"Long Live and Prosper"

Leonard Nimoy had a long career, on both sides on the camera (he directed the third and fourth Star Trek movies, the fourth particularly fun, but also other films). I have seen some of the films he directed and also believe I saw him in In Search Of, the documentary series. But, mostly think of him as "Spock." He discusses the Vulcan salute here. LLAP. He did so.

RIP Leonard Nimoy

"Framing Suzanne Mazzola’s Death in Childbirth as a Martyrdom Is Disturbing and Dangerous"

There are various accounts of this tragic story and this one (I commented too) is particularly wary about using her as a martyr. It's unclear when she knew her pregnancy was dangerous or what sort of risk she took. Or, her true feelings. But, some do take risks here and it's their choice. Hopefully, they will act with enough insight, but we know that is often not the case. "Choice" itself often is a sliding scale involving things like social pressure and fiscal means.

"Can life in prison be worse than death" ... for Dzhokhar Tsarnaev?

One of the few posts in this blog that got a few hits over the years was one on the question of life imprisonment being worse than the death penalty. This came to mind after the subject question was posed elsewhere. Someone actually involved in defending those on death row added his .02. But, perhaps mine own is worth something as well:

I do think life can be worse than death -- support of euthanasia shows that.

Solitary confinement is a special factor here, but I don't think the average person who is in prison for decades has it very easy either. Especially for some, long prison terms can be very hard, leading to mental problems and as seen by a recent post, things like rape or other abuses. So, the argument proves too much on some level.

It would seem that many in prison for time years have it harder than some of the "worse of the worst," since some of the latter are executed after a certain amount of time & in various cases reside in arguably better (see the sexual offender post) conditions before they do. But, we don't want to increase executions for robbery to ease the treatment of these people. So, execution doesn't seem to be the answer.

But, it does remain true that being in prison can be worse than death. This suggests those who think "abolitionists" are softies are a tad misguided. Those confined, such as the murderer in the American Sniper case, still are treated as persons, with interests and a chance to be redeemed in some fashion. They might get out at some point. And, if there was a mistake, they will be still around when it is determined. And, most on death row don't "volunteer" and end all appeals.

I'd add that Tsarnaev is a special "worse of the worst" case for which the death penalty seems a tad less horrible than a case like the murder for insurance that resulted in the woman in Georgia whose execution was held up for a least a bit. Seems a special reason to execute here though even here there are practical  problems. Timothy McVeigh, who murdered many more people, was eventually executed, but this is going to be a long drawn out affair.  The death penalty is not likely to be a threat that would help confessions or guilty pleas too much -- the person who this did seems the sort who would want the publicity of a trial. And, he's no kid, but someone who murders at around twenty still can be immature. 

But, ultimately, killing people is wrong when not required by necessity or personal choice in respect to euthanasia, especially when it is carried out in the problematic way as this nation's death penalty is. I'm willing to rest on this, and at the end of the day, it is what one should rest on in some cases at least.  Not everyone on death row are the "worse of the worst," but some pretty much are.  Citing some sort of "leniency" argument for the death penalty doesn't really work though it can help the defendant's side, partially since it has some bite.

Anyway, other than those sentenced to die being able to opt out of further appeals, and some limited appeals and related oversight should be present whether a defendant wants it or not, this isn't euthanasia either. People don't quite choose whether or not to be sentenced to death. 

Shahar v. Bowers

I mentioned this case in my summary comment yesterday that noted that the former attorney general (the "Bowers" of Bowers v. Hardwick*) has come out against a "religious freedom" law that (memo in the article cited) he shows is an invitation to discriminate. Such laws are more "religious freedom for some" laws as seen when hypos involving racial discrimination arise. Those truly concerned about religious liberty should care about this. We need push them or call them out as phonies.

Anyway, the case was cited because it will be mostly forgotten (the article cited with his comments included) in the coverage with Bowers being the focus. The link in the footnote provides some background and shows that even in 2001, Bowers didn't want to rest on his laurels -- he argued then that he was simply defending the law, which was his job. The case itself arose out of unusual facts -- police don't usually have a chance to see the sex act performed in person except in cases of public sex -- but there is clear evidence that Hardwick was particularly targeted for being gay. This underlines how discriminatory these laws are, even if facially neutral.

Thus, it wasn't really just a "test case" involving someone who never was ultimately convicted of the act though many (including Justice Powell) saw it that way.  Still, Robin Shahar as staff attorney (she eventually got another government position elsewhere) had a more tangible case -- she lost a job after Michael Bowers found out she has a private religious same sex marriage ceremony. She made a claim on equal protection, intimate association and free exercise grounds but lost when her case went en banc. It came out that Michael Bowers himself was having an extramarital sexual affair -- illegal in Georgia -- but this did not help her legal case in the end.

The case developed through the 1990s, eventually ending up being decided after Romer v. Evans. But, the appeals court ultimately rested on the grounds that public employment sets up a balancing test that the government met.  Her marriage ceremony was a "disruption" to the office and the public might assume she was breaking sodomy laws (which the state supreme court soon struck down in 1998).  The appeals court was strongly divided, strong dissents citing her various claims. This article provides some background and argues the marriage also could be protected as a "speech act," an expression of her status and union.  

