Countess Dracula

Inside a lot, many have Netflix or pay cable favorites to "binge" on, but have not. I got word of the next day closing of the NYPL late or I maybe have (if allowed) some more t.v. DVDs etc. But, have found some movies, mainly on commercial cable channels including Up TV. Found this on a high channel fairly recent addition. Hammer film; lot of atmosphere. Fun. There is a lot out there, including this bunch of old shows. Hey! It's March 31st!

Beyond the "Horribles"

The Court has long recognized that, because the Bill of Rights is designed to secure individual liberty, it must afford the formation and preservation of certain kinds of highly personal relationships a substantial measure of sanctuary from unjustified interference by the State.

I will now broadly cover what the "horribles" of the two recent posts ultimately concern. Robert v. United States Jaycees determined rules to require women to be allowed to take part in meetings of the named business organization was not a violation of the freedom of association. This provided a chance for extended discussion of both intimate and advocacy associations, the former not as directly about carrying out religious [e.g., marriage as a sacrament or raising children in a certain faith] and other purposes of the First Amendment as the latter.  Nonetheless, both are honored and protected in this country.

Without precisely identifying every consideration that may underlie this type of constitutional protection, we have noted that certain kinds of personal bonds have played a critical role in the culture and traditions of the Nation by cultivating and transmitting shared ideals and beliefs; they thereby foster diversity and act as critical buffers between the individual and the power of the State.

This shows how intimate association (as with "privacy," the term "intimate" should not be given a limited meaning) furthers First Amendment values. Nonetheless, it also is honored as a wider matter of liberty particularly when involving marriage, family and child-rearing matters. Certain matters are matters of personal choice, including forming relationships with others. Thus, two justices in one case noted that the "opportunity to make friends and enjoy the company of other people" was a constitutional liberty. The zone of privacy involving various groups recognized above is the sort also early on flagged by Justice Douglas.  Romantic and sexual relationships factor in here, even ones (like in Lawrence v. Texas) that are fleeting.

The "horribles" suggest that regulating such associations often take into consideration their ends. Thus, e.g., informed consent laws that are correctly crafted are acceptable and actually ideal in a range of areas, including reproductive health matters.  Such laws advance the interests of the associations as compared to requiring doctors to provide ideological cant such as "life begins at conception."  This also shows how something can be problematic because it clashes with some other principle.  Same sex marriage is fit into marriage's ends; not treating it equally is wrong.*  Free speech and other interests arise too. For instance, repeatedly vague rules ("unnatural") are arbitrarily applied.  This is even if the ultimate rule (even clarity doesn't warrant interfering with sexual freedom on private morality grounds) itself is also a problem.

A basic example here is obscenity, which often was a battle of clarity, only two justices at the start willing to simply reject the line itself.  I flagged this already -- so, e.g., Justice Douglas in one case simply asked, why shouldn't things like fetish magazines be protected speech? The ideas might seem distasteful and trivial, but not only is that really the case [one can find deep analysis on why], even that sort of speech is protected.  Some lame teen comedy from the 1980s is protected speech as much as Breakfast Club.  Ditto something like sex toys, which various lower courts protected (not all of them), which might seem a bit trivial (or embarrassing) for the Supreme Court to take up, but yes, a basic freedom is the freedom to use a dildo.

All of this is what is involved when we examine lines and outer limits. Use of "horribles" are easy ways to suggests borders of right/wrong.  We all do this in some fashion and any discussion is likely to have such familiar extreme hypos that drive people to say "I don't mean that!" or "come on!"  So, being that guy, even when the two horribles to me were dubiously applied, I realize there is a wider discussion to be had.  So, yes, control of one's health including reproductive choice will at some point lead to questions of euthanasia and medicinal marijuana.  And, why stop there? One movie had a suffering patient get a strong opiate, medicinal heroin.  Thus, the last two "horribles" do deserve some discussion.

Ultimately, freedom involves "certain  personal  choices central  to  individual  dignity  and  autonomy,  including  intimate  choices  that  define  personal  identity  and  beliefs."  This includes relationship choices of a wide range, bad choices as well as good.  In some fashion, "horribles" will be factored in there.  We should be able to handle that but as with all horror, it is at times messy.

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* I find originalism tiresome so do not think it "sad" that a workable approach results in today applying basic principles in way their originators would find rather surprising.  The level of restraint turns out to be more limited than we are led to believe, the overall general principles involved so open-ended in practice that it is not really worth separating it into a new interpretative realm.  That is, as a book by that author flags, unless it is a matter of faith.  Flag as well his favorite singer, Billy Joel.

Equality includes using overall principles and applying them to today's realities. This was done in a fashion in 1970s case involving the right of a grandmother to have certain family members reside with her.  The function of family, not "standardizing" was honored.  This would eventually be respected when same sex families were seen as normal and even then single parents, blended families and so forth showed the breadth of the principle.

SCOTUS Watch

Another virtual Supreme Court order/decision day if with less action than last week.  The one opinion had thirty pages of discussion (Sotomayor with Alito/Thomas in dissent), which these days is somewhat notable with many quickie opinions.  It involved a major oil spill and a lot of money so notable even if the "plain language of the parties’ safe-berth clause establishes a warranty of safety" is a specialized sort of dispute.

The Order List  had a single grant involving some sort of technical Bivens damages claim that the government brought (the respondent is King, James; not King James -- English royalty joke) against a claim of excessive force.  Given the conservative majority has little love for such claims, it might be something of a red flag.  Various things including agreeing to attorney fees in one case and oral argument time in another.  We also had the usual list of rejections, one for which Breyer didn't take part in (for financial reasons? it would be nice to know on the record per a pending House bill), one that three conservative justices wanted to take (the case was "relisted") and this:

Recognizing that the Court has repeatedly declined to grant certiorari on this important issue—whether the right recognized in Johnson v. United States, 576 U. S. 591 (2015),  applies to defendants sentenced under the mandatory Sentencing Guidelines—I [Sotomayor] will cease noting my dissent in future petitions presenting the question.  I hope, however, that the Court will at some point reconsider its reluctance to answer it.

Such little asides are what loyal readers of orders live for. There are also the technical references that again warrant some sort of key such as "application to recall remittitur"  or (for "Juvenile Male" v. U.S.) "The motion for leave to file a petition for a writ of  certiorari under seal with the appendix available for the public record is denied."  Anyway, there is another conference this Friday and the SCOTUSBlog live blog said there is no implication there will be more opinions scheduled this week.

If anything changes, will update.

Virus Update

Keeping mainly at home, helped by various things shutdown, I find it hard to do much more than spend a lot of time online and perhaps watch comfort television. It might not be just that, but other than a quickie Bob Newhart autobiography, the last couple weeks was a bunch of failures trying to get into books. I'm starting an interesting one on the 25A by a key "founder," but even that is taking a long time to get a bite into. Others with more structure (kids, structured work from home etc.) might be doing better. When I get my check as part of the stimulus, maybe that will help. This also seems right, more or less. But still.

As to my health, I seem okay, though have off and on a sore throat. No fever, cough or other such symptoms. But, maybe, I have a mild case. Who knows. I see that New York has postponed the presidential primary until the state primary in late June. Did get a text asking for support from Sanders. The next primary is now Wisconsin on April 7th. Puerto Rico and Ohio are the other of some note. Thinking that end of March opening date for NYPL is doubtful ("until further notice") on the website. MLB Opening Day passed. Saw a reference about a summer return but then saw "by late May." Seem optimistic. Don't try to stuff too much in there. Biggest concern should be support personnel.

It's crazy and I respect the difficulties in handling it though Trump has a lot to answer for there, including his usual craziness and basically criminal behavior. OTOH, I live in a state where leadership exists, which is good given the range of the problem here. Contrast.

The Polygamy Horrible [8000th Post]

[As with the last one, I added a bit after published and there were various posts on polygamy in the past. A basic thing here is that in law as in life all is not a clean whole, there are lines and hazy edges. Life is a bit horrible now, but that rule applies with most "horribles" of this sort.  And, in the end, it isn't that horrible much of the time.  It's rather interesting.]

