Justice Gorsuch

Only a matter of time. The general sentiment appears to be he is a young (49) Scalia type wunderkind who would be an ideal choice if he died now. Well, for a conservative President. But, that is not what happened. Obama was robbed of a justice and Republicans couldn't even deign to have hearings. Horrible on basic civics levels, putting aside politics. Democrats must play hardball here. Screw the "be reasonable" unilateral disarmament brigade.

ETA: Dawn Johnsen being blocked as OLC rankled, saw it as of special symbolic importance.

Meanwhile: Another last minute death penalty rejected blocked without comment, including from RBG who supported a stay. Sen. Gillibrand (NY) supports a filibuster, but based on ideology. Facebook message doesn't MENTION Garland.

Two More Reviews

I was wary that the hype for La La Land was too much and was right. Some of the set pieces were good but the film as a whole (including the downer ending) was not. I was repeatedly bored. Elsewhere (a YA novel from about a decade ago), suggesting when we die we go to another land, age backward and then are reborn, was very good.

Maresi (The Red Abbey Chronicles #1)

This is a Finnish book (the English translation of the second book is due soon) about the trouble that arises when a newcomer arrives at an isolated island abbey. It does a good job building a different world and very good when it gets to the height of the plot, but takes a bit long getting there. For those who like the universe created, this might not be an issue. Well written young adult fare with some serious violence involved, if often under the surface.

What's Wrong with the First Amendment

Looking at something I wrote concerning the First Amendment, my line for restrictions was physical harm to others. But, even then, I understood there were various other constitutional concerns such as fair trials to take into consideration. Absolutism doesn't work, so a liberal critique that also shows how it is not protected (e.g., restrictions on protests) is helpful. OTOH, this one is a tad too heavy-handed, making broad statements about "pornography" or "commercial speech." Ironically, it should have taken its own advice on proportionality.

Super Bowl: Pats v. Falcons

Two more lame games today.

Roe at 44

I have wrote a lot about abortion and Roe v. Wade since high school and much can be found on this blog by clicking the hyperlinks or doing a search. Here's a post in response to the C-SPAN landmark series episode. The fight continues, a chill wind blowing.

ETA: Anniversary on Sunday, so Republican return of global gag rule occurred the next day.

Women March On Washington (and Other Places)

Today was basically protest day. Kudos to those who protest and stand together against those now in power and for justice and all that good stuff. Basically, bottom line, have to do what we can, when we can. But, feel like I'm in a burning house, the flames nearby with those in control gleefully tossing on more gasoline. I don't want this to be my America.

Loving

Needed some solace. The Museum of Moving Image had free admission today, including a showing of Loving (dramatized look at couple behind Loving v. Virginia). The local councilman, in a same sex marriage and ready to go to tomorrow's women march on D.C., was on hand. The audience shared his politics. A good way to help deal with ongoing events. Leads are excellent and film very good in some ways, but it tapers off late. Not quite there.

And Also: Don't really like them starting in media res with no flashbacks to when they first met or something. It is actually the sheriff who hints how racial fluidity is accepted by Richard. Too many shots of him bricklaying too.

It Begins ... I Dissent

Chelsea Manning Among Those Whose Sentences Commuted

Obama has a record of commutations, pardons are much less, no matter how much ideally he should have done much more. One person among the last couple batches is of special note. I think she was rightly convicted for releasing hundreds of thousands of secret materials as a low level military official, no way merely "whistle-blowing" of illegal actions which endangered innocent parties (which all her defenders from some comments appear don't give a shit about). But, seven years is enough, especially since she admitted fault and didn't flee to Russia, putting aside abuses (how horrible is unclear to me) regarding her treatment.

ETA: "Traitor" is kicked around but she wasn't convicted of treason. Her actions were deemed to have "aided" the enemy, but she was found innocent of that charge. Yes, all sides use the term loosely, some in fact calling her a "patriot." I hold to the idea there is a moral reason to submit to the criminal justice system, fears of mistreatment can apply to those we don't like.

You Chose Unwisely

Things To Come

I have had the chance to see more movies lately in theaters, an experience I have long enjoyed, luckily enjoying each film. This was a late decision, but was another good one, additionally got to go to the charming theater in Pelham NY and the mini-screening room with the comfy chairs. Isabelle Huppert is great and charming to see an actress who looks great plus middle aged (she is 63/looks in her 50s). This review reflects some of my thoughts.

MLK Movie/Book Quickie

Note the new book on the side panel about the the black civil rights great (lawyer, poet, activist, minister etc. etc.) Pauli Murray and Eleanor Roosevelt. Well timed for yesterday's holiday along with Hidden Figures about three black women's role in the space race. The movie follows norms enough to be widely accepted (some think Moonlight, e.g., is not getting enough support) but has a lot going for it including performances, civil rights messages and family/love stories. Plus, by movie magic transfers us to another time.