"Shahar" itself was a new name the couple gave to themselves -- it means "seeking God" and is a reflection of their Jewish faith.  The marriage ceremony was in 1991.  Same sex marriages were not just something that arose in the last few years. This case shows the various aspects of marriage, including its religious, associative and expressive aspects. The treatment of Robin Shahar also shows the illicit discrimination involved. Why was she fired?  Breaking the law? Really?  Did people known to have sex outside of marriage not get hired?  Fornication was not legal.  And, as the article cited (and the one cited yestersay) discusses, she wasn't purporting the "marriage" was official or making some grand activist statement. 

The important rights at stake here set up a balance that should have gone her way. Luckily, though one should not be surprised if a same sex marriage still led to negative reactions at the work place (especially with so many states not having anti-discrimination protections here), the intimate association rights of same sex couples have much greater constitutional protection today after Lawrence v. Texas.  But, we still have some ways to go and this case should be kept in mind, especially with MB in the news.

[One more thing: There is a reasonable case to be made that Bowers was just doing his job back in the early 1980s defending the sodomy law. There was a policy not to prosecute such cases and Hardwick was not prosecuted, a thing Justice Stevens cited to note the weak grounds of the law.  But, someone did lose her job here and it wasn't "just his job" to do that.  So, Bowers has more to answer for this matter.] 

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 * "Michael Hardwick cannot reflect on the case that bears his name: He died in Gainesville, Fla., on June 13, 1991, reportedly from complications from AIDS. His obituary did not mention either his sexual orientation or his role in challenging the sodomy law." 

Health is at times cited as a reason to be against same sex relations, but it was not the argument put forth by either Georgia or Texas in the cases that  reached the Supreme Court. The laws rests on "morals" and have a sex discrimination component at that. Lesbians have the safest sex.  Bans also generally, as here, make risky behaviors more so.  

And, this interest is at best a bad fit, many unsafe behaviors not included.  For instance, the issue of public sex was noted above. That is seen more here since same sex behavior is looked on with disfavor and (more so in the past when it was often illegal) something that had to be done on the sly. This led to unsafe sex on a regular basis, including in parks or restrooms.

Michael Bowers Now Supports Gay Rights?

The "Bowers" of the infamous Bowers v. Hardwick anti-gay rights case is now strongly against a "religious freedom" bill that he sees as an "excuse to discriminate." Let us not forget another case, where he hypocritically took back a job offer after finding out the woman had a private religious same sex marriage ceremony. She too is still around in the public eye.

"One Justice, Two Justice, Red Justice, Blue Justice: What Congress Should Learn from Dr. Seuss about Writing Statutes."

Strange match-up in the "fish case" with Alito (former prosecutor for the defendant here) splitting the difference in this "close" case and Kagan with a "super-snarky dissent" joined by Thomas, Kennedy and Scalia (first time ever?). Some of her remarks seem tailored-made for the King case. On merits, especially since this isn't an 8A case (guy got thirty days, whatever the statute leaves open), I still am with the government. Still, open to majority position.

“Originalist or Original: The Difficulties of Reconciling Citizens United with Corporate Law History"

This interesting article was raised/commented on in this thread. One thing that both flags is that current reality, including SCOTUS views, of corporations has changed as that institution has greatly developed over the last two hundred years. A few basic things might have remained the same at best. Ultimately, the article answers Scalia perhaps, but the "right" answer requires more for the non-originalist or an originalist living in current times.

Oscars Films: My Views

Saw parts of Ida (foreign film) and Boyhood (can see the talent, but bored after a short time for what seems like basic family drama nearly three hours). Overall liked Wild and Into the Woods. Begin Again (song nominated) was a bit of a mess. The Lego Movie (another song) looks like it would work as a short. Might watch or read a book based on a few more, but not really excited about most of them. BTW, nice to see JK Simmons, Mr. Supporting Actor, won.

Oscars: Quick Recap

An article on a troubling Selma copyright issue. Have seen few of the films nominated & have not been as up on the Oscars in recent years. But, from what I saw, including a fun musical intro, some quirky presentations/speeches and Lady Gaga looking almost "normal" honoring Sound of Music, looked pretty good. Selma song too. Patricia Arquette (the one Boyhood win) fit in some social stuff in a long acceptance speech. Best Actor win a bit of a surprise. ETA: Overall, Oscars often start well & then amount to some gems in three hours of remainder.

Movie Quickies

Contracted "could have been excellent," but too much stupid. Didn't watch the last 20 minutes. Peacock was well cast and had an intriguing premise regarding sexual identity, small town psychology etc. But, not only was lack of lightening in many scenes annoying, it was pretty dull. And, looking into it online, the "reveal" is pretty depressing and takes away from the interesting aspects of the film. Monolith Monsters was a fun 1950s thriller.

"The Best of Josie and the Pussycats"

Never a big comic book fan, but the title collection was very good -- it has various "firsts" from the comics' beginnings c. 1960 to a nice story thirty years later. Like the use of music notes to show Melody's melodious voice. Fan of the cartoons and wish they were on again.

Books On the Side

A lot of false starts in recent times regarding getting into books -- with so much time online, hard copy materials -- even those I read before -- not the same for me these days among other reasons. But, manage to read a few pretty good books in recent months.

In Honor of Lent ...

His comprehensive respect of freedom of belief is noted here.

Favorite "Straight" Couple Back Again

AfterEllen episode recap time. With multiple posts at that blog on the subject, comments deep down here on Windsor. Polygamy and incest yet again pops up in SSM conversations.