We must recognize, then, that polygyny, like other forms of marriage, is basically a cultural institution rooted deeply in the religious beliefs and social mores of those societies in which it appears. It is equally true that the beliefs and mores of the dominant culture of the contemporary world condemn the practice as immoral and substitute monogamy in its place. To those beliefs and mores I subscribe, but that does not alter the fact that polygyny is a form of marriage built upon a set of social and moral principles. It must be recognized and treated as such.

Justice Murphy, who by some accounts might have been gay, was the most liberal of FDR's appointments to the Supreme Court. Along with Justice Rutledge (who John Paul Stevens clerked for), unfortunately, he died after being on the Court for only around a decade.  The issue in this 1946 case was the reach of a federal "white slavery" law that criminalized taking women across state lines for immoral purposes.  He alone substantively dissented (two justices also dissented, but basically without opinion; a third said it was up to Congress to clarify what he admitted was a bad situation) to argue that right or wrong as social policy, women transported to be in polygamous relationships did not fit into that category as a basic rule.

There was always some wariness of giving the federal government broad power here in what ultimately was likely to go beyond the fear [exaggerated] of what was sometimes seen as "white slavery," namely taking women across state lines for the purpose of prostitution.  Prostitution itself was seen as basically a state concern, one that might even be allowed in certain respects.  Murphy wrote a split decision earlier holding that a couple who ran a prostitution business that merely went on vacation with women who worked there were not covered.  A black boxer also got in trouble for taking his white girlfriend across state lines. 

There even some dissenters to the breadth of federal action taken to deal with polygamy in the federal territories in the 19th Century.  The breadth of the actions there popped up in Romer v. Evans, the first major gay rights case Justice Kennedy wrote.  He noted, e.g., to the extent a person who lose the right to vote merely for advocating polygamy, that would not hold up today.  A few justices even at the time held one action illegitimately invaded property rights.  The big case back then held that a federal law against polygamy was constitutional, even though it burdened free exercise of religion.  As Justice Douglas later said, to the degree it drew a line between belief and action, the Reynolds case did not hold up.

But, it wasn't really that absolute.  It held that the Congress was "left free to reach actions which were in violation of social duties or subversive of good order."  That is rather open-ended, perhaps, since "social duties" can mean a lot of things.  Still, "subversive of good order" very well might be more limited.  The opinion strongly spoke against the "odious" practice of polygamy and the opening dissent is something of a counter to all of that.  Just how offensive, contra to some of the arguments in the opinion, it was to women at the time (and even today) was also challenged in by writings of the women involved themselves. 

There was biblical practices of polygamy and it is allowed by various religions and nations today.  The complexity of the matter, including if we still should to some degree uphold at least some forms of monogamy on equality grounds is apparent.  As noted there, the common form tends to at least to some degree promote a patriarchal form of society, one men and multiple women.  Perhaps, that is acceptable if we have a wide view of marriage, but it also can be a reason for the state not to recognize the marriages. As with incest, this does not mean it is ideal to criminalize.  And, in Utah at least, there is a broad laissez faire going on.  This is so even if technically even "purporting" to be married without getting a formal license would be illegal. Which has free speech and religious liberty problems at any rate. 

The same sex marriages cases provided four basic "principles and traditions" involved in the right of marriage that equally applied. One involved a "couple" with a "bilateral loyalty."  As we heard last time, same sex marriage from some led to the slippery slope brigade to come out and polygamy was often cited as the logical result.  But, as with incest, there is nothing unique to same sex marriage that warrants this. As noted back in the 1940s, there were different forms of polygamy in place and was since ancient times. And, other than "group marriage" (left not spelled out but gather them too), each in some form involved men and women.

Sexual freedom in general in some fashion makes it less reasonable to include polygamy to some degree, especially if that just means some unofficial type of polyamory.  But, if you only allow a limited form of sexual freedom a lot of other stuff also fall to the wayside.  Thus, merely cohabitation might be a problem if it is mixed company, since there is an implication that would include sexual behavior.  And, as I said last time, do we really want to criminalize or even civilly deny marriage rights to couples who have open marriages or threesomes?

The "complexity" link talks about both sides and there are valid reasons why a "bilateral" union is what a constitutional right to marriage entails in its fullest sense.  There is a special nature to a one to one union both as a matter of sexual dynamics* (including concerns about patriarchy) but also functionally (though one person can be designated) for things like decision-making.  Two people clearly have a different relationship generally than more than two as well in a variety of ways.  Things like spousal immunity is a problem if you have four people.  And, experience in communities with polygamy has shown to be troubling including dealing with shortage of males, large amounts of children, encouragement in some cases of child marriages etc.

As with incest, such things can be challenged, but then the problem tends to also be narrower.  With incest, there is a general understanding that certain people with certain familial relationships should not have sex.  This is not the case with many polygamous relationships, especially now that fornication is no longer a problem.  Three people can set up a home and have a family relationship which has a sexual aspect.  Again, perhaps, if somehow it is "purported" to be an official polygamous relationship of some sort this might violate some law.  But, even that, is to my understanding not really a general concern except maybe Utah, which historically had a special difficulty with polygamy and had to go out of its way to make it clear that there was no official support. And, again, how much do they enforce that?

A problem can arise, I guess, if two of the people are married and we can run afoul with adultery laws.  Just how much criminal adultery laws is still a thing, if it really ever was except in limited cases, is unclear. By one account, in 2019, it was still on the books in nineteen states.  People in the military at times have gotten caught up in adultery rules too.  Going back to that Bowers dissent, protecting marriage by penalizing violations was accepted as valid or at least different than criminalizing sodomy.  But, granting consent here, it seems to me a violation of the right to privacy to second guess how a couple wishes to set up their marriage in that fashion.

So, the "horrible" here really amounts to a narrow instance of the state itself not recognizing polygamous marriages.  Over the years, it did not even completely do that, such as dealing with property claims of spouses deemed to be in polygamous relationships. We can also imagine complexities of legal polygamous couples from abroad residing in the United States.  There is also more so than for incest a religious concern here, particularly since some laws and actions have a clear animus against the Church of Latter Day Saints (Mormons).  But, polygamy itself was generally banned over our history, so that argument only goes so far.

The path to equality for GLBTQ is significantly cultural acceptance, including in television and film (the "Will and Grace Effect").  Polygamy is has to some degree have had a bit of that as seen by Big Love (though that also pointed to its problems) and Sister Wives.  We are not in a position where polygamy is widely practiced though even this limited respect had led to backlash and discussion on its problems.  I have read some of this material but get the idea the problems really arise in closed societies.  Thus, note the reference to "polygamous communities" as such. If single families, e.g., decide to be polygamous, it is not going to be a similar issue.  And, again, the criminal law is a blunt instrument.

Polygamy tends to arise in societies because of the special needs of the people.  Thus, a few cases of women led unions arise because of a shortage of men in the area in correction.  Biblical polygamy in effect is a matter of a head patriarch in control of a group of people and thus might have more than one wife, especially if one wife is older or does not have children. One can imagine this arising in this country in some fashion and it does at least unofficially. A group relationship can also be more emotional and romantically based as well.  Again, that happens.

As with incest, it is reasonable to protect monogamy as the baseline for marriage.  The slippery slope is not as slippery as all that. Likewise, as with incest, a lot of things can be conceded as good policy or even worthy of actual constitutional protection.  Adultery should not be a crime. It might in some cases be relevant for divorce or the like, but even there, no fault seems to be the norm.  A couple might also by agreement make adultery problematic, but it also might agree to an open marriage. This should be protected as a broad area for people to establish intimate associations as they see fit.  And, we can foresee various ways to provide benefits and obligations when a polygamous relationship is involved. After all, divorce and so forth already results in a variety of relationships there.

As of now, it is okay if we do not go all the way, requiring polygamy to be recognized as a form of marriage.  Marriage as of now is still monogamous for a variety of reasons.  There is some play in the joints there too. And, either way, it is not a "gay thing."

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*  Same sex marriage might be argued to be a sign that old views of sexual roles in marriage are open to question now, but my argument would be as a whole that there is nothing specific to them that opens the playing field there. The recognition that a partner can be same sex is part of a wider whole that also recognizes the diversity of sex roles generally. The stereotypical same sex couples even matched to some extent the dual roles (butch/femme) but that is again a stereotype. So, the gender roles of any marriage is a range though surely there are general tendencies. Each union makes a whole in different ways.

