a sensible principle not to go further than one needs to, showing how privacy can often be seen as necessary to uphold specific enumerated liberties such as speech, religion or the private areas specified by the Fourth Amendment has its value. Again, one might want him to do more to flesh out such discussion.  But, especially if we look at the concurring opinions (covering five justices) and later opinions, the "liberty" here goes further. It also, citing an opinion Douglas includes, covers not only personal rights but a means to authorize governmental power:
All declare for liberty and proceed to disagree among themselves as to its true meaning. There is equal unanimity that opportunists, for private gain, cannot be permitted to arm themselves with an acceptable principle, such as that of a right to work, a privilege to engage in interstate commerce, or a free press, and proceed to use it as an iron standard to smooth their path by crushing the living rights of others to privacy and repose. This case calls for an adjustment of constitutional rights in the light of the particular living conditions of the time and place. Everyone cannot have his own way and each must yield something to the reasonable satisfaction of the needs of all.
At issue there was the regulation of door-to-door salesman, but the same can arise with "do not call" registries and the like.  Privacy is an interest that can be protected against from non-governmental invasion as seen in tort law, which in large part is where the "right to privacy" first developed. A tricky case here would be libel law -- in Time v. Hill, e.g., the liberals split, the dissent arguing that it was proper in that case to regulate the press in such a way to protect the privacy of the family involved.  Stricter rules are in place to prove libels when public figures or matters of public concern are involved. Regulation of sound trucks and the like already by that time also recognized a right to privacy that justified regulations even with speech.

Douglas was more correct the first time -- liberty at times can be defined by specific provisions but also other ways.  The current same sex marriage debate is in part based on the freedom to marry, something that is not simply an emanation of the First Amendment or something, though the rights there clearly factor in here.  Thus, you can -- as the usual account says Douglas did before expanding his Griswold opinion a bit (given its brevity, hard to imagine how shorter it was originally) -- see this as a matter of intimate association arising out of the First Amendment.  But, marriage was seen as time honored "liberty" (see, e.g., Meyer v. Nebraska in the 1920s) that went beyond that.  All the same, even here, specific guarantees highlight particular concerns (e.g., religious upbringing of children).

I look forward to reading the symposium's results -- there is so much here, such richness of material to cover and contemplate.  After all, the Heller opinion even suggested the right to keep and bear arms is particularly strong in the home and to defend oneself.  Douglas was no fan (dissenting opinion) of this view of the right, but the Second Amendment could have been included -- see, e.g., the dissenting opinion in this ruling.


* Douglas does return to the matter in a later case, which he separately would have also treated as a First Amendment case though the majority treated it as an equal protection matter regarding birth control and the unmarried. The case involved a birth control advocate handing out contraceptives at a speech, which raises interesting questions regarding speech and action that the  majority ignored.

The majority also is an example of use of precedent to expand privacy rights -- birth control is no longer only for the married or the bedroom -- with a few sentences and quotations. It is somewhat striking how few times an in depth discussion is provided with that largely left to concurring and dissenting opinions.  Again, to avoid assumptions, not saying this is unique necessarily in this context, but as an observer, it is still a bit striking and rather unfortunate.

** None of the opinions in the two main contraceptive cases cited here did much to talk about the Third Amendment, mostly cited as an example of where privacy is explicitly honored in the Constitution.  Douglas in Poe deems it obvious if the Constitution is going to honor privacy in that limited fashion, it must "also bar the police from investigating the intimacies of the marriage relation" without suggesting perhaps the BOR simply is concerned with particular violations of privacy here.

It would be easy, if desired, to discuss the background history here and show how the amendment did have a privacy aspect, along with a concern with the separation of the military from the civil power.  Anyway, Douglas' assumption aside, he along with Harlan felt the protection of "liberty" went beyond the enumerated restraints of the BOR anyhow.  This is as it should be, especially with the Ninth Amendment's reminder.