Divisional Round

After early offensive efforts, a penalty started the path to another blowout for the Falcons. Texas actually made a game of it early but had no real offense (maybe three points? rest thanks to defense) and Pats laid on the points after intermission. The other two games were finally evenly matched, Dallas coming back from 18 down only to fall in the end after Rodgers had one last killer throw. Penalty taking back a two pt conversion late key to the second game. Only saw half of first game; saw and enjoyed Hidden Figures. Saw end of second.

First Execution of 2017

The first execution of the new year was not for someone many would find sympathetic though the same might be said about the two victims. This is someone who you would fear might snap and kill someone in prison, but not sure if we are talking "worst of the worst" here. One of those scary people who might snap for not so big slights. But, it isn't just about him and execution big picture does not seem to be the way to go. No comment from SCOTUS. Again, not a great option, but do wish there was more capital dissents.

Obama Articles

Obama gave his farewell address last night (is it really next Friday? wah), but he has been busy writing stuff. A recent long effort talked about a President's role in criminal justice reform, only partially about his own efforts. He also wrote an article on climate change. And, he wrote an article on ACA, including discussing hypocritical Republican opposition. Sure, question if he wrote every word, but it's believable he had a key role. Sigh.

Reviews

War Against War is a new book and was a good read about the peace movement against WWI. Also liked Manchester by the Sea by the same writer/director involved in the superior You Can Count On Me. This one upped parents dying with a parent/brother [played by Kyle Chandler] dying AND three young children. Charm was not only the great acting, but the relaxed feel of it, like we were dealing with ordinary sorts who used "fuck" a lot. During the Golden Globes, abuse allegations (denied) arising from a past work arose about the star.

Wild Card Weekend: Division Leaders sweep

There were two back-ups (one a third stringer) and a regular perhaps playing with a sore hand and the scores showed it. Not totally sure about the last part; the Lions v. Seahawks an unbalanced affair in general, the Lions finding ways to lose, the others a way to win. Dolphins have found ways to win even with their back-up, but played poorly today vs. tough Steelers. The Texans lucked out -- figured with the actual starters, either potential competitor would beat them easily. Giants defense stop Packers for around 20m.

ETA: Dolphins probably glad just to get in, Detroit might have been too (and used to playoff futility). NYG might honestly felt the same way given their poor offense. Oakland saddest result given potential without late season injury. Texans also (tbh) probably see rest as gravy. Still, fans have a right to expect a bit better than four unbalanced results.

Insanity Official

Congress officially counted the electoral votes on Friday, perhaps appropriately the unofficial end of the Christmas season. A few Democratic House members on various grounds challenged the count, but unlike Sen. Boxer joining in 2004, no senators did. So no two hour debate on question. Disgusted not a single senator was willing to join in. These were real issues and we deserve at least one gadfly (RIP Nat Hentoff) who doesn't compromise like this. The normalization of Trump, with appreciated occasional comments, continues.

ETA: Yes, Nat Hentoff has died. I was a consistent reader of him at the Village Voice and on the whole liked him. At times, think he went a tad too far without proper nuance. For instance, for Bush v. Gore without noting how the winners had very unclean hands etc. Clinton is the worst President? But, gadflies often are like that. Then again, even though he was pro-life (against death penalty too), he supported free speech in Rust v. Sullivan.

Religion Cases

I appreciate the attempt here to view "a Texas Rule Requiring Fetal Burial or Cremation" through the eyes of a pro-life individual and added some thoughts at the linked blog post.

My support is reflected in my attraction to fiction where the voice of various characters are portrayed, including television/movies where there are various subplots involving different characters.  Of particular interest there would be viewing the overall plots separately through the eyes of different characters.  Finally, going back to the first point, I support trying to narrowing down disputes, having common ground but showing how a specific thing is wrong.  This could be shown even by using the arguments of both sides, if granting that at some point there is a separation of opinion.  But, even there, the separation is not as blatant as it might at first appear.  Perhaps, this will be tested this year.

My listening to Supreme Court cases involving holiday displays was expanded to other religious disputes, including those involving the schools.  The first audio we have available is in the late 1950s, so the first cases there would be the Sunday Closing Law Cases (not addressed here) and then Engel v. Vitale.  New York in recent years has been more attactive than some in trying to uphold the separation of church and state, but in this 1962 case in which a school district formulated this prayer for public schools:

Almighty God, we acknowledge our dependence upon Thee, and we beg Thy blessings upon us, our parents, our teachers and our Country.

