I know you ...

Young & Hungry was amusing last night and I recognized the guy with the fake accent from various shows. But, the new love interest actually is a familiar face too -- listened to her sing decades ago. On something called a "record." Time flies. Those perogies looked good too.

Justices Impatient With Wrong People?

The last day of oral arguments included one involving use of midazolam, which has been flagged as inappropriate by certain experts. The USSC (5-4) allowed one execution to go forward before taking a case. The risk here also is just that -- a risk; so (if it was okay) a successful execution doesn't prove much. Five justices seemed to see this as just a delay mechanism. Or, it just might be the system is flawed and they are blaming the messenger.

Campaign Finance Regulation UPHELD!

Supreme Court opinions are rarely surprising, but Roberts joining the four liberals (though two did not fully agree with his opinion) to uphold a regulation of judicial elections is. The limit might be modest, but as with cases striking down such laws, the ripples might be interesting. Agree judges aren't legislators, so there is more concern for avoiding of corruption or appearance thereof. Roberts also might have seen it as protecting his role.

Don't Make Marriage History Small

This article on the changing nature of marriage is fine overall but has a tedious approach of simplifying that I see from time to time in comments. So, marriage was "not above love" until recently or something. Simplistic at best as seen by various ideal couples in ancient myths etc. I also (after a fashion) used this amusing imagined reply to a question about the Greeks to provide my own thoughts on the history there.

SSM Orals

The arguments were rather unrewarding, especially the recognition questions that might be a more limited approach/issue, if they seemed to care much. They didn't. The couples' lawyer in the main argument was a bit hesitant sounding; the best was the S.G. The states relied on the risible argument that it would be bad for children if people thought marriage was about love and commitment. First part of audio release while the arguments were still ongoing.

SSM Day

Two are better than one, because they have a good return for their labor: If either of them falls down, one can help the other up. But pity anyone who falls and has no one to help them up. Also, if two lie down together, they will keep warm. But how can one keep warm alone? Though one may be overpowered, two can defend themselves.

 -- Ecclesiastes 4:9-12

Marriage equality is good for marriage overall.   For the children.  Necessary for a complete "right to marry."  The basics of legal rationality. Basic to equality (including sex equality).  And, knock on wood, it is a nice to -- about two decades after first seriously thinking about the subject -- live thru a positive seminal moment of Supreme Court history.

It isn't all good, after all, so you got to enjoy the highlights. 

Wake-up Call

I'm not on the ledge or something, but winning eleven in a row was not quite "real life" either. The Yanks weekend series, including last night's game, was in effect their first big test. Sorta failed, last night kinda embarrassing (four errors didn't help). The winning streak gave the Mets a cushion. Great. Nothing won yet. That series was a bit pathetic.

Rev. Joe: The Gnostic Discoveries: The Impact of the Nag Hammadi Library

I have discussed gnosticism in the past and this basically provides a decent summary of the standard material. A lot of the scriptures remain to me rather esoteric and hard to slough thru though some of the ideas are attractive (especially focus on wisdom and self-knowledge, not Jesus as a sort of animal sacrifice). Book does helpfully touch upon how some of the basic concepts here went back to the days before Jesus including Plato and different myths.

"House GOP Poised to Revive 20-Week Abortion Ban"

If we are going to have debates over contraception (really?), it is far from surprising that abortion is still a major point of contention. Abortion involves so many things, including questions of gender politics and religious belief, which is after all a major reason the subject fascinates me so much (or some other word that might seem more appropriate).

The latest in abortion restrictions includes reducing the types of procedures used, back to the second trimester, and trying to ban the procedure totally earlier in the pregnancy.  The current rule constitutionality draws the line at viability. It gives someone time to decide and obtain the abortion while accepting that once the fetus can survive outside the womb that it is developed enough to be protected. The attempt to draw the at twenty weeks, though the viability line already allows a cushion that might in various cases stop abortions a few weeks earlier, is the idea that the fetus at that point feels pain. A dubious argument that at best would warrant use of some sort of anesthesia.  

A question arises regarding where Congress gets the power to do this. States would have the police power to regulate in this sort of fashion, if it did not otherwise interfere with constitutional rights. But, Congress has more limited power though we do have many cafeteria federalists out there when it comes to dividing state and federal power.  Thus, though admitting that there are moments of consistency (e.g., medicinal marijuana), the federalist argument against DOMA had not takers, even though one or more justices should have been sympathetic. The same applies to Congress regulating specific medical procedures, Justices Thomas and Scalia even noting the issue is out there.  If the justices actually wanted to seriously flag that issue in such a way that it could be substantively determined, they could do so.  The crafty liberal might fear the reach of the decision, but net probably should encourage that sort of thing to push the issue.

Congress has authority to extend protection to pain-capable unborn children under the Supreme Court's Commerce Clause precedents and under the Constitution's grants of powers to Congress under the Equal Protection, Due Process, and Enforcement Clauses of the Fourteenth Amendment.