I said that two people together just seems to work but how that works is also a mixture of things that developed over the years. Marriage grew out of reproduction and division of roles but we don't live in nature these days and even there there were complexities.  Polygamy in various societies shows that any appeal to "nature" or function will be complicated.  Monogamy brings with it various things that seems to work -- hey, I'm not going to say a few paragraphs here filled in all the details -- enough to make it appropriate as the norm. But, even there, polygamy of various forms is still mixed in.  Even snarky "whataboutism" works because people know there is a little bit of truth there, even if the expression is off. 

And, since I'm extending my remarks, the problems of polygamy again is not just something that arises because we have sexual freedom of the modern sort.  We have people who home school children, let's say, in ways that to be bluntly honest poisons their minds. But, we do allow that.  We allow religion to teach hate, including to budding minds who have a weaker ability to reason and challenge.  The problem was flagged in the Wisconsin v. Yoder case involving allowing the Amish to end school early.  And, we have marriages where the wife is submissive and such in what seems to be unhealthy ways.  These things are not new.

And, they exist without polygamy.  I'm okay with allowing that too.

The Incest Horrible

With respect to incest, a court might well agree with respondent that the nature of familial relationships renders true consent to incestuous activity sufficiently problematical that a blanket prohibition of such activity is warranted. See Tr. of Oral Arg. 21-22. Notably, the Court makes no effort to explain why it has chosen to group private, consensual homosexual activity with adultery and incest, rather than with private, consensual heterosexual activity by unmarried persons or, indeed, with oral or anal sex within marriage.

When the United States Supreme Court rejected including sexual relations between two men within the right to privacy, the usual "parade of horribles" including adultery, incest and polygamy as well as things like possession of drugs were raised. Justice Blackmun tried to partially respond thusly, which basically has two paths -- direct and indirect. You can explain that incest can itself be excepted (either as not a right or a much weaker one and/or a strong enough interest is present to damn it) or wonder why specifically is it a problem now? The parade of horribles (toss in comparisons to bestiality too) historically also arose in respect to interracial marriage.

The dissents flagged that and the "slippery slope" problem is not just in one direction.  It might have taken the Supreme Court until Lawrence v. Texas (2003) to broadly explicitly accept that there is a right to intimate relationships, including of a sexual natural, which includes same sex couples. The opinion specifically noted it was not dealing with something where a state has to sanctify the relationship (that would cover in around a decade with the marriage cases), but that only underlined that old fashioned fornication laws would have to fall too.  A few lower courts refused to apply the opinion as broadly as it logically warranted (e.g., sex toys) but that wasn't really reasonable.

Likewise, its reference to cases like Griswold (contraceptives) underlines the fundamental nature of the interests.  Some have a problem with the Kennedy's gay rights opinion in part regarding the nature of the approach. But, I don't agree as a whole. This includes the recognition that not only is liberty interests are issue but equal protection matters. The dual nature arises in a variety of cases, including when justices might degree on the exact approach to use. Loving v. Virginia, e.g,, both relied on a criminal ban on interracial marriage as violating equal protection and liberty (the right to marriage being denied for an invalid reason). Same here: intimate association (including marriage), deemed fundamental rights by precedent, were being illegitimately denied to homosexuals.  Gays fit in a wider whole.

The dual nature of the rights at issue here can be seen in other cases. Thus, abortion rights were originally primarily seen as a matter of privacy rights, but even early on, sexual equality was also deemed an important aspect. Separately, in a case like criminal due process, something might be seen as wealth discrimination -- needing to pay for court records or a lawyer -- or simply a due process issue.  The same applies in religious liberty claims or free speech, where let's say only labor picketing is targeted. An "arbitrary" or "capricious" action often can be seen as some unequally benefiting.  Justice Kennedy in his same sex marriages opinion covers this ground too with cases to back it up.

Okay. So, what is it about gays and lesbians or perhaps some other things that raises the specter of incest?  As an aside, a companion specter is polygamy though serial polygamy has been even less shunned for years than homosexual behavior.  That is, having sexual relations with more than one person, even in respect to adultery.  (This does complicate matters, but even there, "swinging" was a thing for years. As was spouses who looked the other way.  So, we might have to limit it to non-consensual adultery.)   Anyway, a major thing was a feeling of disgust.  The road to perdition if it is not based on much more.  Thus, many are disgusted by sexual acts that heterosexuals regularly do, including anal sex or role playing.

(The discretion involved in this area as well as the problems with a heavy-handed state approach at times seems a bit artificial.  This flows for some into things like homosexual relationships. In that case, that seems fine to people, while those who think it wrong might be seen as distasteful themselves.  Tad harder if two siblings are having sex, huh?  In principle, maybe, you might think it a bad idea to put them in jail.  But, a tad harder to conceive that they might actually be a honest attraction there that might even flow into love. Not that sex or even marriage need to rest on that. Still, the "squick" factor is there above and beyond a lot of things.)

But, disgust is not really the only reason the incest taboo has ancient roots. A judge in a state court ruling in the 1990s noted:

First, the restriction forces family members to go outside their families to find sexual partners. Requiring people to pursue relationships outside family boundaries helps to form important economic and political alliances, and makes a larger society possible. A second purpose of the taboo, as the majority aptly points out, is maintaining the stability of the family hierarchy by protecting young family members from exploitation by older family members in positions of authority, and by reducing competition and jealous friction among family members.

Let me add in here that I found this article a good fairly recent introduction to the "incest horrible" debate, if one that leans toward being doubtful current rules work.  See also, this news article that cites a major German lawsuit that upheld the prohibition (translating the German, the dissent seemed to deem the criminal penalty disproportionate as applied to the adult sibling relationship at issue). As noted in the first article: "the question was forwarded to the German Ethics Council, which released  a  non-binding  opinion  that consensual  intercourse  between  adult siblings  should  in  future  not  be  treated  under  criminal  law."  The first article also references others, including pre-Bowers article supporting a libertarian approach and a 2005 article criticizing the line drawing as well.

The first reason suggests a dividing line in respect to marriage recognition at the very least.  Thus, Justice Kennedy at one point noted that marriage made outsiders, insiders.  But, family members are already insiders. The state might use marriage as a means to provide benefits and obligations to unite together those that were previously separate. It very well might be a good idea to have "domestic partnerships" that might include family members too.  But, marriage still might be treated differently with the sex of the partner not being a suitable dividing line. 

This might be sound even if one thinks incest should not be grounds for criminalization (the U.S. has a patchwork system of laws here, but nearly all states disallow at least immediate family members -- by one count, but for six even uncles/aunts and nieces/nephews -- to have sexual relations [what this means might be unclear though]).  I think this very well is likely sound public policy, but it is not simply arbitrary to bring in gays, various kinds of sex, premarital sex and so forth, while not protecting incest.  For instance, targeting behavior based on sex is clearly illegitimate on basic legal principle. Not hiring a women is not akin to not hiring a relative.  Still, yes, as is the case in many countries in Europe, the criminal law is not a great means to address adult incest. Making it a constitutional right is a step beyond that.

Of course, one can only take this so far. Way back in 1978, the Colorado Supreme Court in Israel v. Allen deemed a ban on marriage of adoptive siblings unconstitutional. It drew the line at blood, but as noted, many incest barriers do not.  The state did not ban the two from having sex.  And, many states (including New York) allow first cousins to marry. Looking at various cases cited in one article, repeatedly it involved stepfathers and teenage stepdaughters where consent was dubious (though once it was "exchange for social privileges, such as going out with her friends").  Some laws cover rather distant relations, like third cousins.  Given current rights to form intimate associations, at least some of this is dubious.

There has been some feeling that incest taboos is a result of eugenic concerns though as a general rule either people with a range of conditions are able to have children or barriers are rightly seen as problematic. We do not want to block blind people or those with disabilities in general from marrying and having children.  And, we do not.  It is also argued that only in modern times did this interest become apparent with scientific knowledge of genetics not known earlier on.  This is dubious though since there was -- to the degree this is a problem, which is a mixed question -- evidence by experience. This would also be apparent for those who bred animals.