Thursday, November 20, 2014

Obama's Immigration Speech

I am wary about speeches but Obama's comments on his executive action on immigration tonight was reasonable mixed with an appeal to principle, including religious values. It is legal and consistent with past presidents. The reply from some, including leadership that failed to act on a bill that past the Senate, is overblown b.s. when it avoids being simply offensive and racist. Thanks Obama and you know "fu" to unhelpful hateful trolls.

The Wonderful Wizard of Oz

Don't know if I ever saw the whole movie, but finally did read the book. It is a pretty impressive effort, note it was written back in 1900, and putting aside some violent parts (e.g., killing a bunch of wolf-like creatures), stands up pretty well. It creates a special world of imagination and slyly teaches about things like true intelligence (Scarecrow, e.g., repeatedly shows he is pretty smart). My copy has a recent introduction, but the book as a whole is in public domain, if only between between 1960 and 1986 per earlier laws.

"The Gag Rule of Five?"

See here. The article highlights the "courtesy fifth" issue in stays, but has more on transparency in general. Page 320 at the "confirmation link" covers that issue. Also, there is pushback from Roberts since he was only serving as an advocate. Yeah. Serving in a presidential administration like that is sorta a flag on your true beliefs be it him or Kagan.

Wednesday, November 19, 2014

Landrieu Keystone Pipeline Bill Filibustered

Sen. Landrieu, who supported the pipeline for some time, pushed for a stand alone vote in part according to analysts to help her apparently doomed run-off election or perhaps as one final swan song that might also help her past-Senate lobbying career.  The blocked vote (by one) still might have helped her, it in part by now a symbol for both sides (pro and con, environmental or Democrats in general) far beyond its immediate effects

A transcript of Naomi Klein's segment can be found here and with it is a statement from Obama that is negative as to its value:
My government believes that we should judge this pipeline based on whether or not it accelerates climate change or whether it helps the American people with their energy costs and their gas prices. And I have to constantly push back against this idea that somehow the Keystone pipeline is either this massive jobs bill for the United States or is somehow lowering gas prices. Understand what this project is: It is providing the ability of Canada to pump their oil, send it through our land down to the Gulf, where it will be sold everywhere else. And it doesn’t have an impact on U.S. gas prices.
He has dragged out things here, even if I'm unclear if he ever gave a firm "no" on the matter. I guess we will see if he will get a chance to veto legislation in the next Congress or if a filibuster will hold there, especially since one of those votes was from a retiring lame duck due to be replaced by a Republican.  Few Democrats generally labelled conservative voted against it though Sen. Feinstein did, suggesting every vote counts and those who see little use for Landrieu might be a tad shortsighted. 

There was pushback on even having the vote from some on the left, but in hindsight it seems to work out pretty well. The message is that Landrieu is something of an outlier, helping her somewhat I guess, while the Democrats as a whole appear both loyal to a member of their caucus (though in a somewhat token way -- their campaign committee isn't much for, e.g., helping her with funds)  but still pro-environment. At least, that can be how things are framed and that is ultimately the bottom line if we go by results.  A holding action is a win the next two years.

A final word. I have, perhaps wrongly, not been that informed about this issue, partially since it never was totally immediate (the final okay) though as a general matter I would have avoided it if possible -- it's one of those things where I follow a precautionary principle and opposition is a red flag. I'm still wary about it clouding out everything else -- Obama did do some good overall in pushing for green policies -- overall I'm with the Democrats as a whole here. It looks like a bad idea.

Tuesday, November 18, 2014

Justice Souter on the Importance of Humanities

“What the humanities and social sciences have to teach us is the variety of truth, the provisional nature of conclusions, the sources of illumination from people of other backgrounds and other perspectives,” he said, “and the magic that can occur when they are combined.” Hope semi-retirement (hears occasional appeals) is treating you well.

"Lawyers Ask For Clemency For Missouri Inmate Set To Be Executed Tonight"

A black man sentenced to death in Missouri for a robbery homicide (chance saved the life of a child) was refused final appeals today on concerns about an all white jury (no dissents) and the usage of drugs/secrecy (four justices dissent, again without comment -- it's time guys). An earlier judge applied sentence of death (the jury, then with blacks on it, hung 11-1 on that issue) was earlier reversed on appeal. Update: Executed. Four justices of the USSC felt he should not have been, at least yet, but didn't deign to say a word on why. This is wrong.