So says a former version of the bill.  The Commerce Clause hook was used in the federal so-called "partial abortion" law.  The other hooks are more dubious. The restriction of abortion rights are being done here to protect unborn "persons," which goes beyond the limits of Roe v. Wade.  In general, it is unclear when the Fourteenth Amendment was used in this fashion to protect embryos and fetuses.  The "equal protection" of limiting abortion rights of women to protect fetuses, even if the fetuses feel pain (again, why not anesthesia? the usage of it for fetal surgery is even flagged; because "pain" is really here a stand-in for personhood) is also pretty dubious.  The law here blocks abortion too, which makes it worse than laws that limit procedures (which block a lot too, but a total ban is more blatant).

There are exceptions, as there tends to be in laws of this nature, and they deserve notice too. The major exception is when the person has an abortion to address "substantial and irreversible physical impairment of a major bodily function, not including psychological or emotional conditions, of the pregnant woman." This in itself is a problem -- "psychological or emotional conditions" is covered by "health" and even post-viable abortions cannot be blocked when necessary for that reason. Also, "substantial and irreversible" sounds like something of an overly strict definition for a health exception. We are dealing here too with a criminal statute; along the margins, at the very least, it will be a hard choice and some will not be covered.

The other exception is rape, which got the rape caucus in trouble given even a few Republican women were worried about the phrasing.  Why should rape even be an exception really, if we are worried about pain?  Rape is not an exception for infanticide.  Two reasons -- (1) push comes to shove, people accept fetuses are not the same as newborns  (2) rape is deemed a special tragic case, not merely a voluntary choice of the woman, one in effect forgivable. This adds to the general sentiment that these sorts of laws are just hateful means to control women. 

About 1 percent of all abortions occur after 20 weeks, and women have numerous reasons for needing them: tragic fetal abnormalities, being in denial as a result of rape or other trauma, being too young to have regular periods, being unable to raise enough money in time, or having difficulties navigating restrictive state laws.

The article cited in the title provides this complete list of reasons why abortions occur at this later stage.  First, note that some people involved here are not "women" but minors.  Language is so fraught in this area.  Second, some of these reasons are aided and abetted by government policy, be it denial of funding, general delays or specifically parental involvement laws. Mix in some problems with sex education and general societal confusion about such matters. Finally, fetal abnormalities, often only picked up late, are a major issue here.  Not just rape or threat to life or health.  This is also a tricky category even post-viability, particularly if the fetus is not likely to survive or the survival is quite questionable.

The chance of a national bill passing is dubious -- there are enough complications here that even many anti-abortion legislators will not want to put in place a national bill.  Also, President Obama would likely veto it and there would not be the votes for an override.  The matter is also an issue in the states (this is a general "fact sheet" on this issue).  The focus on rape when this bill came up is not surprising, especially given some of the comments a few trolls made about "real rape" or the like.  But, the bans are problematic for many reasons as are any wrongful limits on later abortions.

The complexity should be made clear and addressed when pro-choice opponents speak out.

"Human Rights Campaign Took A Red Pen To Jindal's Religious Freedom Op-ed"

Back in the day, found op-eds a useful way to think about issues and respond to certain claims. In a way, never stopped, now doing so online. The "red pen" here is impressive though it missed one time when the op-ed spoke about "Christians" being threatened. This open favoritism was to me one of the more blatant douche moves of the writer.

"40 years later, story of a same-sex marriage in Colo. remains remarkable"

A documentary provides a great human interest story that also shows how much has changed but also staid the same in regard to same sex marriage. The idea of SSM was not crazy to everyone back in the 1970s, including to some governmental officials. But, there still was a ways to go, especially to degree of overturning an immigration judgment (which DOMA later made obligatory) that the law didn't protect them. Ironically, Judge Kennedy (yes that one) was involved, but the issues were somewhat different, as well as the state of the law.

Young and Hungry

Used largely to set up complications, but the safe sex bit on tonight's episode is still a nifty thing. Oh, Emily Osment is nice on the eyes. It's okay now -- she's in her 20s.

The Great Agnostic: Robert Ingersoll and American Freethought

Susan Jacoby's Freethinkers: A History of American Secularism was more comprehensive than this examination is as biography. It provides some biographical information (basically all supportive) but mostly is a summary of his ideas, which go beyond secularism to anti-vivisection, women's rights and support of the arts. Makes me to want to know more. Jacoby is most impressed by his ability to promote his ideas to the masses. An important matter -- many think, fewer are able to promote and make others think.

Court Watch: Raisins and Prairie Dogs

Troubling summary of "the raisin case" return for oral argument at SCOTUSBlog where the SG "tried repeatedly to emphasize the actual workings of the program, but there was no receptive audience for that." Justices seemed more concerned about the specter of some overbearing law, at least one in their minds. Meanwhile, interesting discussion of how the Endangered Species Act (here applied to prairie dogs) is a valid exercise of the Commerce Clause given the interstate economic effects involved. Also, back is an armed criminal case.