TV Watch

Watching a bit more t.v. of late. The new episode of I Didn't Do It was decent though it did not start in the usual "the end/let's look back" fashion. New owner a bit annoying. Mostly getting into Better Call Saul (the woman lawyer is a promising character). Rizzoli & Isles new episode decent; everyone but Lorraine B. looked a bit less glamorous. Never really into the season long "plot arcs" but NCIS worked overall yesterday. Basically murdered the guy though.

Reducing Gun Violence in America

Shorter clip. At one point, he not only frames it as a public heath issue, but notes we are not as violent as some countries; problem is also how we deal with the gun issue.

Don't Be A Maybe!

Nauseating packaging is an interesting touch.

The Rewrite

These days, you can watch a lot of films in the theaters on demand, which makes average films or short docs on General Tso chicken (seriously; pretty good) more worthwhile. This review hits the "not bad" feeling I expected, which works for this sort of somewhat expensive home video price. Query: what ISN'T J.K. Simmons in?

Hallmark Valentine Movies

The channel has lots of films, some of them enjoyable on various levels. Checked parts of some yesterday. Lacey Chabet (very good in Color of Rain, which impressed me though it tacked on a made up complication that was somewhat forced) was fun in All of My Heart (Ed Asner still is playing crusty old guys), the new one. A bit too cheery early, including having the means just to up and leave her job as a young assistant chef, but the duo had good chemistry and the plot was fairly well paced. Chabet is now a pro in these films, but the guy is good too as are a few supporting roles.

Cloudy With A Chance of Love was decent -- it was a bit weird (though I saw her in a hearing role before -- in real life, she has some of her hearing) to see the "deaf" actress from Switched At Birth (like The Fosters, liked this show for a while, but grew tired of its ABC Family style melodrama) in the lead. She plays a doctrinal candidate who fills in as a "weather girl" and has to find the confidence to be herself. The plotting was more boring -- seemed to drag especially with commercials -- and I turned it off before some expected plot developments.  But, the lead was appealing and there were parts of the film that were enjoyable.  Mid-range effort. Nice to see Gregory Harrison (first saw him on the Trapper John t.v. show years back) again -- he was a supporting cast member in another Hallmark movie too.

Away & Back is somewhat a take-off of Fly Away Home, the 1990s Jeff Daniels help save the birds film (a fictionalization of a core of truth; the whole family story that is -- the young girl grew up to be on True Blood). Given past roles (down to being the lead human in the chipmunk movie), seeing Jason Lee as a serious widow of three is a bit strange, but he handles it well.  The brainy sexy one from FNL playing the ornithologist works a bit less but she's okay.  I shut it off when the "vegetarian" decides to have a corn-dog since you know "not much meat in it." Seriously? 

The late nite feature (well, old-time style -- ten to midnight)  was thanks to Svengoolie, an amusing throwback host of horror films with a comic touch. The film this week was Captive Wild Woman, which sounds like the literal translation of some foreign movie or something. I caught most of it (the throwback channel shows Wonder Woman too and last night Debra Winger, looking quite young, plays her baby sister) and it was fun. A problem is that you see too little of the actress who plays the ape transformed into a woman, Acquanetta, who spends most of her screen time staring at things (she doesn't speak). Query why a transformed ape mesmerizes lions and tigers.  The film only has about an hour running time, a significant part stock animal footage.  Ends on a somewhat lackluster note.  

Acquanetta later was later well now to the Phoenicians.  While that movie was on, the "old" film of the usual Saturday night duo on PBS (at 9, you'd have a Clark Gable film or something; at 11, some indie or fairly new foreign film) was Broadcast News, which I checked out during commercials and such.  Might have actually seen it in the theaters; if not saw it some time back. Darn Holly Hunter was cute there. A reference to "date rape" as a "new" story idea suggests it is not too recent -- late '80s, which is probably "classic" for some people these days.

Finally, Crazy/Beautiful, on one of the pay channels, after the amusing Dick (as in Nixon) was over.  I checked out the beginning of the film before going to sleep.  Starts out well with a great dramatic role for Kirsten Dunst (also in the film before), but one rating guide notes that it drops off later.  Don't recall myself -- do remember mostly liking it.  Spoiler -- looking at the plot at Wikipedia, the reviewer might have not liked how -- after a fairly dark and honest beginning -- the film ends up with a sort of happy ending. Well, it has a good edgy feel early one, both for the troubled girl and the from the other side of tracks but having a serious plan for a future male love interest.

A good end for Valentine Day's viewing.

Acquanetta

Acquanetta

"Madison's Music: On Reading the First Amendment"

The idea behind this book by Burt Neuborne is worthwhile. He argues that the First Amendment should be read as a sort of poem that is a comprehensive message of freedom and democracy, an overall approach to be taken for the Bill of Rights and Constitution as a whole.  It starts with a touching page long dedication to his dad (a taste: he promised his young son that they would see the Giants when he came back from WWII, but did not since they weren't integrated -- BN's future career in civil liberties was in his blood).  It's entitled: "Odysseus the Tailor."

And, it has an extended section later on that skewers Marbury v. Madison as a result of some self-interested politician sort, who was not being honest about various things (e.g., the basic argument that the request for relief was unconstitutional was far from clearly the case).  Neuborne's long record in front of the courts, including the Supremes, surely influenced the bemused and somewhat cynical tone here. I don't think it that surprising, nor that Marbury is quite as bad as he makes it out to be. Not that he's alone in slaying that dragon. Perhaps, though, it is one that needs underlining, especially when I see some people given the courts the unique rule to decide questions of law and/or ignore how others affect that. Others overcompensate.  Go in between!.