"Women’s Equality: Not a Radical Idea"

A ruling on a religious claim against the contraceptive benefit in ACA is telling on multiple levels as discussed at those two links.  

First, the very judge who wrote the opinion was one of the controversial picks of Obama that could only be confirmed by ending the filibuster for executive appointments.  A modern day RBG, Nina Pollard was a professor who was an experienced advocate including in many USSC cases.  RBG was appointed to the court of appeals in 1980 (an election year) without judicial experience.  She was if anything more of a feminist icon, leading the new ACLU division on women's rights.  But, things are more conservative now, and a simple majority was not enough.  Pollard went thru 51-44.

Second, the opinion itself is important since it carefully (being bound by Hobby Lobby) shows that this claim was a step too far, any tangential burden not enough. Also, the opinion spends pages to explain the compelling state interest behind the provision, something the plurality (on this point) in HL only assumed.  Thus, we have another important "brief for Kennedy" provided for via an eighty-five page appellate court decision.

I remain having a mixture of emotions, all bad, that this is a controversial matter.  The importance of contraceptives coverage (and abortion, even if precedent allows rank discrimination on the point)  on gender equality and women's health should be obvious. Also, providing a benefit also furthers free exercise, so such questions can rest on individual choice, not what is financially possible. Finally, once the government allows an exemption, even a requirement to fill out a form should not be deemed a substantial burden.  Some tangential connection will not do it either. 

A final personal note. It is time to renew health insurance under ACA and a little screw you to New York for not alphabetizing the providers in a long pull down list, which is not the only somewhat confusing part of the process. There will be bugs, especially early on.  Only one national party (some state Republicans are not trolls at times here) cares to address such things without denial of care overall, even if the Democrats do so imperfectly. And, as to the religious exemption thing, I actually know someone whose employer falls under that rubric. Plus, the very provider I chose turns out to be a Catholic one!  So, I have a personal stake here.

"6 Ways Religion Does More Bad Than Good"

There are problems with "religion," good comes with bad, but putting aside other things have some of these issues (e.g., tribalism), it is more certain religions. Blind faith, opposition to interfaith efforts etc. is a problem with some religions. The comment thread has some over the top comments about how "religion" is horrible. I have images of some liberal minister in a sweater or something here & feel compelled to say "um wait a bit."

Still Amuse Me? "It Kinda Does"

Show continues to be great, even on repeat viewing.

Sunday, November 16, 2014

Heather Has Two Mommies

I recently read the book Jailbait, a teen fiction book about a girl who has a relationship with an older man in 1971 (about the time the author would have been that age), and it turned out to be the author of the above book. Never having read it -- it came out long after I was a child and let's just say my mom* wouldn't be the sort who would have bought it even if I was (as I was not) a big reader of children's books at a young age (still unlike many at my grade school, I already had a library card when we went to the trip there) -- it was placed on the reserve list.

If you go to the Amazon page and read reviews, which I do from time to time, one complaint (even in one case by someone saying she's lesbian) was the discussion about artificial insemination. The reader of the version nicely performed in that video would be confused. There were also complaints about the B&W pictures, which was curious in the 1990s, but perhaps was partially a price deal. The 20th anniversary copy was in nice color and the story of a little girl with two mommies and learning how there are all types of families was well done. But, hey ... what?
I cannot applaud her choice or her reasons, because the eight rejected pages matter. Warmly and tenderly, they recount, in words and in pictures, the friendship of two women, Kate and Jane—their growing love for one another, the joining of their lives, their desire for a child, the pregnancy of Jane, and the birth of little Heather. All of this is in the excised material. Clearly it is germane, even indispensable, to the ensuing narrative. By leaving it out, the anniversary edition eviscerates and impoverishes the work, and its glowing re-touched illustrations do not make up for the loss. Something that matters far more than color has been jettisoned here. To reject these pages is to forgo the haven, the nest, the matrix that the expectant partners first wish for, and then prepare for their child. One enduringly memorable image that was omitted shows Kate stroking her partner’s distended abdomen and feeling the thump of the unborn baby’s kick.
The article notes that the b&w added something too, but though I can see how it might (see also, the power it gives to some old movies),  this part of the book is more notable.  The color scheme works as it might not if an old film noir. I don't know if the resulting message if rightly deemed "trite," but learning about her origins story does add weight to the whole thing.  And, even more troubling, unlike the 10th anniversary edition, the excision isn't even referenced in the author's comments!