The basic arguments that appeal "reasonable" these days somewhat weakly is eugenics (if only to be concerned for the children themselves), consent and family harmony.  Consent was flagged at the start and along with things being "private" (so no prostitution though criminalization there too is questionable on public health grounds) is basic to rights. Thus, incest is not an issue for minors in general -- they would normally be deemed not to have the ability to have consent. And, even if we understand teenagers, let's say, will have sex, there is a strong argument to be made that a parent or stepparent's authority would make consent a problem.  It's a somewhat different issue with siblings though there too power differentials and consent very well might be a problem.  We are again talking minors. But, it's starting to get tricky.

We should apply the rules consistently here -- so, e.g., if we ban incest within the immediate family, minor step-relations should be included. The dividing line there would be concern about blood mixture, but that is a weak dividing line generally.  The other reason is familial harmony. It is easier to defend that when incest only had to meet rational basis review. We need not just rely on tradition here -- looking at the wider ends of family life, same sex families, e.g., meet the test.  Ditto marriage.  There is a lot of flexibility here on what marriage or families should entail.  But, like the same sex marriage cases set forth, there is probably some sort of limits. Debatable limits, but certain criteria all the same.

So, e.g., love need not be a grounds for marriage. The roles of each partner is flexible, not just traditional or egalitarian.  Children or no children. How you raise the children also can be a range.  Easy divorce, a great change from "traditional marriage" would be possible.  The specific privileges and duties might be open to debate. Is spousal privilege required?  Should couples be allowed to have open marriages? Should that be open to loss of benefits? Yes, polygamy even is possible if again easier to justify disallowing on certain grounds.  This level of discretion in the articles flows into questioning harmony grounds for incest bans.  What about sex here is by definition so different?  What sort of behaviors are involved there?  What about adults, in-laws and so forth? etc. Marriage continues to develop as well.

A functional concern might still flag incest as a problem.  Again, thinking same sex couples are equal to different sex couples for purposes of marriage etc. without bringing in incest is not exactly impossible.  The first is easier to defend.  But, once we address the issue of adult incest, how much?  I recall a concern that adult incest could bleed into minors -- there would be a let's say "Gigi" tendency to prep children for a father to take over, let's say for purposes of sexual relationships.  But, is that really much different than prepping them for someone outside the family?  That sort of behavior itself can be deemed inappropriate, so the only push is that it is harder to stop if there is potential that the person as an adult will have an incestual relationship. 

And, the case quoted again involved a teenager who had sex with a stepfather. It's a rather easy case. How about this cited in one magazine article: "In Ohio, lawyers for a Cincinnati man convicted of incest for sleeping with his 22-year-old stepdaughter tell TIME that they will make the Lawrence decision the centerpiece of an appeal to the Supreme Court." This can be "disruptive to the family" too but there we actually had a dissent concerned that the law was being stretched to avoid needing to prove consent.  An article also flagged a college professor who had sex with his twenty-something daughter.

A concern for family harmony when two adults are involved and the people aren't even living together, maybe even not really having much of a relationship at all family-wise, is a stretch.  The case we generally worry about is a father or stepfather being involved in a non-consensual relationship with a minor daughter.  The German case involved siblings. One case that overlapped with Lawrence v. Texas involved adult siblings who got in trouble when one of their children was reported as at risk by a babysitter.  Some incest laws in this country allow certain relatives to marry once they no longer would have children. The main article cited also flagged many occasions where relatives reunite as adults and find they have an attraction, perhaps (I'd gather) family members have certain tendencies that might overlap with soul mates if the taboo was not present. And, the couple grew up apart, so the taboo would not develop between them.

[The Muth v. Frank case had unpleasant facts beyond the incest and concern about the child in question very well might be warranted for reasons that do not directly seem to related to the parents being related.  The value of putting each in prison for incest as compared to voiding the marriage and perhaps even their parental rights -- not necessarily a good idea in each case -- is a harder question. See again, the dissent in the German case cited above.  The concurrence in the opinion, as I flagged years ago, also suggests the wording of the majority opinion left something to be desired.  This includes the focus on Lawrence v. Texas as merely about homosexual sodomy, when it went beyond that.  The exceptions included, all the same, very well could include incest.]

I found "what about" arguments regarding incest/polygamy tiresome when same sex marriage was starting to be debated. I still do since there is not really something specific to same sex relationships here.  Again, interracial marriages was seen as unnatural once upon a time. It also is easier to justify blocking sex and sexual orientation discrimination as well as discrimination by marital status (sex before marriage) and so forth.  And, every debate is not about opening a whole libertarian discussion of taking things to the outer limit. We can ban heroin while not banning marijuana.  Law, including constitutional law, is drawing rough lines at times.

As the articles discuss, yes, it is at some point sound to think wider thoughts. So, e.g., portraying incest in pornographic films or in written works should clearly be protected.  Line drawing can be rather arbitrary as seen in the case of distant cousins.  Sometimes, as seen in an early case, this might even have religious implications (uncle/niece of partial relation met Jewish rules of marriage).  Criminal penalties for adults who have sex with adults, even members of their own biological family, also is bad public policy.  Some relatively small fraction, if numbers-wise not totally trivial, likely are quietly having sexual relationships now.  And, though you will likely find someone pushing the envelope, domestic partnership rules even can factor in siblings who are on the side having sex.

Incest has been portrayed in religious works, fiction and occurred historically (such as siblings in Ancient Egypt) so this is old ground. An excellent 1980 law article on the right to intimate association argued even then incest bans very well might mostly be a matter of social disfavor, not reasonable line drawing.  Push come to shove, there very well might be something to that, though I do think as a general matter the continual norm that sex and biological family tend not to mix is a good policy.  But, good policy and what should be criminally or otherwise burdened is not the same thing.  Fine enough.  It still is not all the same. 

(Virtual) SCOTUS Watch

SCOTUS didn't show up but did release orders and opinions (and not all at once; it released them on the website as it would have been ... in reverse seniority .. in person) virtually.  SCOTUSBlog flagged that Supreme Court's Public Relation Office (us paeons only getting the info secondhand) notified the press that only Roberts was actually in the conference room during the Conference.  (I added that last part and to continue to beat the drum, I think it should be published on the website.  As to openness, Fix the Court dropped  a report on the limited financial disclosures of justices.) 

On the SCOTUSBlog live blog:

With no opinion summaries in the courtroom, we are missing out on the nuance that often comes from hearing the author give the highlights of his or her opinion. On an opinion day that is also an argument day, one of the reporters who stays down in the press room until all the opinions are out (Amy, to be specific) usually kindly brings me a set of the printed opinions in the courtroom. (Most reporters who stay down for opinions and choose to then come up for argument can make it before the arguments start during the short period when in-person bar admissions are being conducted.

Many of us miss out on this anyway, of course, until Oyez.com eventually releases the audio.  I guess there will be none this time around at all?  The Order List appears to have been as usual nothing too much as a whole (the substantive thing late last week this time was an extension of certain rules) with Kavanaugh adding a statement regarding supporting -- later on -- taking a case to deal with a circuit split he flagged. There was also a brief critical per curiam criticizing the Fifth Circuit for declining to review certai factual claims for plain error. A lawyer from the area noted on Twitter: "this should be big for crim defense in CA5: plain-error review doesn’t exclude fact-finding, contra CA5 precedents."

There were four full opinions with Kagan handling the most controversial.  Gorsuch had the opinion for a racial discrimination lawsuit that received some attention, but the mostly unanimous (RBG pushed back a bit, Gorsuch dropped a footnote explaining himself and she didn't join that)  result suggests the needle wasn't moved much.*  In another push against the 5CA, Breyer had a 7-2 opinion (Alito/Thomas dissenting) giving immigrants something of a win to give them a chance to make their case. It is an example of how at times the Roberts Courts helps out there.

The first Kagan opinion applies sovereign immunity precedents (Breyer/RBG concurred to say they are bad, but conceded they were stuck with them as precedent) to copyright cases.  Realistically, not doing so would have been a bit off, again if one is consistent.  The hope there, and Kagan has been someone who supported precedent even when the result might not be what liberals like (e.g., dual sovereignty rule in double jeopardy), is that this might help later on.  As seen in the First Amendment context, this is not always the case.  Her opinion, well written in her readable style, honored precedent and made clear Congress could still (within limits) regulate in this area to advance the same ends. This was too much for Thomas to totally go along with.