The message: be careful and remember we can merely trust the courts.  This is well taken though -- and this begins the negative --  Yes, all are involved here -- "We the People," each branch of the federal and state government and so forth.  This is why the whole Alabama same sex marriage issue from the federal judge's order, Roy Moore's response, the actions of the probate judges, the commentary from various sources down to the general public (not the least the couples involved!) are ALL important here. And, this provides an important role for the democratic republican protections, including structural, that are found in the Constitution.  It also advances the progressive view of campaign finance reform, voting rights, individual rights of conscience and so forth.  The current Supreme Court is of mixed value here.

The document is not crystal clear.  Reading it as a whole and looking for an overall theme helps.  The First Amendment is the the only "poem" here. The Bill of Rights is not a bunch of isolated protections. The Fourth to Eighth Amendments is in effect a series that cover everything from investigation to punishment. The First Amendment factors in the formulation of the laws being enforced there from their creation, the religious and secular [the author argues the Ninth Amendment provides a rule to interpret rights enumerated broadly and by analogy, so the 1A protection of religious free exercise would be expanded to secular conscience] guiding our actions, the press [he argues it is an institutional concern contra some who see the protection as a matter of technology] both informing and checking government etc.

And, the 2A ensures the law and public safety is enforced by a force that includes everyone, not just a special class.  It too is a democratic protection though he favors the "militia" approach while accepting the individual rights argument if the alternative is not to have it mean anything today. Other constitutional provisions are also part of the whole here as well. He thanks Scalia for forcing him to take a close look at the text though also Prof. Akhil Amar, who likewise finds a way to proclaim a respect of the text, as well as an argument that others are missing important things, while finding a lot in there Scalia does not.

The author does this, criticizing various decisions of the Supreme Court etc., often not really showing his work.  Note, e.g., how the "press as institution" approach is debated. One glaring example is the idea that Secretary of State James Madison was arguably a "minister" as that word is used in the original jurisdiction provision, which is news to me. The term to my knowledge is only used here as something that means some sort of diplomatic official. He argues that Marshall's opinion basically gave Marbury no one to go for relief, but only apparently because the local judges that might have authority to rule on his claim were self-interested (either as a Jefferson appointment or Marshall's own brother, who would have to recuse himself ... though unsure why if Marshall himself wasn't given his role in the whole affair!). 

The book repeatedly -- I read a few chapters and then skimmed -- had moments like this.  The focus on "Madison" alone is a bit annoying. He notes in passing or in endnotes little qualifiers here -- like how Madison himself wanted to mix the provisions into the original Constitution and Roger Sherman pushed to have them listed separately. The "music" would be a lot different if Madison's approach was used. Likewise, reference to the importance of the "first" amendment, when MADISON et. al. originally had two other amendments (one that wound up as 27A) first.  Again, BN notes this in passing, but it sort of robs a bit the Madison poetry bit.

The whole result is somewhat garbled, I hate to say, a sentiment expressed since I like the overall idea of the book. Was wary about it in the first place, since such efforts often are somewhat a trudge -- the ideas attractive, but reading a whole book somewhat repetitive and tedious. The book is only a little over two hundred pages plus notes, so that helps, but its brevity is a problem since it is full of conclusionary comments and references (the endnotes helpful here, one paragraph or so eluding to a range of court decisions) that are not self-evident.  The good parts are useful and the rest might be better for the general reader with less familiarity than I, but then, they might not catch some of the problems either. What do I know, right? The book has received accolades from people who studied these subjects much more than I. Then again, I have found some of these professor types lacking at times.  The author would welcome such criticism, surely!

Left with a negative feeling and a belief there are better platforms for this sort of message.  Hopefully, since this one -- though I surely respect the life and career of the author (one who has commented on these subjects for years) -- is flawed. 

Darwin Day

It is something of a coincidence that Charles Darwin and Abraham Lincoln was born on the same day. Since we now have a "Presidents' Day" to honor Washington and Lincoln (even if some other President has a birthday in February), today can be "Darwin Day." The day "is global celebration of science and reason."  So, it goes beyond evolution.

Edward Larson has written various things about evolution and the wider battles arising here and aboard from scientific conflicts.  This includes the award winning Summer for the Gods: The Scopes Trial and America's Continuing Debate Over Science and Religion. There are also various court opinions on this subject from the Scopes trial to teaching evolution at all to a need for some "balanced treatment."  And, more cases on this subject and other questions of science and reason.  Religious debates often arise here, e.g., "Christianity" deemed threatened by certain education.

The link to the actual state court opinion from the 1920s is interesting reading beyond reference to "rhetoric exposition by iteration."  The opinion punted by finding the trial judge illegally applied the fine, the case ending on that point since John Scopes was no longer in employ of the state. He later wrote an interesting autobiography, Center of the Storm, where we find that this small town school teacher later studied geology then worked as a geologist with the United Gas Company until his retirement.  

The Scopes opinion did uphold the law itself, one that prohibited schools to teach any theory that denies the story of the Divine Creation of man as taught in the Bible, and to teach instead that man has descended from a  lower order of animals. The opinion gave little respect to in effect an academic freedom argument, Scopes merely being an employee of the state.  The law -- contra to a later Supreme Court opinion -- also didn't see it as furthering a certain religious belief -- lots of religions believe in divine creation. A concurrence even argued that evolution itself need not be a problem, since it could assume a divine creator! A judge dissented in a brief opinion, arguing that the law was unconstitutionally vague. 