In the 10th anniversary edition, as helpfully explained in that article (the Wikipedia page does not include such information), does recognize the change. The author explains she got a lot of negative feedback on the subject and that felt the book would get wider exposure without it. Same sex couples having children, including by this route, is a lot less controversial these days.  The section should be added back, or at least that version offered, since it provides a more complete picture.  I can imagine, for example, some couples who already have a child -- perhaps by a former marriage -- decide to have one this fashion. So, the child knows what is going on.  Is it really too mature for all readers? As the article noted:
two women, one a doctor, the other a carpenter, fall in love and decide to bring a child into the world and raise her together
is the complete story here. I can see how something like artificial insemination might be somewhat tricky to explain to a four year old though would have liked to see how it was done here.  But, there should be a way to handle it -- books portray mommies and daddies having babies without going in much detail about the science of it all, yes?  The child listening is likely in various cases to wonder about Heather -- where did she come from? Now, this version can offer an easy alternative -- though she looks like one of the moms, the reader can assume they adopted Heather.  Still, some might know a two mommy couple where one of the mommies -- like in the original -- where one is pregnant.  Why not in a book?

I understand why the author changed the book though less clear why the original seems covered up -- like an embarrassment -- in the 20th anniversary author afterword.  This part troubles me.  Anyway, some of the original critics partially won -- though some (including more than one that moved past narrow definitions of "marriage" to saying there was no "family" here -- apparently, for some, even a widow raising children with a grandmother to help isn't a true "family") continued to find lesbians as sinful and not for children.  There is a certain depressing irony there.

As with the article, I do wish the next edition -- perhaps in honor of same sex marriage and parenthood being respected by the Supreme Court -- goes back to the book's roots.  The color is fine though. Hope I can find the original.


* I am not a big fan, even here,  about being overly personal, but have noted in the past that some people in my family have different views than I on certain topics. Simply put, though her views on civil unions have changed, my mom does not have the same views as me on homosexuality. She actually stop going to a nearby church because it accepted same sex marriage, eventually going back to it because she did not feel comfortable other places.

I found all of this a bit absurd, but understand it. Religion and other beliefs is not always about stuff that is that rational.  This sort of thing also helps me empathize somewhat with others with different views, including those who are simply wrong and at times want to hurt others. It turns me off, though you know empathy and all, I understand it, when some respond in a very visceral way to this. That is, you can see the spittle, and basically these people are disgusting troglodytes.  Life is a tad more complicated.

Rev. Joe: Film Time

Yup, on again: it's one of those Hallmark films that are on over and over again. Deservingly so. It stays mostly loyal to the book, except it tones the religion down somewhat and tacks on a somewhat forced late complication. Still, enjoyed it, both for the performances and its fresh/real flavor. Also, a comfortable "PG" approach (spend the night? surely not!).

Saturday, November 15, 2014

Bit early & not even Thanksgiving, but ...

Didn't get into the book, but enjoyed this Hallmark film, in part because it is really two stories (with a bit of a third), so there is just enough material without filler or extended required complications. One couple better, but all pleasant. Repeat favorite.

"Affordable Care Act’s Cost of Coverage to Increase in 2015"

Insurance costs would have rose regardless; with ACA the costs decreased on average. But, hey, catchy misleading headline on your main page NYT. Don't worry. The increased "hurdle" here for re-enrollment has nothing to do with your "just reporting the news" headline. Anyway, "Obamacare" has all these issues. "Free market" care is pony-land.