[Breyer crankily went along and Thomas made sure to appeal to Thomas purity but Kagan's pen shined thru the majority opinion: "crystalline abrogation" .... "bankruptcy exceptionalism" ... "When does the Fourteenth Amendment care about copyright infringement?" .... "And it gets only worse." ... "digital Blackbeards" ... "prewrote our opinion." Roberts is also a good writer.  Gorsuch tries too hard.  The other justices are generally careful if boring drafters though their voice can shine in separate opinions. Breyer prefers functional/fact based analysis. If the author's name was removed, sometimes tossed out there as ideal, an expert often could guess who wrote it, though not always.]

The other opinion was 6-3 with the other liberals (led by Breyer in a long dissent, one that maybe in another time might be announced from the bench) upheld Kansas' (to quote SCOTUSBlog) "failure to allow a mentally ill defendant to raise such a defense does not violate the Constitution."   Only a few states, as of now, are affected and Kagan argues that the alleged mentally ill defendant did have a form of an insanity defense even with the ruling.  It is unclear how bad the net result will be in practice at the end of the day.  So, especially if Kagan's vote helped to tone it down somewhat, it is not too surprising that she went this way.  Going back to a theme, the two opinions also split on what precedent demands.

[I tossed in a link to a good preview, one that also quoted from an earlier dissent to a cert. denial on the issue with a similar 6-3 split though the earlier case cited had Kennedy in dissent supporting the more criminal defendant rights position.  So, Kagan's position might not be a total surprise.  Slate also has a negative article on her opinion.  I am inclined to be sympathetic to the dissent, but Kagan's vote didn't really add much to the conservatives. If anything, again, I think there is a fair chance her involvement might mildly advance liberal interests long term.] 

With oral arguments (and two executions) postponed, we still have a planned conference this Friday and another order day the following Monday.  To toss it in there, McConnell and Kavanaugh attended a former's clerk's swearing-in ceremony.  District judge in Kentucky, so perhaps an additional reason why McConnell showed up.  He is in his 30s and the ABA deemed him "not qualified" because of his limited experience practicing law.  Others were upset McConnell (who delayed things in the Senate over the weekend) and Kavanaugh (traveling at all) showed up.  Ah. Speechwriter for Donald Rumsfeld.  How charming.

---

* A Nation article is more pessimistic but flags that RBG said she went along because of precedent (going along with bad precedent to protect good precedent that conservatives might want to dispose of appears to be the rearguard action now)  and perhaps to join with the liberals (we don't know) to prevent the majority from being worse. And, the concurrence flags a potential landmine that the majority says it is not really using. Who knows again if this is too coy by half?  This too is worth quoting:

It’s worth noting that the 1866 Civil Rights Act does not specify, in its text, that black people must show that racism is the but-for cause of their legal injury. Most of Gorsuch’s opinion is just him explaining why he’s willing to read “but-for” into a law that doesn’t contain the phrase. But that’s what originalists do: They stick closely to the text when it helps their agenda and make up words to add to the text when the original version doesn’t support their opinion.

An unaimous opinion does tend to suggest an opinion is limited, but (1) it doesn't mean it is correct (2) it might be papering over and somehow furthering deeper things.  We saw this in a case that led to Shelby v. Holder. [This footnote was added.]

2020 Race Update

I said to check back with me on April 1st but to be clear Tulsi Gabbard actually dropped out and endorsed Biden. There is some strong disdain for Sanders, earned to some degree, but ultimately a problem here is that so many (including himself and his supporters) actually got it in their mind he was a credible general election candidate. I never really saw that even if no one was in a strong postion pre-South Carolina. There was always a strong anti-Sanders feeling, just a question of whom would benefit. It taking so long for it to be clear Biden was it suggests people like myself dubious weren't just wishing and hoping.

People are pushing for Sanders to suspend. Me? I still sorta am not appalled that he is not though the virus suggests it is time to just bite the bullet. With a candidate in his late 70s, it is good to have a vice presidential candidate and doing other things to in effect have a united "shadow" opposition which is difficult when the campaign is still going on. As of now, there are minor races in early April so with social distancing, we would have a sort of limbo anyhow. Hopefully, there is some behind the scenes reaching out to Biden supporters. It also might be time for Warren to endorse. Maybe that too is of little notice.

One other thing is that some think Sanders needs to stay in to be in reserve. He might seem more spry, but he is the one who had a heart attack. Plus, if something bad happens, I think someone more Biden-like would replace Biden. Who that is hopefully just of academic interest. Anyway, get back to me in early April.

Time Marches On

It can be lost with all the shit going on, but other things are happening. I'm Irish/Italian so St. Patrick's (3/17) and St. Joseph's (so little about him!) (3/19) are notable. The middle day is my own creation, for Irish/Italian mutts, St. JP Day. Spring also starts late today.

Reed v. Reed

I have tried to get into multiple books but having problems; still able to skim old favorites like Liberty and Sexuality and spend much too much time online.

[ETA: I was going to talk about New York v. Uplinger, involving sodomy, but my previous entry (along with the link to Carey) really covers most of the ground.]

Rereading a bit on Doe v. Bolton, there are additional facts that make me want to read more (a previous recent entry linked a paper that covered the ground some). For instance, the lead attorney worked with the lead attorney on the other side (who deserves more attention for her good advocacy) for a while.  Also, she isn't the only woman lawyer that worked on the case for the "Doe" side; in fact, one woman involved faced off with Dorothy Beasley (Georgia) in another case.  A man did the actual argument; DB has two other Oyez.com cases.  There is a story there about the small group of women lawyers involved.  "Doe" along with "Roe" later turned against abortion (the key here is choice); her lawyers also helped her with custody issues etc.

The above came to my notice again because I listened to the oral arguments in Reed v. Reed, the dispute over who among two divorced parents would administrate their son's will that turned out to be the first in a line of sex equality cases in the 1970s. The lead attorney in Doe went to the oral argument and the recognition of the wrongs of sex/gender equality, if in embryonic form (natch), was of some assistance here in the overall effort.  As we saw in the movie, RBG worked on a court of appeals tax case beforehand though the actual case was handed down afterwards.  She assisted with the brief here but did not herself take part in oral argument until Frontiero v. Richardson.

The oral argument on both sides was rather poor, the sex equality side starting off emphasizing that he was asking for something that never was done before and comparing it to Brown v. Bd. or something.  Not really a great strategy; you are supposed to send a message that your argument is  rather mundane, baby steps really.  He (even if his mother was the first female state senator, for a brief time in 1937  to replace her husband, in Iowa) didn't seem to be clear on how the law at issue worked. And, near the end of his presentation, was offered a range of hypos (covering the ground of a range of cases to come) that his strict scrutiny approach basically teed up.  He didn't need to reach out so far.  Not that the other side did  better but he at least had precedent on his side.

The ultimate decision was thin but so was the state opinion though at least it referenced a bunch of other cases where women were also treated differently than men.  Without specifically justifying the provision at issue -- giving male relatives preferences over female [brother/sister; husband/wife] in the case of apparent ties -- such case citations at least suggest the idea is that men already were advantaged in monetary matters. The Supreme Court didn't even do that and there were a few cases involving women raising equal protection concerns over the years to cite.

[I could not find it, but the Iowa state district court did strike down the practice on both state and federal constitutional grounds.  The California courts were also starting to be sex equality friendly. Later, an intermediate Texas court struck down the sodomy ban in Lawrence v. Texas.] 

Chief Justice Burger (for a unanimous Court; then only seven members) cited an old case concerning a corporation that sold fertilizer for this principle: a regulation "must be reasonable, not arbitrary, and must rest upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike."  Logical enough.  And, there were a range of cases by this point to determine that the Equal Protection Clause (or due process in the case of the federal government) did not just apply to race.  But, how was that rule violated here?

To give a mandatory preference to members of either sex over members of the other, merely to accomplish the elimination of hearings on the merits, is to make the very kind of arbitrary legislative choice forbidden by the Equal Protection Clause of the Fourteenth Amendment; and whatever may be said as to the positive values of avoiding intrafamily controversy, the choice in this context may not lawfully be mandated solely on the basis of sex.