Justice Black used history to determine that formulating prayers in this fashion is a core wrong that the First Amendment was in place to avoid.  This was done in part to protect religion itself.  The opinion also, apropos to recent doctrinal disputes,  argued that coercion is a basic concern of the Free Exercise Clause while the Establishment Clause goes further (though establishments tend to have some form of coercion). The justices at the time (aside from Justice Stewart, a lone dissenter) were more separatist, an earlier "release time" case largely based on there not being separation of church and state.  [I have an interesting book written by the mother of the child in question, who had the symbolic biblical name of "Vashti."]

Justice Stewart in this case and a pair of cases shortly thereafter involving reading verses of the Bible (and in one case the Lord's Prayer) dissented, seeing this as a matter of free exercise. Sounding something like Scalia, he didn't think much of the rhetoric and focused on various practices where recognition of God were accepted.  The majority opinion by Justice Clark (a conservative on some matters, but supporting liberals in this area as well as privacy cases) rested more on doctrine (or perhaps rather used the case to formulate some) while various concurrences went their own way (Douglas as in Engel to expand, Brennan to provide a long essay trying to cover all possible bases as some long advisory opinion and Goldberg/Harlan to note sometimes there won't be much there).

The dissent argued the majority opinions made mountains out of molehills and denied benign free exercise, which is also protected by the First Amendment.* Glasshouses on the sense of perspective point. The formulation of a prayer is somewhat different than "God Save This Honorable Court," a long used motto of sorts, especially when a teacher and students say the prayer in question instead of a court crier.  The special degree of coercion in place for schoolchildren here was particularly underlined in later cases.  The everything but the kitchen sink nature of the references -- such as presidents choosing to say "so help me God" -- also are not all alike in relevant part.  The majority in Engel handwaved away the concern:

21. There is, of course, nothing in the decision reached here that is inconsistent with the fact that school children and others are officially encouraged to express love for our country by reciting historical documents such as the Declaration of Independence which contain references to the Deity or by singing officially espoused anthems which include the composer's professions of faith in a Supreme Being, or with the fact that there are many manifestations in our public life of belief in God. Such patriotic or ceremonial occasions bear no true resemblance to the unquestioned religious exercise that the State of New York has sponsored in this instance.

The usage of phraseology like "of course, nothing" is suggestive since if things were so patently obvious, why the need to address it?  Yes, there is usually likely to be dissent to even broadly accepted things.  But, the constant citing of such things do show there is something to address here. The addition of "under God" to the Pledge of Allegiance in the 1950s, e.g., had a particularly religious purpose to differentiate us from "godless" communism.  It is to my mind a problematic matter, even if a formulation of a prayer is a much worse.  Or,  requiring a government official to believe in God.  But, once you feel a need to have schoolchildren honor God while performing a basic patriotic exercise, the step toward more restrictive (denial of an office of notary public) matters is foreseeable. Ditto, the idea "religion" or "religious freedom" only entails belief in God.

There is a difference -- though "separation of church and state" is a more nuanced term than at first blush here -- between various "manifestations" in public life, in particular involving government entities and violations of the First Amendment.  Various forms of a deity is expressed in the Declaration of Independence, e.g., but that is different (and Art. VI expresses bans it for federal offices) requiring a sort of "test oath" to reaffirm belief in a "creator" or some such thing.  I'd note a few things in the DOI aren't worthy of honoring, including how Native Americans are labeled.  Personal usage, be it a President or a student independently, is also different.  Students can pray before school or join religious clubs, admitting some nuances there being possible (e.g., religious clubs right after school in kindergarten).  But, the "free exercise" there is different from the school itself selecting a specific prayer or religious work to read from daily.

As noted, not all of the "ceremonial deism" often cited here are readily explained away, including usage of "In God We Trust" on our coinage. The other main argument there (going back to Madison, but see also that Goldberg opinion) is that some usages are so minor to be not truly "establishments" or laws respecting them. We don't really work on an absolutist level in this country in that respect.  Again, this doesn't make them fully benign and having a national anthem that honors a specific religious belief or the like adds to a general sentiment that runs into the basic problems addressed in these opinions.  Consider, e.g., Justice Black's separate opinion in the flag salute case that suggests that any test oath -- even the Pledge of Allegiance before "under God" was added to it -- was problematic, at least if there was some real pressure to say it.

One thing these cases did was expand the reach of "religion" as seen by a footnote in Torasco v. Watkins (involving a requirement to believe in God to be a notary public) and Chief Justice Warren during oral argument there and the Engel case bringing up Buddhists.  Earlier cases repeatedly spoke of religion as related to belief in God (an afterlife -- where one is judged for ones sins -- also was a key concern), the oath requirement a means to guarantee a person realizes being bad has consequences.  It's notable that even there the Constitution set up an alternative to affirm (Jesus after all favored that approach) and no religious tests for federal offices.  The state in Torasco tried to argue "religion" only involved theism but that would carry too far given current day understandings.  Not that some still accept state endorsements of religion that are nondenominational enough to pass muster for some.  Thus, religious liberty claims that can burden the beliefs of some, including beliefs involving abortion and contraceptives. 