Friday, November 14, 2014

"Florida finally completes execution 22 years after murderer's horrific crime"

As suggested by the comments to the story, hard to be that upset this guy is dead, but after over twenty years in prison, hard to tell what other than retribution is obtained. Deterrence unlikely. Last appeals concerned use of lethal injection and some lawyer issues. Allow executions, some harder cases will slip thru. Plus, the idea of the state having the basic power to take life like this seen as civilized. Many of us don't see that as acceptable.

Taking on Water

Notable how much reduction can address resource needs. Book was decent. The author is an expert and uses a "just folks" personal experience approach, if one a tad overwhelming on detail and not quite applicable (given she's in rural Idaho) to many readers. Good karma.

Twitter Purchase ...

Plain, eh. Not bad in coffee. Good review.

Thursday, November 13, 2014

A Modest SCOTUS Proposal Not Involving Babies

I agree that the "Supreme Court should allow live broadcast of opinion announcements—preferably video, but audio would do." I'll take taped at end of week. The fact that it delays is made worse in that it isn't even available on its own website (still somewhat pathetic), but only Oyez.com. Such statements are particularly meant for general distribution. Good article on oral dissents; note Justice Ginsburg (Scalia also appears to do this) giving certain bench announcement material to the press, but apparently not for general distribution. Bogus.

Wednesday, November 12, 2014

"Landrieu Gambit"

Have not kept up with the Keystone Pipeline, but putting aside that Obama seems to be drawing it out pretty far, its importance at times seems more symbolic than real. The "Landrieu Gambit" seems a forgivable move given it's only a matter of time anyway and you have to throw something to outliers in the coalition at times. And, desperate people deserve a partial pass. The post there seems to suggest the symbolic messaging is essential here. Seems to me environmentalists shouldn't be impressed much with that anyway. And, she has supported the pipeline for some time; perhaps, it's a move to have one last win.

U.S. v. O'Brien Thoughts

Given my predilections, I listened to some of the draft card burning case in honor of Veterans Day (sic).  This was a troubling case where the Supreme Court decided 8-1* that a separate punishment for burning a draft card, one that resulted here a penalty of years in prison, was not a violation of the First Amendment while the possible Eighth Amendment argument left open below was ignored (the sentence was merely upheld).  The fact that the likes of Brennan signed on to this travesty underlines that the Warren Court's liberal tendencies had its limits. 

Lucas Powe Jr. in his book on the Warren Court flagged the problem. There was already a law on the books regarding possession of a draft card and the one dissenting vote in the House against the law in question here  pointed out the excessive nature of the penalty for burning a card. The lower court addressed this fact and made the fairly obvious point (made by the few legislators who talked about the proposal if in a supportive way) that the point here was to penalize dissent.  In fact, in later days, this would seem to be a clear case of "animus" against unpopular groups.  But, this requires a certain consistency not always shown.

As noted in the footnote, the dissent went on a tangent involving the legitimacy of a peace time draft.  The draft is one of those things that a few people flag as potential 13A fodder, one person challenging me for not seeing how obvious it all is.  I'm somewhat open to the idea (though I think abortion more clearly covered) but some amount of required service here is one of those general public service requirements not traditionally deemed to fall within the amendment's terms.  The language of the amendment particularly goes back to a Northwest Ordinance limitation, one that was not applied, e.g., to the mandatory militia service. 