Why though? The time old practice here was to favor men over women because men were seen as the ones who would be skilled at such things. Yes, that is a sexist notion, but you should do the work to show why. And, it made sense for four justices in Frontiero v. Richardson to argue that implicitly sex was being treated as something warranting more than rational basis scrutiny.  Since, again, you can say that men on average might be better skilled here, if we are merely going by a tie breaker scenario.  If sex discrimination warrants more, say so.  The other justices weren't willing to say that. Eventually, a majority agreed in Craig v. Boren that sex deserved an "intermediate" level of scrutiny.

Again, there were a range of cases over years, such as Bradwell v. Illinois in the 1870s, which denied women the privilege to serve as lawyers. Only three justices dealt with the sex discrimination matter directly, the others holding such a "state privilege" was at the discretion of the state. Later on, protectionist legislation was upheld, except in one case involving the minimum wage shortly after the Nineteenth Amendment. A sex equality theme was expressed in the majority opinion though many liberals rather not cite a case that struck down a minimum wage law.  Once found a more obscure case where one justice c. 1910 wrote a dissent saying women were being discriminated against; can't recall it.

[The fact that in the depths of my mind this case sticks around and the year "1912" fit in provides a window into my life.  Doing a Google search, I quickly found the case.  Justice Lamar (who? yes) at one point noted: "A discrimination founded on the personal attributes of those engaged in the same occupation, and not on the value or the amount of the business, is arbitrary."  The case in question was a tax provision that benefited women. One wonders how a consistent application of the quoted rule would have worked then since as the majority noted various laws so differentiated.]

Goesaert v. Cleary [1948] is another case that did come up in oral argument here but was not covered in the thin final opinion. The Supreme Court there split 6-3 and upheld a law limiting the right of women to obtain a license to serve liquor as "not without a basis in reason."  To wit:

Michigan system for controlling the sale of liquor, bartenders are required to be licensed in all cities having a population of 50,000 or more, but no female may be so licensed unless she be "the wife or daughter of the male owner" of a licensed liquor establishment.

Women bartending would reasonably be held to involve "moral and social problems" to warrant such a law, the male oversight provision also justifying still allowing women waitresses in such establishments.  The dissent (Rutledge, Murphy and Douglas) saw this as invidious discrimination but the dissent did not go into much detail. Basically:

The statute arbitrarily discriminates between male and female owners of liquor establishments. A male owner, although he himself is always absent from his bar, may employ his wife and daughter as barmaids. A female owner may neither work as a barmaid herself nor employ her daughter in that position, even if a man is always present in the establishment to keep order. This inevitable result of the classification belies the assumption that the statute was motivated by a legislative solicitude for the moral and physical well-being of women who, but for the law, would be employed as barmaids. Since there could be no other conceivable justification for such discrimination against women owners of liquor establishments, the statute should be held invalid as a denial of equal protection.

This might be a matter of different tests -- a rational basis test can be upheld even if it is not a perfect fit. The fact men won't always be around, for instance, only is a problem up to a point if we play a game of averages. However, if it is an "invidious" discrimination, the fact there is something of a rational fit might not be enough.  OTOH, the dissent is fairly conclusionary, showing that there is a middle between too short and too long.

As late as the early 1960s, in Hoyt v. Florida (three justices briefly concurred), a law that allowed women to voluntarily opt-in for jury duty was upheld because even with "their entry into many parts of community life formerly considered to be reserved to men, woman is still regarded as the center of home and family life."  Again, applying old cases, a rational basis test might determine that the tie goes to the man when dealing with financial issues like the administration of an estate.  A somewhat stricter test of reasonableness here might find an absolute rule unreasonable, but the range of limits on women historically here made it understandable.

Back in that minimum wage case in 1923, the majority said a tad prematurely:

But the ancient inequality of the sexes, otherwise than physical, as suggested in the Muller Case (p. 421) has continued "with diminishing intensity." In view of the great — not to say revolutionary — changes which have taken place since that utterance, in the contractual, political and civil status of women, culminating in the Nineteenth Amendment, it is not unreasonable to say that these differences have now come almost, if not quite, to the vanishing point.

All the same, by 1971, things had developed that -- even if the opinion did not show its work -- that mere administrative convenience (skipping a hearing to show who is best fitted) or avoiding familial disharmony was not cause enough to favor men over women here.  The basic principles of due process and equal protection need to be applied with up to date facts.

(Somewhat related.  I recently filled out my census online, after getting a notice in the mail with the proper code.  The census asked my sex -- male or female -- which warrants more than two choices.  LBGT friendly please!)

Presidential Race Update: March Ends Early

Various delays, including Ohio at the last minute in dubious fashion. General thoughts well summarized here and see in general Election Law Blog (e.g., he thinks the Ohio move was done in a horrible way even if you grant it was valid on the merits). We should have had clear rules in place to deal with these exigencies, including extended voting by mail (wary of using it completely, but these are special times), and need to address it right away. Including by national legislation, Congress specifically having power over federal elections.

The final March races were Florida/Illinois/Michigan and Biden continued his dominance [270/130 or so] though young voters (sometimes up to those under 45) favored Sanders; big problem is so few actually voted. I'm continually amused looking at also rans vote totals, including obscure candidates. As to sending a message, that is a way to do so too. If New York lets me, still want to vote for Warren. Do so by mail. Need another "Biaggi Bill" (my state senator). Looks like Trump has the delegates necessary to be the nominee. Shocker there.

I understand states delaying the elections, but again, should be done in an orderly/legal fashion; plus, the norm should be to try to allow people to do the basic part of democracy: voting. Vote by mail etc. And, it is not totally a non-issue just because Biden is a lock. People vote in safe districts etc. I saw some reports Sanders is suspending his campaign but without primaries until April and social distancing etc., in the short term, would do that anyway in a fashion. I'm okay if he doesn't totally suspend though then keep on seeing his supporters bashing Biden (dementia! a thing). And, no, not just "trolls."

SCOTUS Watch

After RBG's birthday, we now get word that the March sitting will be postponed, to dates unknown. This includes the Trump financials that should have been dealt with already. But, it wasn't unprecedented -- there was the Spanish flu thing a century ago and back a couple times in the 1790s. The upcoming conference also might involve some justices phoning in or something. Did that ever happen?

This follows other legal developments of that nature nation-wide etc. and on some level is sound. But, on another level, why? It seems possible, when so many others are crafting novel approaches including telecommunication of law classes, nine justices and separate presentations of arguments can be handled that way. Judge Sotomayor at least once was involved in a lower court case over a decade ago by live feed. The Supreme Court was proud to mostly do its work over they years, even in a D.C. snowstorm, and something should be able to be arraigned here, huh? Also, if necessary, oral argument can be skipped. It's useful but not essential. Finally, other than the faithless elector cases & maybe the Trump financials (in theory; in fact, probably less so, these cases are not really THAT time sensitive.

For now, at least, even the Texas execution scheduled this week was postponed by court challenge. Criminal justice is of special sensitivity, including jails, which often are already overcrowded. NYC years back felt it advisable to keep me in a little cage for hours with about twenty people for (wrongly) thinking I skipped paying a fare of under $3. There is only so much that can be done here, but there are many low level offenses etc. (elderly inmates, e.g.) that supply some room for discretion.

"Hyperlinks as Pseudo-Authority: A Fine New Example"

I used to comment at times at PrawfsBlawg, but stopped, perhaps because one or two of the contributors (and certain commenters) were getting on my nerves too much. One was a hyper-1A type of the sort that makes me feel like a conservative at times. Confused two of the people there and maybe no-comment guy is the one. His last that bashes a Slate piece and praises Posner over some other judge (mind you, I'm wary of what the judge did, or how specific anti-Roberts) because apparently Posner is so special annoyed me too.

But, blogging is about doing your thing, and if like at Balkinization Blog, you want to be off and not allow comments, fine. Anyway, what is special about hyperlinks? Are endnotes really much better? Who checks the sources? Here, at least you can have easy access. And, the link said "deemed," which very well can mean the way covered in the article. It also covers other stuff in that sentence. But, no comments, so I can't carp there. So, here you go. Ha.