It is somewhat dubious at best to say that a law that singles out one story of "the Divine Creation" isn't favoring some religious beliefs over others, even if it is doing so in a less blatant way as some other law. Still, it is notable that even in the 1920s a means to have religion and science living together without some "inherit the wind" situation was deemed possible. The part of the opinion that accepted constitutional provisions that required acceptance of the divine, even to hold public office (a sort of test oath) is trouble. All the same, as shown by the number of scientists who believe in God (a sizable number as noted by Larson in one of his books), science and religion can be live together, even if somewhat strange bedfellows.

See also, Darwin and his wife (strong believer in God).

"Friend: This Was No ‘Parking’ Murder"

Powerful article, but that photo. That's image deserves to be a keeper.

John Oliver Returns -- Still Got It

He flagged that via a provision of PPACA (sic) there is a website where you can look up doctors and see what they’ve been accepting from pharmaceutical companies.

"Supreme Court Won’t Stop Missouri Execution Over Drug Secrecy Concerns"

Four justices, who should explain themselves, would grant a stay. Four justices (later more) stayed executions elsewhere to examine such lethal injection protocols, but apparently in some fashion this is argued to be different. Again, secrecy is a problem here. Meanwhile, talk of nitrogen gas and firing squads. Update: He was executed. Step up dissenters!!!

People's Brief in Support Of SSM

Barack Obama was "bullshitting" his opposition to gay marriage and support for civil unions during his 2008 presidential campaign, according to a new book authored by former senior White House adviser David Axelrod.

The biggest reveal here -- since the fact that pols soften their positions for political reasons etc. is not freaking news unless you are six years old -- is that Axelrod convinced Obama to do this, even though he found it hard to b.s. He comes off as a reluctant b.s. artist. We are supposed to be "cynical" about this sort of thing.  I'm just annoyed at people who suggest we are supposed to be surprised or even that upset at this.  Come on.

I have seen comments about how upset people are that Obama "lied" here (even the "hopey changey" guy -- not St. Obama!!!!) as well as how he flipped flopped on marriage from back when he was Mr. Nobody in the '90s.  Shut up!  I'm so sick of the same old crap.  Bottom line, he and his administration did more for the rights of each letter in the GLBTQ movement than any other.  They are pushing for the rights of transexuals. The Administration stick their neck out on DOMA, pushing for heightened scrutiny for sexual orientation.  Pushed for the end of DADT.  etc. etc.  Even in his campaign bio when he opposed same sex marriage, Obama said he was open to change on the point.  To be shown to be wrong or outdated.

Worry about this guy -- Sen. Ted Cruz and his push for an amendment to block judges from upholding marriage rights.  Does he actually believe this crap (like his supporter "reasonable" Eugene Volokh did a few years back when he was anti-marriage amendment curious? asshole)? Who knows. I judge him by his deeds.  Such is part of the test of "animus" as a legal matter too.  A "people's [amicus] brief" spells this out:

HRC’s Chad Griffin — who fought California’s Prop 8 — joins with DOMA-slayer Robbie Kaplan to describe the “animus” that they say is behind states’ marriage bans. The brief will be one of many amicus briefs to hit the Supreme Court in coming months.

The additional wrinkle here -- I did it -- is that people can sign it, like a petition or something.  I appreciate the brief since it addresses what to me is a particular problem with most of the states' anti-SSM laws -- they are a sort of special burden and message of unreasoned dislike that is a type of adding insult to error.  Blatant animus is possible but not necessary:

“You don’t have to have hatred in your heart,” Kaplan said in explaining what legal “animus” means, “but you have to have a misunderstanding or a failure to understand or appreciate that the gay couple who’s living across the street from you are just the same as you are.  It’s that lack of understanding in this context, which I think explains what happens, and which gives the court, I think, a reason to hold that various statutes and constitutional amendments before it are unconstitutional.”

The states did not just let the legislatures decide the question (like mine own state -- NY -- or Hawaii, which had a state amendment that merely gave legislative discretion to deny SSM).  SSM was seen as so scary and/or different that constitutional amendments were necessary, even to recognize out of state marriages (generally put to a lesser test). There is enough baggage here that it is hard to imagine legislative action without these barriers that blocked SSM would lack animus even then. The sentiments will overlap, the lack of reasonableness of the denial of a range of rights tied to marriage (even "civil unions" will in practice deny some) will be apparent.  A group will be targeted with a special degree of disrespect.

It is true that  relying on "animus" doesn't go quite all the way.  Windsor reads like an animus decision with it's notation of laws that should be looked at with special wariness.  But, it also speaks of same sex marriages as having the same qualities as different sex marriages, so ultimately it has the net effect of being like Lawrence v. Texas -- intimate associations should be enjoyed by both groups.  This would ultimately knock down the few states left in recent years without some sort of special barrier.

Marriage is a fundamental right and sexual orientation should be treated with heightened scrutiny.  But, especially in respect to the states at issue in the lawsuits to be decided by SCOTUS, there is a somewhat narrower ground that could do the trick.  And, it also would help provide context on just what is happening here.  It is not quite like the case that led the 9CA to provide heightened scrutiny for sexual orientation -- the issue of peremptory challenges. Such a narrow issue that was not subject to constitutional amendments and the like is a somewhat closer call.