Following the discussion and links, which certain of us have a tendency to do, one thing that arose is the definition of "religion" and the limits of free exercise thereof.  An earlier concurring opinion, in particular, noted that a requirement to take classes in military service while going to a state university did not violate free exercise. To narrow the question, it was assumed that "no occasion at this time to mark the limits of governmental power in the exaction of military service when the nation is at peace" though a note cited possible requirements (militia in nature?) "to aid in suppressing crime." But, it is noted that conscientious objection statutes were traditionally a matter of grace.  Thus:
Instruction in military science, unaccompanied here by any pledge of military service, is not an interference by the state with the free exercise of religion when the liberties of the Constitution are read in the light of a century and a half of history during days of peace and war.
So, though voluntary state university attendance is a particularly easy case in the concurring justices eyes, such requirement for let's say teenagers in mandatory public school education would seem to appropriate too.  Something like that might be a tricky case, especially with more strict state laws, today -- for instance, recent challenges involving teaching of certain materials that clash with the religious beliefs of some such as reading certain texts or sex education.  The instruction does clash with certain religious beliefs, but ultimately public reasons are available to justify it. The concurrence cites Davis v. Beason, which as noted by Romer v. Evans, is no longer good law in full breadth (merely promoting certain views, e.g.), but there is a useful rule set forth:
With man's relations to his Maker and the obligations he may think they impose, and the manner in which an expression shall be made by him of his belief on those subjects, no interference can be permitted, provided always the laws of society, designed to secure its peace and prosperity, and the morals of its people, are not interfered with.
Thus, even acts are protected to some extent (e.g., hiring only women priests in the face of antidiscrimination laws) if they do not clash with "laws of society" of a certain basic level. It isn't merely that general application saves the day.  Also, the first part is sometimes cited to define "religion," and it seems to be somewhat narrow in that it has a theistic character.  But, I think it doesn't take too much to interpret that broadly, such as using "maker" to mean impersonal natural processes.

Let peace reign.


* Justice Douglas used his dissent to continue his efforts to promote the idea that the Vietnam War was constitutionally tainted, including use of the draft in an undeclared war. That is, the Gulf of Tonkin Resolution didn't count. The dissent here was pretty open-ended however, since it would call in question the Cold War draft in general, plus even cited an opinion calling into question a draft during the Civil War.

Anyway, Douglas in another case the next year came around to flagging the 1A problem. Listening to the oral arguments in that case, btw, might not be safe for work -- volume up, hearing repeated reference to "niggers" etc.

Tuesday, November 11, 2014

Quick Reading Thoughts

The Internet etc. led me to read less books, but even before, reading 100-200 boring pages to get to the good parts and for other reasons was not for me. Do try to read all of the books (including notes) of those I do read completely. Also, do respect YA, which is as varied as any sort of genre. See, e.g., here with a good quote and book (Converting Kate). Instant gratification btw also sorta ruined me on various movies too.

Tag is How to Truly Honor Vets

Monday, November 10, 2014

Redemption Songs: Suing for Freedom before Dred Scott

All the specific details at times become a bit overwhelming (a "cast of characters" might have helped) and the rhetorical tone at times a bit annoying (plus "Dred Scott" did not "end" the songs as is clarified on the final page). But, there is a lot of powerful history here and overall it's a worthwhile read. Also, it comes in more digestible installments then her "Mrs. Dred Scott," which by necessity is often not about her specifically anyway.

Mets News

The Mets have struggled but had some bright spots in recent years (e.g., a CY Young winner) and so it was this year with a gold glove CF and rookie of the year. But, ROY wasn't the biggest news -- surprisingly, they signed Michael Cuddyer, who people thought would take a "qualifying offer" (he got an additional year). I don't really care about losing a draft pick (15th overall! wow!), especially if this is only an opening gambit. LGM!

"NY" Sports Update

The Jets' had their "every dog has its day" game yesterday though had to sweat in the 4Q to win it -- a goal line stand, a penalty overturning a successive onside kick etc. helped. This was necessary since they scored only three second half points, which only made up for the three they gave up because of dubious time management at the end of the first half. And, defense was key to many of the points. So, though he helped, quite arguably Vick starting was not the major difference here. Giants continued to lose against decent competition.

Sunday, November 09, 2014

The Lady in Red

Looking for works of John Sayles led me to this little "B" gem that is thinly based on girlfriend of John Dillinger (the actual "lady in red" was another woman). Lots of nudity, but Sayles provides a lot of social commentary and a feminist touch. So it's nutritious. DVD has two commentary tracks, both duos, one has Sayles, the other Robert Forster who has a good little role here as a hit man. It is Christopher Lloyd (Taxi etc.) who has the role as the sociopath.

"States’ rights—to block the flow of federal funds to their citizens?"