Presidential Race Continues

There is talk that Sanders should just drop out given the virus and concerns about voting. But, I still think it is okay to have him debate with Biden as means of engaging with him (just saw that Biden basically signed on to Warren's plan that would make their big split over the bankruptcy bill old news; that happens because he is getting pressure from his left and he's trying to support a median position). Sanders dropped basically a sort of home test at the end of his post-Baby Super Tuesday remarks, talking about what he will ask Biden about. Fine.

And, though Sanders very well might ride this to the convention, which to me is a bit much unless it is somewhat pro forma (especially with some of his more bothersome supporters actively bashing Biden hard), it is fair really to give him some time when there is a lot more voting. Yes, this is true even though there is little chance he will catch up, especially with zombie supporters who endorsed Biden providing nearly 100 delegates in reserve. It's really part of the process. Could be a lot shorter, but acceptance is a process.

We saw people impatient with Biden doing well in South Carolina alone being key. March as whole has a lot of delegates and not just on "Super Tuesday." This Tuesday actually has more delegates than last with Florida alone over 200. Today Sanders won Northern Marianas Islands, 4 delegates to 2 (sorry Tulsi, Biden got both). After Tuesday, there is Puerto Rico at the end of the month. Perhaps, get back to me regarding Sanders on April 1.

The 25th Amendment and Coronavirus

The virus has raised a range of issues (the NYPL is now closed, for now, the rest of March; I saw it a theme of porn. the woman is creative -- she also has a criminal justice related one regarding a mom welcoming her son home). So, especially with him not sounding that well or appearing to take many precautions, why not the title issue? I provided extended discussion there but overall question if mere quarantine would warrant it. Maybe so.

There has been some talk about Trump being "disabled" for broader reasons than the Wilson sort of thing including something like being too much of a Russian puppet. I'm really wary about that. Trump is simply horrible and incompetent, but it is more impeachment-worthy. It surely would be "no confidence" worthy, but we don't have that. Gender is a criteria for "equal protection" and we can apply that using current understanding. But, Trump being disabled for 25A purposes is much more borderline; anyway, its approach makes borderline cases much less likely to be used. There are a range of possible issues to examine.

Madame Curie

The film is something of a Hollywood version of her life, including the glamour of the star, but found it charming. One footnote: her younger daughter, who wrote a biography that inspired the film, lived into the 21st Century. The basic honoring of science and the joint effort by the Curies is an important theme, including in these times. I look with a sense of unbelief as things like sports seasons are suspended. It has been noted that the societal unrest we are seeing perhaps was last seen over a hundred years ago with the influenza outbreak. I don't know what it will wrought. I'm in the midst of history. Again. Ugh.

Baby Super Tuesday

Eleven Democrats have filed paperwork to appear on New York’s presidential ballot. Under a Democratic Party rules change for 2020, presidential hopefuls cannot request to have their names removed from the ballot after filing with the state Board of Elections, according to New York election officials.

So, it sounds like Elizabeth Warren will still be on the ballot when there is a presidential primary at the end of next month. Michael Bennet will be as well, but not Kamala Harris. Seems silly to not allow these also rans to take their name off, but presume it might cause problems somehow to do that.

The article references Bill Weld trying to get on the Republican presidential ballot, but he did not meet the rules, so there will not be a Republican presidential primary.  My suggestion was that Michael Bloomberg should have ran a primary challenge to provide a protest vote mechanism to harm Trump and (New York isn't the only state that cancelled the primary here in effect based on a minimum support test)  probably would have qualified most places.  This is how things went in the past, such as Uncle Pat running in the 1990s.  And, we really needed something like this in 2020. In 2016, even near the end, people still had a shot to vote for John Kasich or something.  As I recall, you did have a few cases where a quarter or whatever of the voters did not vote for Trump even in May and June.

There will be special elections on that day, which as the article notes, bothers (at least officially; who knows if they really think it matters) some who figure the absence of Trump will limit turnout (as if special elections ever really have significant turnout).  Though New York streamlined things somewhat, having state/federal elections on the same day, the presidential election cycle does add another layer. Alabama, e.g., had the federal senator race on Super Tuesday (resulting in a run-off) while New York (and places like Maine) have a separate set of elections, late June here.  Some state races of note there. 

Elizabeth Warren suspending her campaign, but not endorsing anyone yet (Cory Booker is the latest for Biden; Marianne Williamson is still for Sanders while Tulsi Gabbard is still running) led the Working Family Party to need to make a choice as well.  They chose Sanders, which is not too surprising though I personally would not go that route.  Since Warren has yet to endorse, and her supporters seem to if anything split down the middle, it might have at best been worthwhile to stay neutral.  But, particularly with important races right away (Michigan being cited as a sort of last ditch by some), guess the party felt a need to do this.

Okay, having written the above beforehand, let's go to the results. They are mostly as expected.  Biden did very well in Michigan, Missouri and Mississippi.  (The bad odds for Sanders is suggested by Sanders winning Michigan 52/48 in a different environment in 2016; Biden won 53%, Sanders 36% with the rest split.)  He won Idaho while Sanders won North Dakota.  The leaves Washington, which is basically split in thirds now (Biden/Sanders/other with Warren/Bloomberg/Other again splitting things three ways).   The proportional voting makes the wins less complete but it also makes it rather hard to see Sanders (a wash in many remaining states is asking a lot, especially delegate rich places like Florida) catching up even if the delegate differential (under 200) looks not hopeless. Remember too that "zombie candidates" who endorsed Biden have nearly 100 delegates too.

As some note, it is likely a bad idea to simply decide to "end things now" for a variety of reasons.  For one thing, like Warren not endorsing anyone right away, a greatly divided electorate needs time to move on.  Plus, we are around fifty percent of the voters having their say so far.  Why wouldn't the rest, at least in the short term, want to have their chance to make their wishes known?  Elections are not just about winning the final count or the losing side in safe districts would have little reason to vote.  As to concerns about the coronavirus, that is a reasonable thing, but there should be a way to allow people to vote.  Absentee voting is broadly allowed many places. Some ad hoc mechanisms can also be passed to deal with the emergency. 

It also seems logical to let Biden and Sanders debate at least once more.  Let them engage.  The voters are strongly split, including by age, and a means to engage like that makes sense. Yes, Sanders should try not to make it too ugly, just as Biden last night welcomed his support and said it wasn't over. That he would aim for every vote.  And, yes, voters can be emotional more than rational.  Talking about odds will not settle the day there.  It is good to push for unity and respect.  Yes, it is tedious to hear about how Sanders is god's gift to things like cheaper health care as if this wasn't something promoted by the left wing of the party, or the party as a whole (note the meaning of "PPACA"), for years now. 

One person provided an in depth discussion of how our primary system holds back candidates unfairly, but net, it is unclear how much that really mattered.  A range of candidates (hey look! Sestak got some votes in Michigan)  had little route to success in the end as a whole even if we had a better system. Which I'm sure we can have -- a shorter and more evenhanded by region primary season seems quite possible -- but Sanders was a dubious candidate as a whole.  Sanders supposedly was aiming for a "30%" strategy of getting a plurality and having the rest split the difference. That isn't a great path to coalition building, I think, especially since he could not obtain a basic part of the Democratic coalition (blacks). 

Biden had various strengths there even if I didn't like him in various respects.  And, Warren didn't have his long term security (including as Obama's vice president) among other things. Yes, sexism hurt her. But, it wasn't the only problem. I still would have liked to see a Biden v. Warren match-up.  She very well might have still lost since the people as a whole are cautious and saw Biden as a safe experienced kindly grandfather type while Warren is newer, more wonky and basically more of a risk. Sanders was running a second time.  Sexism alone doesn't make that a plus.

Anyway, the path was apparent before yesterday's "Baby Super Tuesday" races with only a little room for improvement (if the same basically happened and Sanders did better in Michigan, a sliver of votes in one state matters how much?). Some made out that Sanders was the frontrunner for a time.  A rather small time, if one was careful.  Other than Nevada, what warranted that?  South Carolina was rather predictable. Other than Nevada, there clearly was a strong "not Sanders" movement and it was just a matter of how united it would be.  Warren helped show Bloomberg was surely not the answer there.  Buttigieg/Klobuchar were not really likely.  That left Warren, but though some did in their heart see her as a good second choice, they were cautious and she like Sanders couldn't get that black vote either.