Broad Power To Stop Cars Again Narrowly Limited

This is stock photo so is not a picture of "Floyd," the dog in question. The USSC reasonably (and briefly) decided 6-3 (Scalia/Thomas split) that a traffic stop should not be extended merely to provide time to use a drug sniffing dog. Using the dog itself is dubious, but the matter was upheld in a past case. Garbled oral argument did not hurt defendant. As to being "unnecessary," flagged by dissents, major point of USSC review is to clarify legal points.

Life in Motion: An Unlikely Ballerina

Could use a bit of editing, but overall, well written book (has a co-author) about a mixed race girl with not the most ideal family situation that finds a talent and love for the ballet. And, though there are a few photos of her with one, the word "bunhead" is not mentioned once! A review argues she praises herself too much, but she openly notes her gift and the responsibility (along with the joys) she feels it brings. An honest and appropriate mentality.

Mets: MASH Unit?

Player after player is falling by the wayside. TWO major players (including a key leftie reliever) are now out for some time because they were hit. The erstwhile closer is out 80 days (and no post-season) for violating the steroid policy. Another closer is thriving early on and there is already talk that a slot is not guaranteed when the cheater ("me? no idea!") returns. Might be best, especially if you can get something for him, to trade him. Send a message. Steroids can be dangerous and the rules are there for a reason. LGM!!!

Veep

This show at times is rather low key, but repeatedly it is rather wickedly good and on point satire (e.g., the abortion episode). Last night's episode, especially the Gary/Selina fight, was particularly good. The new VP assistant creeps me out.

Marijuana Day Falls On Hitler's Birthday

Jungle Captive

The final part of the "Ape Woman" trilogy was on last night via Svengoolie and it actually was pretty good on average with no excessive use of past footage including somewhat unpleasant animal acts. The plot did get a bit ridiculous as it went along and the Ape Woman was rather boring here especially with a new actress. But, basically fits into the decent if no longer novel third trilogy rule. Meanwhile, Good Witch season finale okay; not worth two hours.

Appomattox: Victory, Defeat, and Freedom at the End of the Civil War

Timely book covering reactions from various sides. Overall, well written, though some chapters seems to go on a bit too long. But, appreciate the multifaceted approach.

Lochner: This Day in Labor History: April 17, 1905

This infamous opinion is discussed here as a matter of labor history, one of a continuing series by the author in question. The issue at hand was a maximum hours law for bakeries in New York, sixty hours a week, part of an overall health law.  By closely divided courts in the state and Supreme Court, this aspect of the law was seen as an illegitimate limitation on the liberty of contract, an illegitimate favoritism of certain groups of bakers. Some even today argue that the law burdened small time bakeries, as well as immigrants, and really shouldn't be seen as a "health" law at all, but illegitimate class legislation.

Given the cry of "Lochner!," it should be remembered just what was at stake here.  Though Justice Holmes had a famous dissent (in part to suggest the majority favored a certain economic philosophy; arguably the Constitution does in some sort, including with its anti-slavery provision and certain property related provisions such as the Contract Clause), Justice Harlan wrote the primary dissent for three justices. This meant eight justices did not disagree that liberty included "to be free in the enjoyment of all his faculties; to be free to use them in all lawful ways; to live and work where he will; to earn his livelihood by any lawful calling; to pursue any livelihood or avocation."  To quote an opinion a few years before.  It is even unclear just how much Holmes himself would disagree.

The debate was over the reasonableness of the regulation. The dissents thought they were reasonable and Harlan, who in certain cases voted to strike down economic regulations, provided some  details on why.  Holmes did so in more general tones. Justice Souter noted nearly one hundred years later that the general idea that the "liberty" protected by the Due Process Clause was open-ended was "unobjectionable" over the years but "striking down as arbitrary various sorts of economic regulations that post-New Deal courts have uniformly thought constitutionally sound" was.  As the discussion linked shows, key here is question of sound economic regulation and the true nature of the unbalanced status of workers/employers.

David Bernstein and others (in a supporting way) and some from the other direction see Lochner as an open-ended protection of "liberty."  But, though a minority of progressives of the day saw that being the problem, over time, the concern was more the understanding of proper economic regulation. As Justice Douglas, who began his rise as a regulator of the economy, late noted, it doesn't mean economic regulations should be given free reign. But, particularly in the Bill of Rights, the limits on economic regulations seemed to him to be much less present. Others also saw personal rights such as free speech or marriage protected in a way "lacking when appeal is made to liberties which derive merely from shifting economic arrangements."