The brief is signed by the lead lawyer in the Windsor case as well as Dale Carpenter, who wrote a very good book on Lawrence v. Texas. Check it out.  There are going to be lots of these briefs, but you cannot sign them!

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* The brief provides a summary of the usual arguments mixed in with the focus on animus, particularly on why the usual explanations for bans don't work. Besides wondering "if not now, how long?," it says that the unions that need protection here are not all that new anyways. We need to see the:

true significance of the decades-long emergence of gay couples and families in American life. These relationships and families have not sprung up overnight, as if they were somehow the abstract creation of political activists. Rather, gay couples have been supporting each other, raising children together, and facing the same quotidian joys and burdens (“in sickness and in health”) faced by other married couples for many years. Social science has been studying gay relationships and parenting for decades.

After all, "States and local governments, in addition to private employers, have been formally recognizing such relationships since at least 1984."  There will be briefs that refer to a lot older signs.  To me, along with the special insult argument (and the basic understanding that the couples here have the same rights and reasons for them as others), the key thing to not forget is that same sex marriage is not really new.  Couples have been in a form of common law marriage without a license for decades.  

The failed attempt decades ago in by a couple still around in Baker v. Nelson underlines the point -- it is just a matter of recognizing it.  Selectively not recognizing it when the indicia is there underlines the animus and need for heightened scrutiny. If not the lack of a rational and legitimate state basis (mere moral opposition or sex discrimination)!

Review Quickies

Reread Becoming Justice Blackmun by Linda Greenhouse & though it surely isn't comprehensive, it's an enjoyable read. His notes, btw, suggests at first Justice White planned to concur in Roe (felt health exception needed), which would work better than his crude total dissent. Couldn't get into Breaking Bad, but Better Call Saul was still good.

"How to talk to an anti-vaxxer"

Coming from a people nearly wiped out by disease, I say, “Fuck you, you superstitious, selfish anti-vaccination assholes.”

As noted here, vaccination is part of the duty of citizenship or more generally living in a society where harm to others is something you are supposed to care about.  Even if this means you have to sacrifice a bit of liberty  The tweet itself reminds me of the case where a lawyer noted that instead of banning peyote, Native Americans might worry about the evils of alcohol.  Different perspectives can be useful, huh?


There is a continuing demand to deal with the basics, even when many think they are so basic that anyone should recognize them.  Thus, birth control, Medicaid and now vaccines are controversial issues again.  Oh vey.  This leads to some people calling people out, especially when the comments are made in places where they amount to speaking to the choir. Following up on another person who argued belittling people like Jenny McCarty on the vaccine thing is not the best way to go, here is more discussion on "how to talk to an anti-vaxxer." The discussion is not only applicable to one range of people who some rather just snark attack. 

One bit of advice is to have empathy for their concerns, but the overall discussion still suggests you use some facts.  Facts alone won't convince when people think they are among the Illuminati who have special evidence the herd don't know or ignore, but even such people reason somewhat.  The same with those who ultimately rest on belief in regard to things like same sex marriage.  You aren't going to convince them all, but you might be able to whittle things down to some degree. People do change their views, especially when they don't rest their lives on them.  And, to me, empathy includes respectfully reasoning with people as much as possible.  It's not always successful, but is less mean too.

Also, degree of belief can matter a lot, especially when accepting certain things. Thus, at some point, the Catholic Church stopped trying to get the state to actually ban birth control, at least across the board. (They still are trying to stop it in certain cases, such as efforts against the morning after pill or funding insurance where individuals decide the question.)  We have gotten to a tipping point here in the area of same sex marriage. Some even today are not supporters of interracial marriage, for instance, but they realize they cannot ban such a thing.  Rationality can help here.

"Doc Amazing" adds more:

First, as has been pointed out, the vaccine-shy are not a monolithic population. Those who dogmatically oppose all immunization are, in my experience, fairly rare. When I am speaking with them, I open the discussion on immunization, make it clear that we can initiate immunization at any time if they change their minds, and move on. Can I spin scary stories? Sure. If I perceive that those will be useful, I’ll pull a few out–I have studied abroad and in Bakersfield, so I’ve seen the ravages of vaccine-preventable illness. However, some people are merely hardened by scary stories. Can I address some of the objections to immunizations? Sure. I even pull up numbers to show parents who are worried about Big Pharma that vaccines are very low-margin and that pharma companies have to be bribed by the government to continue to manufacture them. 

The majority of vaccine-shy parents are concerned about what I call “the immune-overload hypothesis”–the idea that giving too many vaccines all at once is a heavy load on the immune system. Can I point out that a ride on a city bus exposes one to much more of an immune load? Sure. Not useful most of the time. Many of these parents are fans of the Robert Sears MD school of spacing out immunizations. Is that ideal? No, but it’s harm reduction. As long as I can talk them into getting an MMR into their kid at twelve months, we’ve accomplished something.

As noted, "people are irrational," so you have to work with a flawed population.  The article for instance notes that Mississippi of all places has a strict policy regarding vaccination to enter public school and the rate of vaccination is high in the state.  (I wondered earlier if such a rule was really enforced, but guess there is some evidence it is followed.) I have an idea that the state is something of an outlier given its poverty and perhaps the high black population that the state traditionally was more willing to control. But, a hard and fast rule can lead to acceptance of authority, even if many on their own might not do that thing.