The path forward seems apparent -- Biden will be even more so be seen as the presumptive candidate which will help in those states more divided while states like Florida will go to him naturally.  The proportional drawn out system in place will mean this will take time.  Two-thirds of the delegates will be allotted by the end of this month, but Biden at this point needs over 1000 delegates more.  The time can be spent promoting his message and working to unite the party behind him.  Biden as a median figure is helpful there since it will mean the left will get some stuff in the deal.  A (black) woman vice president also will help with Warren supporters.  Of whom, I'm one ... I vote the end of April.

SCOTUS Watch / Abortion (History)

The Supreme Court is in a bit of a break, with today a scheduled day to release orders and next week ending with a conference. An execution is scheduled next week so we might have a last minute order or two. Last Friday, after a week for consideration, a stay in a case was lifted.

The notable thing in today's orders is the expected acceptance of a case to replace the "D.C. sniper" case, which was mooted given a change in state law.  The importance of such a case is suggested by the facts: "Today the justices announced that they will take up the question presented by Malvo’s case again, as they granted a petition filed by Brett Jones, who was 15 years old when he killed his grandfather during an argument about Jones’ girlfriend."  If such a person is the extreme case left open by the previous case involving LWOP for minors, the exception is somewhat limited.

ETA: SCOTUS is ever active. On 3/10, Justice Sotomayor,  explaining the conflict check for some reason didn't catch it earlier, recused herself from one of the faithless elector cases given her friendship with the party.  On the docket page, there is a letter explaining this, which would be the rule (unless there is some good ground for privacy such as a medical condition) per a House bill previously covered on this page. 

It is  simple act of openness and avoiding the appearance of conflict that advances public respect and other good stuff.  I think orders should be linked to docket pages generally which shouldn't be too difficult -- so someone doesn't need to do a search in these cases to check out the case materials.  A person who is not aware of the docket page here might just see the order [more than once I saw even a person somewhat famiilar with the SCOTUS website was confused merely with the different order pages, so doing a "deep dive" is one level further] without knowing why she recused.  The media page also would be a logical place.

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I listen to the Strict Scrutiny podcast, which involves three women in law and still get a bit confused about the voices (Kate Shaw has a deeper voice and I'm fairly sure about Leah Litman .. but not quite there yet).  I made a comment on Twitter that Melissa Murray's voice was not quite as expected (wouldn't say it, but she at times sounds "cutesy"), which got a Obama shrug .gif from her over a month later.  Tad embarrassing  (didn't tag her).

This is a long aside to explain why I checked out the C-SPAN Landmark Cases episode for which she took the pro-choice side.  Skipped it at the time since I figured I had enough about abortion, something for one thing I wrote two papers on (one in my Catholic high school!) over the years alone.  It was pretty good with the page having some resources, but as is usual with something that condenses a lot of stuff into a short episode, a good amount of stuff is skimmed over at best.  Thus, sometimes I am like (including when she speaks) like "wait ...!!!!"

The pro-life guy wrote a book and promoted the thesis that there is a major problem with the facts of the cases, including that they did not have in depth factual records. I find it doubtful this would have changed much. It is not like there weren't a range of lower court cases here, which had a mixture of records.  Listening to Doe v. Bolton also suggests the range of material available, if at times in briefing.  It is noted that ultrasounds aren't referenced in Roe v. Wade as well, thus suggesting times resulting in changing understandings of prenatal life.  In what sense?  Heck, the state in Roe v. Wade itself alluded to evidence of the current knowledge helping their case.  Prof. Murray politely said the record could have been more "fulsome" though noted Justice Blackmun's medical knowledge.

In Memory of my beautiful Tigger

We had a wonderful 19 years together. You showed me that I could love unconditionally at a young age, and I will never forget you.

>^..^ <

Meow

Showing what is available online these days, I found an interesting college thesis discussing the background and aftermath of the Doe v. Bolton case.  The paper first provides the above dedication though adds: "And for Mom and Andy.  I would not be the person I am today if it weren’t for your love and support."  Priorities.  The author appears to be doing well.  One thing noted is that the legal team had available a lot of factual material [a range of plaintiffs were also provided, such as nurses, clergy and physicians] and "had prepared multiple witnesses for such testimony and were dismayed at the judges’ dismissal of [the need of] such evidence."  Plus, lots of cases on appeal (the three judge court approach perhaps factored in?) in these constitutional cases do not rest on factual hearings. 

[Looking at the lower court opinion, there is also a reference to a "Jane Roe," but no not the one in Roe v. Wade!]

Again, even when doing a hour and a half presentation including calls and so forth, the complexities of these cases are important to cover the best one can.  The two abortion cases were the product of an extended process, which was touched upon in the episode (e.g., they both were re-argued).  Something like twenty lower court cases, state and federal (see the main opinion itself for a listing of most of them), suggests as well this didn't come from nowhere. Neither did the open-ended reach of the opinion.

The Supreme Court had already decided United States v. Vuitch, dealing with the D.C. abortion law, if deciding things on procedural due process.  I have previously noted that this was an important case all the same because of the broad definition of "health," which did not just include a narrow reach to mean something like "to prevent very serious harm."* This finding avoided a vagueness challenge (repeatedly at issue in the abortion litigation with multiple courts striking laws down on that ground) but it also moved things fairly far along by itself.  Roe v. Wade itself was partially decided below on vagueness grounds though that turned out not to go over well on the Supreme Court level, in part because Justice White said its limitation to "life of the woman" was much more clear.  Cf. the lower court ruling itself and the concerns of Justice Douglas' separate opinion in Vuitch.

The "reform" approach that Georgia practiced had a health exception, which if broadly applied could basically cover nearly any abortion likely to be performed.** And, a law without a "health" exception would seem irrational even to many who would not support so-called "abortion on demand." Which is exaggerated since abortion like other medical procedures would remain regulated and subject to availability in various instances.  Doe v. Bolton could have dealt with things like requiring a panel of doctors to decide if an abortion was justified or blocking out of state patients.  It might have been better to leave the trimester scheme and related particulars for another day. 

Justice Stewart's separate opinion in the D.C. case basically said as long as a physician in good faith deemed it necessary for health, it was not a criminal abortion under the federal statute.  Given abortion is safer than childbirth, etc., when isn't that really the case?   And, back to that concern for factual findings. The main opinion cited another lower court opinion (the lower judge here taking judicial notice and resting on briefs) that did have factual findings, in particular to give a broad meaning to "mental" health.   A key determination:

This Court finds that the determination as to whether an abortion should be performed involves a professional medical judgment by a physician and that judgment, when made in good faith, should not be challenged.

I did not read the pro-life side's book challenging the factual basis of the two opinions, but suffice to say, there is a pretty good chance that someone on the other side would be able to refute the analysis.  Plus, I read and reread these cases repeatedly and skipped over the reference that other D.C. court case.  Putting aside college papers and so forth with dedications to cats, there is so much material out there even in the opinions themselves. And, with current day search availability, you have that much more material to go over.  For instance, Justice Powell's notes are available. So, we shall continue to have these entries.

The tweet still was a bit ill advised.

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* So,  "mental health" would include "for mental health reasons whether or not the patient had a previous history of mental defects."  Furthermore:

Certainly this construction accords with the general usage and modern understanding of the word "health," which includes psychological as well as physical wellbeing. Indeed, Webster's Dictionary, in accord with that common usage, properly defines health as the "[s]tate of being . . . sound in body [or] mind."

Justice White in his own separate opinion (the case split the justices in various directions) made clear to underline that an abortion had to be for "health" reasons.  His brief dissent in the abortion cases later underlined his belief (in rather crude terms) the opinions basically allowed abortions for any reason.  Justice White very well might have at least provided the eighth vote for a more narrow opinion that allowed abortion for "health" reasons.

**  The Georgia law had more restrictive language: "would endanger the life of the pregnant woman or would seriously and permanently injure her health."  But, the Supreme Court agreed with the lower court that a doctor should have wide discretion, "that the medical judgment may be exercised in the light of all factors," expressed in the earlier opinion.

And, again, this was in part to avoid vagueness grounds since just what would "seriously" etc. mean if a procedure safer than childbirth, one avoiding a range of physical and mental health problems, does not meet that test?