This is a matter as much of history and value judgments based on our experiences than appeals to words like "liberty."  History showed that the free labor principles that helped lead to the abolition of slavery should be applied with an intelligent understanding of the imbalances of the free market system.  So, this was partially about equality and true liberty for those who had a Hobson's choice of taking lousy pay and conditions or starvation.  But, it is also a concern about certain liberties like marriage being more important than being able to sell something.  The "Lochner" problem was not merely some general appeal to "substantive due process" where the Due Process Clause is not merely a procedural protection but protects the rights in "substance" such as free speech or the right to privacy. As noted in the 1970s in respect to liberty over living with family members:

Substantive due process has at times been a treacherous field for this Court. There are risks when the judicial branch gives enhanced protection to certain substantive liberties without the guidance of the more specific provisions of the Bill of Rights. As the history of the Lochner era demonstrates, there is reason for concern lest the only limits to such judicial intervention become the predilections of those who happen at the time to be Members of this Court.  That history counsels caution and restraint. But it does not counsel abandonment, nor does it require what the city urges here: cutting off any protection of family rights at the first convenient, if arbitrary boundary -- the boundary of the nuclear family.

The most interesting historical moments tend to be those where there is true complexity on both sides. There is a certain core of Lochner v. N.Y. that holds true -- judicial review of local legislation to protect liberties and guard against special favoritism that is constitutionally illegitimate. The baker here himself brings to mind some Italian pizzeria owner who might wish to stay open long hours or something. But, the value of the "choice" here is debatable and law can block certain "choices" like the "right" to labor for $1 an hour.  The quotes are advisable -- we do not want a totally libertarian system and it would likely have certain coercive qualities.  Some limits are appropriate. 

And, we do trust the "public" marketplace more to regulation than "private" matters.  There continues to be a major debate on how much the courts should have the responsibility (and how to do so) even to regulate the latter field, especially if we are not talking about things explicitly expressed in the Constitution. Certain states also are somewhat more stringent in judicial review of economic regulations. The best approach to regulate the economy in general as a legislative matter also still greatly splits us until today though even the worst policies are not quite the same as those  of 1905.* We do have a ways to go.

---

* On can imagine what Justice Peckham would think:

No trade, no occupation, no mode of earning one's living could escape this all-pervading power, and the acts of the legislature in limiting the hours of labor in all employments would be valid although such limitation might seriously cripple the ability of the laborer to support himself and his family. In our large cities there are many buildings into which the sun penetrates for but a short time in each day, and these buildings are occupied by people carrying on the business of bankers, brokers, lawyers, real estate, and many other kinds of business, aided by many clerks, messengers, and other employs.

The horrors. 

"She’s right that money in politics is a problem. But suggesting a constitutional amendment is foolish."

Yes, Rick Hasen, but her comment was pretty vague anyway.

"Mormon couple object to inclusion in U.S. Supreme Court gay marriage case"

Mixed orientated married "The Weeds" are upset. Amusing on various levels.

"The Myth of Magna Carta"

The Magna Charta article cited is the start of the 800th (or 790) anniversary coverage over at Concurring Opinions Blog. 

The "great charter" was renounced shortly after it was signed but in time was seen as a seminal moment of English (and American) liberties.  Edward Coke (who in an originalist sort of way and otherwise is something of a patron saint of judicial review) apparently did some law office history before it was cool.  Coke was a 17th Century jurist who claimed a special role to even hold a law passed by Parliament void, judges have a special role to applied the "artificial reason" of the law. And, the obligation to respect their judgment goes up to the king, who at the time wasn't so gung ho about the outer limits of such logic.  

His writings and rulings were seeds for the future. By the time of the American Revolution, the great British jurist William Blackstone spoke of parliamentary supremacy, but the colonists were not quite so sure.  Just what this would be in respect to judicial review by the time of the Constitution still remained somewhat unclear, but Coke was at times appealed as precedent. Just how valid and strong such appeals were is still debated.  Single opinions rarely tell us much in a vacuum. It is what they tell us in context and over time that generally matters the most. 

The Magna Charta appears to have a kernel of an idea of the limits of executive power and the rule of law, even if how it was applied in the times of Robin Hood the Merry Men (about as fictional as how the Magna Charta was remembered) it was very different. The British article cited above flags how the Magna Charta, including the key "law of the land" article, is misunderstood.  I think this can go a bit too far. The key clause:

No freemen shall be taken or imprisoned or disseised or exiled or in any way destroyed, nor will we go upon him nor send upon him, except by the lawful judgment of his peers or by the law of the land.

This was a basic rule that didn't have the power of judicial review to back it up, juries were in their infancy (more grand juries to collect facts) and "the law" was more a matter of accepted traditions than written statutes. And, the basic way to enforce it was what occurred then -- a civil war where you use the force of arms to get relief.  Also, as noted in the article, the idea that English kings swore to follow the law was not invented in 1215.  Still, the core idea -- with much detail and institutions added -- is very important.  The importance of the Magna Charta, mostly forgotten feudal rules, might be a sort of "invented tradition," but that's nothing new.

This could in some fashion be kept in mind when it is applied in a much later context, but it's important to keep in mind the changes. This should be kept in mind when applying history in the same sex marriage cases.  I wonder how future generations will understand our own times, including a new constitutional amendments. Consider, e.g, GRANHOLM v. HEALD involving the 21A. Justice Stevens, who remembered the times when it was ratified, dissented and had a different view of the "original understanding" than the majority.  Justices Scalia and Thomas also were on opposite sides. 