And, snark and ridicule has limited uses. It is first and foremost a sort of coping mechanism to deal with all that irrationality and other bad stuff that are not easily addressed.  Second, people in general are followers and also don't like to be shamed/ridiculed. There has to be some strength to their irrationality and confusion here to being willing to continue it. And, shaming and ridicule is a way to demean certain arguments that are seen as so bad that they do not even warrant discussion. Finally, shame and ridicule might affect politicians and others who may not be true believers, but in effect troll-like are truthers/deniers.  Shame and ridicule can deter some.

Finally, the article argues that the problem here is not as big as other lethal issues. It is true on some level that there are problems like guns, drowning, car accidents and so forth that are much more lethal.  But, these are more avoidable and/or more a matter of personal failings (especially guns) than not vaccinating.  You can avoid being hit by a car more easily than keeping your child out of places where unvaccinated children might harm them.  Plus, the reason why it is not a bigger problem is because of the advancements in public health because of things like vaccines.

Still, yes, snark only takes us so far.

Lauren Yanofsky Hates the Holocaust

This is the third of an unrelated series of young adult books, each with a young woman dealing with a matter of Jewish culture in some fashion. Here is a personal review. I recall "trees" being a bit rough but each book made you think, including this one in which various p.o.v.s get some respect. For instance, overdoing it causes problems, parents. But, we get a sense why they do it. Promoting empathy like that is a good thing.

Death Penalty SCOTUS Watch

Two orders. The first denied a stay for someone who murdered a cop during a robbery during an escape. Not knowing possible special facts, yes, a "worse of the worst" sort of case, but one most of the world still doesn't use to execute. The second was granted for now and raises various issues, including mitigating factors, innocence and long time on death row.

"New" Harper Lee Book

Understand the concerns about Harper Lee not truly consenting to it, but still excited about her "lost" sequel (though written first) coming out. Art goes beyond personal stories. Literary sorts should demand independent oversight -- some already saying it will be really a major re-write at best. Expect some roughness akin to forgotten early efforts of actors.

More on vaccines

Evenson did not say whether Walker believes parents should have a choice on whether their children get vaccinated.

The problems Christie (already a known asshole with corruption problems -- let's not forget Bridge-gate) being hinky on vaccines (appointed a gay judge and was happy about Obama helping with Hurricane Sandy, got to balance things out here!) led me to think Gov. Walker was watching gleeful. The current conventional wisdom seems to put him up there though might want to up those foreign policy bona fides. But, if he is going to "not say" here, I'm going to assume that he is for voluntary vaccination.

Here's a helpful history of the vaccine/autism controversy.  To be fair, that summary shows that the truthers here have some presence on the left (see, e.g., Robert Kennedy).  Exemptions to vaccinations tend to have both "religious" and "conscience" prongs here.  Opposition to vaccines go back to the days of John Adams when they first was applied to our shores, into the early 1900s and now today. Life goes on, some things don't.

"for the common good, for the protection, safety, prosperity and happiness of the people, and not for the profit, honor or private interests of anyone man, family or class of men."

The reason, according to the original constitution of Massachusetts as cited Jacobson v. Massachusetts (1905), why government was instituted.  This ruling upheld a mandatory vaccination law, even if there was some dispute over the science of the matter.  The author of the opinion is Justice Harlan, who had a moderate position regarding state power (e.g., joined with various "Lochner" Era rulings but dissented in the case itself), and is not really the Tea Party justice.  The case recognizes the limits of liberty:

There is, of course, a sphere within which the individual may assert the supremacy of his own will and rightfully dispute the authority of any human government, especially of any free government existing under a written constitution, to interfere with the exercise of that will. But it is equally true that, in every well ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand

Such rhetoric can be used too broadly, but when we are dealing with something like contagious disease, it is a lot more appropriate.  As noted here, such forced medical treatment (the rules are somewhat different in respect to minors and there parental rights also enter the picture) would be put to a higher test these days. They still should be met, especially when school attendance is involved; as with health insurance, no person is an island here even outside such broad situations.  Do you home school? Does your child play at a public park with other children?  

The most appealing types are of the Jenny McCarthy variety (like the co-star of Clueless on FOX as a news commentator, she has celebrity cred in areas where of course she really shouldn't, but that's how life works) who think their kids were negatively affected. As one discussion noted, just calling her bad names or questioning her good faith is not the best approach here. They also these days do seem to get the most succor from the Right, the same who put forth stupid anti-ACA arguments that hurts the well being of real people. Including those with pre-existing conditions like autism. They also are selective about choice on health care (see abortion). The same applies to family leave policy (very good article). If you are going to be inconsistent people, the scorn lashed at you is appropriate.

The "right" not to vaccinate -- and it's there nation-wide to some degree -- is troubling enough.  What got Christie et. al. particularly in trouble was their citation to the now clearly debunked possibility that some vaccines are dangerous because they cause autism (if some specific problem is cited).  Science raises its ugly head.  Those who are loathe to be specific at least arguably consistent with their "I'm not a scientist" philosophy about climate change.  But, policy makers need to get informed about science. And, one side still seems more so.