The horrible grant of a non-circuit split lousy statutory claim that the DC Court of Appeals is hearing en banc (the desperation is rank) makes it harder to analyze it somewhat objectively, but this does a good job. Here's an argument it could bite Republicans in the affected states. Meanwhile, let's not forget about the Medicaid ruling. Or, rather, its victims.

Friday, November 07, 2014


6CA losers will appeal to SCOTUS. Meanwhile, SCOTUS -- without a circuit split (which is okay) -- grants cert. on key ACA issue. A stupid and troubling grant. Good article on incoming Rep. Love. Useful way to attack her as not truly representing local interests.

Thursday, November 06, 2014

6CA Upholds SSM Bans

The picture comes from this guy's Twitter, where there has been a "waiting for Sutton" watch for quite some time. SCOTUSBlog summarizes the majority nicely though we can look elsewhere for more color commentary.

The dissent found the opposite view so "obvious" that she suggested Judge Sutton (Federalist Society up and comer with rational cred given he upheld ACA) joined by some other conservative (though votes supporting SSM has come from various presidents' appointees & a Carter appointed voted against it) was aiming for a circuit split. She even suggested, could have did without this, at the end that the majority didn't properly honor its oath to protect constitutional rights.

Strong differences doesn't mean lack of respect of oaths. It can mean a certain blindness.  So, how does Sutton do? Some of that was there.  As the dissent noted, the majority opinion did sound like “an introductory lecture in political philosophy,” though a somewhat pompous tone was generally acceptable to many when the 7CA was involved. The 4CA was mostly a straightforward approach. The 10CA had some more meat.  This one had some style, but overall read like a too smart for its own good graduate school essay at times, one that simply did not address key points.

It is overall somewhat better than the Puerto Rico ruling that just went off the rails after its "we are bound by Baker" beginning. Sutton could have done with more minimalism. The idea that Baker v. Nelson is so dead that it only "lacks only a stake through its heart" is fairly obvious by now. But, fine, the Supreme Court might have gave Griswold broad application to the unmarried, greatly expanded gender equality and recognized homosexuals should have basic rights like the rest of the population. It never nailed that stake.  That's almost credible to feel bound, but best to say little else.
When the courts do not let the people resolve new social issues like this one, they perpetuate the idea that the heroes in these change events are judges and lawyers... Better in this instance, we think, to allow change through the customary political processes, in which the people, gay and straight alike, become the heroes of their own stories by meeting each other not as adversaries in a court system but as fellow citizens seeking to resolve a new social issue in a fair-minded way.
There is a lot of this sort of thing while the deck is stacked against gays and lesbians. It is noted that by the time of Lawrence, only eleven or so states still had such anti-sodomy laws on the books. Marriage is still developing here.  But, later Turner v. Safley (without citing the long paragraph that explains the various reasons marriage is protected, better to suggest it is "rational" -- in a "think about the children, Justice Kennedy" extended section near the beginning of the dissent, the speciousness of this was underlined -- to deny SSM since marriage is about one thing) is cited and "strains credulity" that a year later a same sex marriage claim would win. Yes, since that was right after Bowers was decided.  Still, even before then, Justice Powell in the other case cited worried the strictness of the Court's protection of the right to marry would do away with bans involving gays.

A lot of water under the bridge since the mid-1980s. Lawrence v. Texas brought -- unlike in the days of Baker v. Nelson -- gays within the ambit of privacy decisions that Bowers felt was "specious." We are told "not a single" justice has written anything that challenges "traditional marriage" and the path argued for here would greatly expand congressional power to enforce rights against state action in this context. The dissent cites coverture and a long passage in a recent concurrence showing how various aspects of marriage "traditionally" honored is now seen as unconstitutional.

There is just too much spin and preaching in the opinion.  The "only" way to explain Windsor is federalism, even if the concern was Romer level animus. The truth is that state control (up to a point) in marriage was an aspect of the ruling.  It is a "guessing game" to say Baker v. Nelson is no longer binding. A citation of marriage as "fundamental to our very existence and survival" shows "marriage" was assumed to be opposite sex marriage since apparently that must only mean "procreation" though it is also seen as essential for those who don't conceive. 