"Myth" is sometimes demeaned as merely fictional, but there's more:

a traditional or legendary story, usually concerning some being or hero or event, with or without a determinable basis of fact or a natural explanation, especially one that is concerned with deities or demigods and explains some practice, rite, or phenomenon of nature.

Like fiction generally, there is often a core truth. [post expanded]

The Thing (1982)

Saw parts of this on DVD -- characters fairly unpleasant though familiar faces but overall is well made. Got bored. Pleasant commentary track with Kurt Russell and director.

"Taxes are what we pay for civilized society"

John Oliver in effect channels Holmes et. al. to defend tax collectors. St. Matthew blessed the affair. He noted even granting wrongdoing in the Tea Party matter (dubious) that defunding isn't the answer. If we are going to trust the government with social programs, including PPACA, some respect of the IRS will be important. The bill is due!

Supreme Court Won’t Stop Missouri Execution Amid Competence, Racial Bias Claims

Four justices would grant a stay but are silent on why. I am sick of this shit -- if you don't think the guy should die, TELL US WHY. Explain yourself. The murder was a guy going off the deep end about his ex-wife. This is not "worse of the worst" material anyway. It looks like there are other problems but this alone is bothersome.

Corruption in America: From Benjamin Franklin's Snuff Box to Citizens United

Interesting book by Cuomo challenger Zephyr Teachout on the history of corruption as a basic threat to republican values. We see how paid lobbying was once upon a time seen as against public policy, but it mainly covers campaign donations and gifts. Balancing pure speech (Citizens United was about a film) not really covered. Would like a bit more on that issue.

Star Trek: The Motion Picture

It is a shame that this is the only original Star Trek film left to borrow from NYPL. Focused on showing off special effects, the story itself is a bit thin and drags. It is in effect a mix of a failed pilot with padding. And, as a philosophical exercise, it isn't much. Still watchable.

National Poetry Month -- A Bit of Frost

Fire and Ice
 

Some say the world will end in fire,

Some say in ice.

From what I’ve tasted of desire

I hold with those who favor fire.

But if it had to perish twice,

I think I know enough of hate

To say that for destruction ice

Is also great

And would suffice.

Veep

Nice little return -- low key and sharp.

Saturday TV/Films

Yesterday, Today and Tomorrow is an Academy Award winning 1960s Sophia Loren film in which the leads play different roles in three stories. The first is amusing and overall well done (including in portraying a poor town in Italy) but found the other two somewhat lacking. The second is very talky and the leads not appalling. The final with the famous stripping scene is okay, but also found it overly talky and the finale is let's say interrupted. Talk about false advertising!  Overall, though I can see nominating either lead, the picture as a whole isn't really "best picture." 

Night of the Lepus is clearly to be put to a different standard, but it fails that as well.  This time we are dealing with a cheesy animals go wild film from the early 1970s (oh look! it's Bones from Star Trek as a somewhat long-haired college president).  "Lepus" as in rabbits.  The set-up is fair enough, including Janet Leigh looking a bit dumpy as a mom/assistant to a researcher who should keep better watch on her daughter.  The big rabbits look cheap, but that's part of the fun. The problem is that by about an hour in, there isn't much more to do.  And, various people look a tad bored. Perhaps, if it was like twenty minutes shorter.*

Rory Calhoun would later continue his bad film efforts by being in two Angel films in the 1980s, the first one at least again a disappointing effort even on a fun bad film level (star teen pupil by day, prostitute who apparently never really has sex at night; saw parts on YouTube, got bored). I watched parts of this film during the Svengoolie film partially since the one on was a rerun.  If they had the rights, this would be a good film for that old monster movie block though when I suggested this on Twitter, the host tweeted back that they didn't get it since "the rabbit died."

I checked the re-airing of the Good Witch episode though probably would have had a better time than watching the Mets game.  Well, it would have been less depressing.  Realize it is only the beginning of the season, but we already have injuries (though a couple youngsters had very good outings early on) and the closer is out for a 1/2 year (not just a few weeks because of injuries) because he failed a steroids test.  Lost a half year salary, but he assures us (though he accepts the punishment) he simply doesn't know what happened.  Oh, and he won't be qualified for the playoffs. Oh no!

Good Witch, after a somewhat promising start -- again, low bar, here as a pleasant Hallmark Channel experience -- has been something of a disappointment as a series.  There is not enough "witchy" stuff and plot generally -- it is generally boring though I like the overall set-up and leads enough that give it a lot of rope. Plus, again, you don't expect much, so not too much is needed to enjoy it for what it is.  This is true about various things and it is a shame when even lower expectations (to cite an old MADtv bit) are not met.  The lead's 1990s soft porn guest appearance was on the other night though.  Naughty naughty.

Two quick comments. Got bored of iZombie though can see some people finding it a pleasant enough time waster.  Also, disappointed in the new style of the second season of I Didn't Do It.  It was an at times rather amusing and fun show; now it is a basically boring teen show without its former flavor.  Let's see how Veep (now somewhat misnamed) does tonight.