My mom told me some time ago about her bout of whooping cough as a girl, including the hallucinations.  She grew up when polio was still a problem.  The horror blogger I link tweeted about how as someone who is in treatment for cancer, those not vaccinated can be deadly.  The idea of "herd immunity" might seem too much like us being sheep, but living in a society means working toward the common good.  That means that even if a tiny number of vaccinations were deadly, the statistical chance does not really negate the justice of mandatory regimes. 

We need to get past issues that seemed dead years ago.

Birth Control, Medicaid Funding and Now Vaccines?

THESE things are controversial? Seriously?!

Is it Baseball Season Yet?!

"James Bowen and street cat Bob’s Quick Reads Crusade"

Good discussion on the power of reading in promotion of "easy reading" books.

Seemingly without a "grim roster of victims," California reduces extreme prison crowding as ordered in Plata

The Supreme Court ruled in Brown v. Plata that a lower court was correct that California had to reduce prison overcrowding that lead to serious harms. There were concerns, including in a dissent by Alito that was joined by the Chief Justice of "a grim roster of victims" resulting from this order. Prof. Berman, citing a conservative legal blog's numbers, suggests that so far the sky did not fall. If anything violent crime decreased. A reply wondered about all the "murders" and "rapists" helped by this. Response:

[B]efore Plata a prisoner was dying unnecessarily every single week because of the unconstitutional conditions created by California's mismanagement of its prison system and its failure to reform its sentencing system for many years even after Gov. Arnold Schwarzenegger declared a state of emergency. Plata came to be because legislators and executive officials refused to deal with hundreds of dead prisoners being, in essence, tortured because of state neglect. Plata involved federal judges properly applying the PLRA, a law passed by Congress to provide remedies if/when a state refused to comply with its constitutional obligations.

Asking if Plata, which was based in constitutional vales and Congressional authority, was "worth it" after pointing to some crimes that you claim Plata caused is a bit like asking if the Second Amendment is "worth it" after pointing to kids accidentally shooting and killing family members. In a society committed to certain constitutional values and conceived in liberty, judges are tasked with safeguarding those values when others will not.  [read the whole thing]

The original person disagreed with the need for the ruling in the first place, but the comment he (pretty sure) made is standard for him, including the potshot at Sotomayor.  Ironically, he often complains about how she doesn't have enough empathy for crime victims. This guy, according to one person, is a civil lawyer in some big firm.  So, it's a tad bit depressing he rants about things while ignoring that in this country we have rights, rights that apply to defendants and even those in prison.  The proper balance is complex, but if you aren't even going to grant that, well okay.

The person is cited as a representative of a type, which is the usual value with flagging such people. It is realized they are but one person, but they stand for more. Correcting one wrong person on the Internet still can be taken too far.  Anyway, it is somewhat hopeful that something is going well in regard to this issue.

The Chatterley Affair

This BBC film from about a decade ago mixes the true story of the "trial" of this book with an fictional account of its effects on two jurors who have an affair.  One review ironically argued that it has "a distasteful amount of nudity." Nudity it has, including that rare (not keeping up with all pay channel series to any degree etc., perhaps not totally so these days) thing for these shores full frontal male nudity.  Quite germane to the plot, surely, but yes, it has some very sexy scenes there.  Positive aspect.

As a whole, though, I was somewhat disappointed with it. The somewhat one-sided nature of the trial is -- from that article cited -- some reflection of reality. The prosecution did focus on dirty words, didn't call witnesses and the defense was in effect an overdose of experts, making the whole thing seem rather one-sided.  Still, the experts all seemed dull -- curiously given my understanding of D.H. Lawrence's point, they made the book seem too academic, too good to be true.  The jury's deliberation skipped from some for prosecution to a unanimous verdict the other way. What happened?

Anyway, as the U.S. Supreme Court reminded in a case involving a film version, free speech allows one to "alluringly portrays adultery as proper behavior" -- it is up to you to take what you might from that.  Speech is about challenging norms. This wasn't directly stated by the defense here. Also, why not include works that cover what is seen as "profane" subjects? Justice Douglas actually did something atypical in 1960s obscenity cases here and raised the question why not talk about them?  In part:

But we are not in the realm of criminal conduct, only ideas and tastes. Some like Chopin, others like "rock and roll." Some are "normal," some are masochistic, some deviant in other respects, such as the homosexual. Another group also represented here translates mundane articles into sexual symbols. This group, like those embracing masochism, are anathema to the so-called stable majority. But why is freedom of the press and expression denied them?

I do think it was overall a good library DVD find, including given its interesting subject matter. I'm of an opinion there are many legal cases that would make good films, including one where we see the various sides of the question from the parties to the deciding in the courts.  The film did a decent job covering various questions and the cast as a whole was good. The leads were as well and the sex was portrayed in a mature fashion, which is somewhat surprisingly not the norm here. Lots of sex, but perhaps it is seen as too dangerous or something to be so mature about it. Nothing fascinating about them,and we might be left wanting somewhat as regards to their characters, but overall well done.

Overall, it is somewhat incomplete, but especially for a t.v. drama, above average.  A prime marker here is that more than one supporting character was a worthwhile addition. What is around the lead material is a good sign.

[I recall trying to read the book and not getting into it but also read some of the author's own remarks as to sex and the like.  Quite "puritanical" as one expert used that word indeed -- he did have a deep concern for its value. See also, Justice Frankfurter's quotation of D.H. Lawrence's views, which I state without knowing the full context of the citation.]

Alternative Programming

Super Bowl Sour Grapes

[I was wrong. Pissed off. ANOTHER team blew it!]