Once a upon a time, that in effect was "Christian," or even (see the types of bibles used in public schools) Protestant.  It is somewhat ironic that Justice Douglas became such as separatist given his "We are a religious people whose institutions presuppose a Supreme Being" sentiment in an earlier opinion gave and still gives so much ammo to the other side.  Douglas basically repented from the breadth of his rhetoric here, but how really does our institutions so presuppose?  Does the three branches of government really require a Supreme Being?  Many do think God is a necessary part of things here, from creation on, but non-theistic religions alone show that morality etc. is possible there without one.  And, yes, we are "a religious people," but how that is and should be expressed is another matter. 

The Declaration of Independence does state a founding faith tying our rights and existence as a nation to some sort of Supreme Being.  But, the Constitution itself doesn't address that question and some in the beginning and later on (support of an amendment to address fact arose in the 19th Century) were concerned with the lack of a reference to God or our reliance on such a being.  Religious freedom itself (broadly defined in various opinions to involve things like "conscience" or "belief") does not even so require as various cases (U.S. v. Seeger defined belief in relation to a "supreme being" as "whether a given belief that is sincere and meaningful occupies a place in the life of its possessor parallel to that filled by the orthodox belief in God of one who clearly qualifies for the exemption").  Anyway, not only can the words of the Declaration be taken in various ways, but even granting a sort of "creator" or whatever, government endorsement or some sort of test oath can be a problem. 

The opinion is useful though in noting that there is some mixture of church and state in various respects, the Free Exercise Clause itself honoring the importance of liberty over choices in that context. More so mixture of religion in public life, including those cases where governmental officials and bodies are involved such as those comments by politicians.  Again, this doesn't mean I support the legitimacy of all of them or their validity on good policy grounds (see, e.g., at least some usage of legislative prayers).  We can compare our situation with let's say France, where a concern for secularism in public places, including a level of conformity on the matter, allows barriers to religious attire that we would find problematic.  See also a recent opinion in India involving the sort of political appeals -- including religious in nature -- are allowed in political campaigns.

As the Christmas season comes to a close (Friday or Saturday being the de facto end for some), the complexities of this question is part of the various things on my mind. After all, "the reason for the season" is not any one thing for all people, the timing of Christmas itself a result of existing practices of those with "pagan" beliefs.  Thus, there are a range of holidays of cultural and religious significance at this time of year.  And, even for those who celebrate Christmas specifically, there are different ways of going about it.  Including listening to Supreme Court arguments.

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* Justice Stewart dissented in one of the Sunday Closing Cases on free exercise grounds where Orthodox Jews were burdened because they already weren't open on Saturdays.  He went along in Sherbert v. Verner (Justice White, interestingly did not -- as noted in the past, his separate views here are intriguing as well as consistent -- he gave more rope to the state both to support and not support religion) on free exercise grounds as well.  This is not surprising since in his dissent in the bible reading cases he argues the chief concern overall is free exercise, which makes the Establishment Clause a sort of lesser partner.

Still, even on that level, think of the use of legislative prayer, which can be acceptable and still be problematic in application.  Why not use readings from various religious works, if the idea here is to honor the religious needs of public school children?   He does note that free exercise requires an opt out to avoid coercion, but realistically the system itself will bring pressure to conform.  Handwaving about how minor all of this is doesn't change any of this, putting aside that in practice, things often are more sectarian and coercion than the rules might suggest.  

Stewart and the dissent make a good case that requiring a special exemption raises difficult questions.  There was a middle ground possible too here given the nature of the exemptions in place, particularly in that neither cases involved an absolute rule of opening or being required to work. Cf. this later case.  This middle ground would help in recent disputes too, balancing free exercise with establishment (including excessive favoritism of religion) and other concerns. 

115th Congress

Per the 20th Amendment, the new Congress began today, with a special preview (ethics) first being reported on why the governing party are assholes. With this, the Garland nomination is officially dead. The whole thing is disgusting, including how Democrats (including at the Convention) didn't do more to underline how wrong it was not to even give the guy a hearing.

NFL Week 17

Pats went up early and Dolphins blew at least a couple shots at making it interesting. Jets again found a whipping boy in the Bills, going 5-11. Panthers tried to win it near end but failed. Browns managed to lose in OT. Oakland will drop from possible #2 to #5 but should beat the Texans even with a back-up. Other games. Unlike some teams, Giants kept their top QB in for a "meaningless" game vs. playoff hunting Redskins (win/in; lose the loser of the night game still in). Defense held late, even tacking on six on last play. 19-10.

Update: Not that the first guy did that well, but Oakland on their #3 now. Green Bay won (quick FG at end of 1st Half after nice Lions drive started it) & will play NYG.