---

* It is allegedly based on a great sounding book in which the messed up rabbits actually are only a subplot. The charm of these films often are how cheesy they are, but this has the case of the borings.

Still, there are highlights, like when our hero tries to flag down a car by waving a shotgun in the air (the father in the car sensibly sticks to a no hitchhikers policy, especially those with guns) and then tosses it away after the failed attempt.  Might want to have that with killer rabbits around.  There is also the time when a policeman warns people at a drive-in:

"There is a herd of giant killer bunnies coming this way, and we need your help!"

This being the early 1970s and all, this doesn't faze them any more than when the sheriff heard about the killer rabbits or apparently when the National Guard is called in -- "hey should we like check if this guy is for real? nah!"  A scene involving two leads going into mine armed with a not very good flashlight and shotgun also had "you are too stupid, you deserve to die" written all over it.  Still, got to say, got pretty boring.  

Babs Still On The Case -- Mary Kay Letourneau Wants To "Return To Teaching"

There is a certain shall we say somewhat unhealthy draw to this story though we should not forget she was convicted of rape of a thirteen year old and most probably has mental issues of some sort. After she served her time, we would probably have the idea that the guy would have moved on. No, they are still together, with their two teenage girls (she has other children lest we forget). May/December romance with a twist. smh.

Faith Based Skepticism?

A "Christian" (meaning certain sort) film is getting some attention. There are good films motivated by such themes; it is a matter of telling a good story. Got into it in comments with a couple who don't really think Jesus actually existed. Go there to see some apparent "evidence." If you want to feel superior to Christians, going way the other way seems a tad ironic -- skeptics should figure it more likely Jesus existed as a human, just like any number of people we generally accept without more existed based on our limited source materials.

Boston Bomber - Execute?

The case for "no."

I'll Follow You Down

This is a sort of cerebral time travel film -- it is more about family drama and contemplation than actual time traveling. Overall, helped by a cast filled with faces familiar to sci fi (basically every main role), it is pretty good. Nice DVD find.

This Date In History ...

150 years ago is often deemed the "end" of the Civil War and the surrender of Lee's army is basically a sort of de facto conclusion. There were other armies in the field, at least one Confederate victory (minor skirmish in Texas) and trouble with a Confederate raider to come. The surrender of Johnston's army itself was an interesting process, including the general refusing to follow Davis' orders to not surrender. An act of treason?

Charity and Sylvia: A Same-Sex Marriage in Early America

This is a great story that deserves to be told. But, darn, if this book was a trudge -- it was like a high school student padding an essay with a ton of background and commentary. She also recently wrote an article summarizing same sex marriage in the U.S. over our history (interesting; article behind academic wall) much less tedious. Book still worth a look.

"Oklahoma Lawmakers Follow Kansas With Radical Anti-Choice Law"

Two states now have banned a common second trimester abortion procedure as well as after miscarriages (a cruel tack-on). The citation of banning "a procedure" is somewhat confusing; this article helps explain that this only leaves in place antiquated methods. There is a "serious health" exception that doesn't cover various things including (reading OK law) suicidal tendencies. Not rape. And, it's not a matter of the alternative abortion procedure itself being dangerous to her health. Seems unconstitutional, but who knows these days?

RIP

A few celebrities died recently but two have special significance for me -- James Best (who I just saw on The Twilight Zone) was Roscoe P. (emphasis) Coltrane on The Dukes of Hazzard. And, Geoffrey Lewis, father of the actress, popped up on loads of shows and movies.

"Griswold at 50: Contraception as a Sex Equality Right"

Abortion rights are often argued thru a sex/gender equality lens, so this short and sweet (seven pages) argument as to birth control makes perfect sense. It is also an example of using available material in different ways, potential often there, if it is seized. Overall, it shows the multifaceted nature of the subject at hand, which particularly interests me.

PS

Two things. As suggested at the blog linked, my annoyance was a continuance of some past comments, particularly involving Judge Moore's actions regarding the SSM litigation there. Two, as usual, this isn't meant to be overly personal -- I'm citing it as an example of a general concern. Other people rubbed me the wrong way and when I eventually bluntly commented that their style came off as annoying, a few were also babyish about it.

"University of South Carolina joins the mob"

How? Well, a student was suspended for usage of a racial slur on a dry erase board in a study hall. I don't think suspension appropriate, but am tired of this rhetoric. And, I think the professor is being a bit of a jerk. If the 1A compels not allowing public universities to set up minimum politeness rules even in study halls, fine. It still is not a "mob" action "silencing" debate. And, note not only can't the "n" word politely be cited there, nor is it simply treated the same as the general idea in 1A law, but being honest leads to him sounding like a baby.

Better Call Saul

A moment of truth arrived as the first season ended. Didn't really like the finale though it was okay and accepted various parts of it basically. See here for further thoughts.

Mets Win / Closer Out

"Could we survive without factory farming?"