The dissent basically noted that it isn't really necessary to say anything new at this point since the general reasons why SSM should be protected, including the irrational basis of the "what about the children" rationale (see 7th Cir.) has been covered by various opinions by now.  The majority has an tired feel too. Schuette is cited to support democratic decision-making, though there we are dealing with something presumptively allowed (doing away with affirmative action), not the question itself at issue. We even have "what about polygamy," which apparently the claimants have no answer -- since many have explained what is different, b.s. again. 

There are novel touches. Discrimination against gays and lesbians is readily admitted, but that doesn't mean on this issue in particular there is need for heightened scrutiny. A sort of "on some issues" test for standards of review? Also, "traditional marriage" rules grew outside of that, as if ancient beliefs as to gender and sex roles, including the standard biases etc. did not develop within the same overall context.  And, though we are talking about a range of benefits here, quoting one party, apparently "dignity" is the real issue here.  Better to get that from an emerging consensus than the courts.

The dissent notes that "animus" is not mere ill will and malice (the majority might not want to find that here, but to me a true accounting would show it), but the lack of a legitimate purpose, one not based on relevant legitimate facts which doesn't properly respect some group on a constitutional level. That is found here, including constitutional amendments (she notes how hard they are to override, putting aside the limits of majority rule) that go beyond the usual traditional practice of letting marriage rules develop by normal legislative practice.  The "usualness" of the amendments were seen by the majority by nose-counting, not by how as whole the states were singling out a group -- sort of like legitimizing prejudice by force of numbers.  Fear of the courts pushing change cannot be the only answer. Great changes, including as applid to marriage, was trusted to normal legislative action. Why not here?

The wait to release a decision that some felt was due like last month or so probably was to let the elections pass (USSC cert. denials of other circuits plus the 9CA ruling underlined it was time to release before now and they heard oral arguments long enough ago) and there was no split decision here. No suggestion that civil unions or domestic partnerships would be necessary or at some point classifications become unreasonable because of a sort of half-ass half of a loaf policy. For instance, to quote the dissent,  "Michigan statutes allow married couples and single persons to adopt, those laws preclude unmarried couples from adopting each other’s children."  A major reason why Baker v. Nelson isn't the end point -- the "question" has changed. "Animus" (barely a thing then) et. al. had to be covered anyway, but the exact same question is not at issue. And, that is what has to be for a denial for lack of substantial question to count, even putting aside the clear changing doctrinal developments.  No guesswork necessary.  

It's not surprising that both SSM and recognition of SSM of other states was rejected though there has been some argument that existing marriages provide an easier case. The traditional rule is that states don't have to recognize marriages they themselves don't. But, what of those who selectively target SSM here? Take Ohio here -- they don't recognize first cousin marriages, but recognize them over SSM. The majority held that "incestuous, polygamous, shocking to good morals, unalterably opposed to a well defined public policy, or prohibited” marriages are covered here and SSM counts.  Fine company!  Lawrence suggests "shocking to good morals" can't be the reason, so it has to be "well defined public policy," but selective rights for same sex couples challenges how "well defined" it really is.  Sutton doesn't try to go mano-o-mano (probably smartly) with Judge Posner here.  We are left with a weak "wait and see" ground.

The couples can seek out en banc and it is not clear how that would fare -- the 9CA is often a target of potshots, but the 6CA is a bit of a joker circuit too.  But, advocates pushed SCOTUS to hear the cases without a circuit split on the core issue and apparently they want [update: less clear perhaps] them to hear this one as soon as possible too.  As the dissent did with an allusion to Martin Luther King Jr.'s letter, they think the time for waiting is over.  Well, a circuit split was bound to happen eventually.  Amazing only two rulings against before this one as it is.  Let's hope Sutton is on the "wrong" side again.

Bit of a bummer week. And, Mark Sanchez led the Eagles to victory too!  Well, that is a bit off topic, but still for any Jets fans.