True, "it’s hard to see how we could sustain current American meat consumption," but didn't take that as the question. The resources it takes to raise animals is fairly inefficient if the concern is merely to "feed a crowded world." There is no "juvenile romanticism" here unless we pretend raising animals factory style for food will stop soon. Who does that?

Let's Play Ball!!!

Real baseball started last night with the Cubs not quite looking ready though the pitching as a whole was good. Lester was a somewhat curious choice, since he seems not quite ready.

See Ya Next Week

Line Drawing

The same sex marriage debate repeatedly brings up people who flag line drawing, at times saying they really do not care, but figure we should be consistent. Since you know it is merely happenstance same sex couples are not treated like brothers having sex with sisters. Oh shut up.  Others do it as a parade of horribles. Again, they manage to understand the logic of line drawing in various contexts, including as a matter of policy.  Lines are drawn.  They are not always totally logical, but we still manage them. So, what is an "unreasonable" search?  "Excessive" bail? 

The same applies in the First Amendment area. Some of these lines are questionable but traditional categories are given special protection though over time that tradition (e.g., commercial speech used to get little protected) changed.  One area that we draw lines here is between sex and violence, which is handled differently in different places such as France being more open about sexual relations among minors. Thus, teen nudity is more prevalent in certain European films.  I do not think obscenity should be unprotected but even there I can manage to see some difference between children or non-consenting viewers in public places being protected from watching live sex shows in the park and "Fuck the Draft" t-shirts. 

Lyng v. Northwest Indian Cemetery Protective Association involves use of federal land by certain Native Americans for their rituals. This is the core of "free exercise" like use of peyote or alcohol for sacramental rituals or not denying someone unemployment benefits for not working on their Sabbath.  The Supreme Court has noted that trying to find a "core" part of a religious faith is not somewhat they could reasonably do but "substantial burden" is a test that is cited.*  And, as with discretion over religious education being particularly respected, realistically I do think something like that matters. But, use of federal land (or in another case, how the government uses social security numbers) is an internal governmental matter.  The government can respect such practice (and other cultural concerns) but they have discretion.

Some are against special protection of religion (e.g., why not give parents the right to take a day off for family reasons? cultural reasons?)  and there are other things we should protect (parents have the right to send children to private and parochial schools in general).  But, the First Amendment does protect "religion" in particular, including with a ban on governmental establishment.  We can define the term broadly and respect parallel matters involving conscience, but bottom line, it's there.  And, there are sound reasons, again if the idea is broadly defined, to do so.  Both given practical realities and given its basic importance.

It isn't the only thing out there and there are balancing to do when protecting religious liberty.  So, some care can be done when assigning homework in public school, but mere exposure to certain teachings (including evolution; there certain requirements -- like creationism -- would amount to religious education, putting aside the bad science) is basic to public school.  Ditto to the public market place.  The basic set-up there is equally serving the public, even if you do not agree with their beliefs or find it immoral to do things like serving unveiled women. 

Recognizing this will help when setting up line drawing and sometimes can very well lead to some voluntary actions (e.g., you really do not have to go to that shop if it upsets the owner most of the time, even if legally they have to serve you).  This includes more willingness to respect certain actions that some on the left, let's say, are not that happy about. For instance, it is pretty much clear that even though they might get paid, the Catholic Church can have only male priests.  Putting aside federal funding issues, people also realize some private college can discriminate in various ways in setting rules for their students. OTOH, even there, denying a woman dishwasher health benefits could be a problem. 

It's tricky, but the some need to do a better job doing it. It is reassuring the governor of Arkansas and the Indiana legislature appear to have seriously taken this to heart. This doesn't take them off the hook and the devil will be in the details, but it does show a serious concern about balancing various interests even in conservative areas. And, like some significant corruption prosecutions, it shows that protests and public pressure has some real results.  It's hard to see sometimes, but change does happen.

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* I noted that some people do not have a "Sunday only" sort of philosophy here regarding proper religious exercise, sometimes your every day actions have religious significance. Certain things like the religious role in marriage results in special dispensations in that area while clergy involvement in some other area might not get as much attention. Our respect of religious acts here tend to result in some favoritism, which was blatantly seen when Orthodox Jews had to take two days off given Sunday closing laws. This is going to happen somehow, probably, given the reality of things. For instance, special concern is given to conscientious objection and also other  "life" concerns (see the problematic Hyde Amendment, which favors some beliefs over others as applied).

Not fighting in a war (or even working at a plant making bombs) is a life and death matter. But, when this is taken so far that IUDs cannot be part of your employee health coverage, things are being taken too far.  I flagged this at a Catholic leaning religious liberty blog, but that you need (at least prudentially) to realize you need to have some perspective here was ignored by some people.  Some examples from opponents of religious exemptions (or "religion" in general) going too far also can be cited. 

"Religion" as Witte noted is a broad open-ended thing, but as applied, if applied too broadly, it would be so open-ended to be unworkable in practice. The other approach -- treat religious acts the same way as other acts -- does not work well either.  So, line drawing.  No one promised you a rose garden.

Free Exercise

John Witte's book Religion and the American Constitutional Experiment is a good summary and helps provide an understanding of the somewhat surprising limited discussion of free exercise in Supreme Court opinions.  This includes the argument "prohibition" should not be seen as a limited term, but one that guards against limiting free exercise as well.  "Religion" is a tricky thing to define and the Supreme Court rarely tries to be specific. Witte offers "embraces a creed, a cult, a code of conduct, and a confessional community."  I take it though that even a single individual can have a "religion" in some sense. 

An early case involved polygamy and belief was separated from action: "while they cannot interfere with mere religious belief and opinions, they may with practices." But, the breadth of odium the opinion inflicts on polygamy suggests -- if it was around -- the ban would meet a "compelling interest" test, including to secure equality. Other cases involving mere advocacy of polygamy would be no longer good law.  Some "animus" could be shown by the breadth of some of the legislation. The basic non-recognition of polygamy, however, might still hold though even in the 1940s some (dissent) realized some of the rhetoric against it was overblown. 

The first cases handled by the Supreme Court involving free exercise in effect protected church autonomy such as in property disputes that turn on doctrinal disputes.  Witte notes that part of  "free exercise" was the right to join fellow believers in religious societies and have autonomy therein; this also would involve rights for religious motivated corporate bodies.  Overall, this included religious worship, assembly, speech and so forth. Quakers would have the right to meet and so forth without special licensing being required.  This would include religious education.  

Various 20th Century rulings dealt with some of these latter matters, which overlap with other First Amendment provisions. Pierce v. Society of Sisters, e.g., allowed parents to send their children to parochial over public schools.  Jehovah Witnesses had various cases involving public preaching, handling out leaflets (a limit here was child labor laws) and the like.  Oregon v. Smith later treated allowing the Amish to only send their children to so many years of school as a "hybrid" right of free exercise and parental liberty.  But, query if -- as I noted in the past -- if religious education is a core of free exercise so that it can be treated special even if the law in question is "general applicable"?   A pass on all laws is untenable, but some sorts of coercion would be particularly problematic here. 

The core of free exercise has been deemed freedom of belief, not singling out religious practice itself for discrimination (a sort of equal protection provision, more important before there was an Equal Protection Clause) and autonomy of religious institutions.  "Belief" here would include speech and association, "speech" probably including certain symbolic actions or rituals. A few justices saw it as a matter of free exercise, but non-compulsion in respect to the flag salute was treated as a freedom of expression matter.  I think the concurring justices had the best idea, especially since the Jehovah Witnesses were motivated by religious belief. Coercion to act here truly would in effect "prohibit free exercise." 

Religious institutional autonomy along with various rights with a religious component provides limits to the "belief" v. "action" split that was reaffirmed in Oregon v. Smith.  Equal protection also provides a barrier here to deprivation especially when fairly applied.  Overall, however, "free exercise" would involve some sort of actions. Religious exemptions, especially in the area of military service, has continuously respected this fact.*  The Constitution itself allows oaths and affirmations, respecting the religious beliefs of some in that area.  Things were easier when there were less regulations and differences were basically among Christians. 

Exemptions to major duties and laws that involve threats to the public order would have limits though.  This continues with concern with harms to third parties in current disputes over state and federal RFRAs.  The core of free exercise was and continues to be personal.  As noted in Cantwell v. Connecticut, free exercise involves "freedom to believe and freedom to act. The first is absolute, but, in the nature of things, the second cannot be."  Freedom to believe would involve various matters of expression and association.  The "act" part is trickier.  But such things as peyote use should be protected no less than handing out sacramental wine or intermingling of the sexes and races back in the day when that might seem a problem.

Peyote use is a somewhat easy call -- it is a sacramental act, a clear case of religious worship.  Such acts, as seen by the child abuse scandal in the Catholic Church (and they weren't alone), are not by definition totally banned from state involvement.  Marital rape can be addressed even given the privacy of marital bedrooms.  Still, easy case, more to the core.  Some do have a broader sense of religious duty as seen by the rules of Judaism and Islam where there is a bigger combination of the public and private.  Religious duty is not limited to holy rituals and places.  

It is therefore trickier to draw lines.  We see this in the current controversy. A proper balancing can be made that respects all involved, free exercise in society not a matter of everything goes. To be cliched, this will result in some difficult questions, but the right answers (e.g., insurance that eases the ability to freely choose pursuant to one's personal beliefs) can further the free exercise of all, not just the favored class. An old story.

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* Oregon v. Smith took notice, e.g., a category of cases where those who could not work for religious reasons still obtained unemployment benefits. This involved matters of the administrative state that respected individualized judgments, including exemptions. This was treated differently than general criminal laws where such exemptions were not as prevalent.  Not that in practice there was quite such a clean line.

To me, the case would have been better left in that category, which is how the state courts handled it.  Anyhow, here religious needs are treated along with other special situations.  The greater involvement of government also leads to less possibility of clean separation of church and state.  Free exercise in various cases, though simply treating religion the same as secular actors won't work either, would warrant equal treatment.

PSA