In-Lawfully Yours

Up Channel has "new" films on Sunday nights at 7/11 that are actually not new but promoted as new. For a few weeks now, the picks have been overall pretty good. This week we had a city girl not much into God come to help her old mother-in-law (as in ex -- the hubby cheated on her) move after the father-in-law died. She falls for the new minister, whose deceased wife was her sister-in-law. Thus, the punny title. Various familiar faces including two people in current shows and two from old shows. It has light touches mixed with a lot of serious content. Well acted with the story pretty well paced too. Sorta topical.

"An olive branch spurned" [Really now?]

Since the subject blog post (like most now at that blog) does not allow comments and posting at Twitter (I'm taking off four days for the holiday weekend anyways; I started taking off weekends) would be hard to full address the point, I provided a long email. The reply basically covers the bases so here it is:

I saw your "An Olive Branch Spurned" post at Balkinization and as a regular reader of that blog, Twitter participant and "fellow leftist" who is concerned with religious liberty, feel obligated to respond.

A basic concern for me is that that so-called olive branch was at best one with thorns. The claim that their concerns were met with "silence" is bogus.  A basic problem is the framing is suspect.  A reply in the thread (and it isn't the only one) is on point by a woman whose profile says she is a Mennonite and a mother:

This is disingenuous. Religious liberty is defined differently even among Christians. As a progressive Christian, I want religious liberty, but find Trump’s ideology to be anathema to any understanding of religion OR liberty.

As to the fear he is demanding harm to gay people, well, when he responds like this:

"Fine, LGBT rights are your thing; but don't act like we're worried about nothing."

Some olive branch. It's "a thing" and the basic implication (fair inference at least) is that somehow this "thing" conflicts with "religious liberty."  And, no, we are not saying you are worried about "nothing."   We are saying your framing is off and ultimately what you are worried about is what you have no right to remove.  This is repeatedly noted.

In your post, you note Hillary Clinton lost evangelical voters and that in general the gay rights/religion issue was a disaster for Democrats.  It is hard to know how much of a "disaster" it has been really, especially after the Democrats won the House back in 2018.  Obama, before 2012, strongly supported gay rights and still won the 2012 elections.  Did Mitt Romney make that much of an issue in 2012? [How much did Obama do to reach out to evangelicals?  I don't recall much myself.]

I really don't want to re-litigate yet again Clinton's loss, though I question that really decided it, but putting her aside, how much has Democrats as a whole loss on this issue?   It's perfectly fine to say Democrats should reach out to all voters, including evangelicals (who include a liberal minority), but that thread doesn't tell me much about that. They have repeatedly respected all believers.  It's okay to point out some cases where they can do more.  But, a "put up or shut up" type challenge that belittled GLBT rights led to many negative responses says little to that.  A lot of fault perhaps goes to the challenger.

Anyway, I'm fine with respecting religious liberty and have all my life.  A request is made for some sort of "deal."   The deal repeatedly appears to be stacked.  For years, see U.S. v. Lee, there was a basic rule that once you enter the commercial field you had to serve all comers and personal religious belief could not interfere. 

Now, that no longer is quite supposed to be the rule.   The "real" concern -- as cited in that very thread -- is supposed to be forcing nuns to distribute contraceptives.  My "deal" is that they need not but if they hire a cleaning woman, yes, that cleaning woman has a basic set of benefits including health care, which in part is used to carry out her religious liberty.   The problems with the other side is repeatedly referenced by trading sexual orientation with race.   This was brought up in the thread too.

If LGBT rights are not called a "thing" etc., there is not "silence" that there are some hard cases here, but ultimately on the level of Trump, yes, that is a trivial thing to support Trump over, especially since (again no "silence") he threatens religious liberty himself.  Yes, part of this is that there is a bit of a strawman on the claims of religious liberty.  To the degree there is some burden, yes -- once upon a time mixing the races for a significant minority was held out as a large burden too.  It is admitted that some held this minority in some disdain though even today they still have religious liberty. 

Finally, I think your argument that Trump's support among conservative Christians is "inherently fragile" a bit naive.  Push comes to shove, the concern for many is not "religious liberty."   I'm not telling you something that you don't know that religious liberty very well leads to results they strongly oppose.  Abortion for some is an inherently moral choice that their religious deems proper in certain cases.  A limited number of conservative Christians accept that but even they are still likely to vote for conservatives though Trump is so extremely bad that might help marginally.

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There is a certain "concern trolling" going on here. The tweet thread simply is not a good way to judge the situation.  I disagree with the author on certain details on lines to be drawn regarding religious accommodations etc., but here talk about the specific post. There is some concern to be made on this issue, partially because people talk past each other. To the degree that is so, we should pick our spots and do so carefully.

I just received a reply that agrees the terms of the deal matters but (citing one group) some suggest it is awful to even talk to "these dishonest bigots."  But, that doesn't even work since repeatedly people "talk" at least to the degree of rejecting the premises.  The tweet was dishonest.  And, the final remark that there is a lot to be covered is true as just noted. Using that tweet and tweet thread, however, is a dubious approach there. And, the reply agrees only a small segment of Trump voters will change their mind but they matter.  That's fine too. The question is how to go about that and responses (some substantive) to false premise tweets etc. tell me little there. Anyway, the reply is appreciated.

"High-profile commentator Dinesh D’Souza gets below-guideline probation sentence for violating federal campaign finance laws"

Didn't catch earlier that the prosecution was related to a Sen. Gillibrand (my senator) challenger. I found Mr. Drake's comment informative and a nice take-down of the somewhat trollish commenter addressed. Added a few of my own comments.

Judge Bridget Mary McCormack

It might be different elsewhere, but over here judicial elections are a joke, since they get so little coverage, so voters don't know anything about the candidates. Helps when your sister brings in the West Wing cast to help your candidacy (in Michigan). Turns out she won.

Roe Turns 40

[And Also:  Kudos that Stephen Colbert's sister, with an impressive bio and attitude, is running for an open House seat.  Hope everything, including name recognition, will give her a chance -- it is after all SC, and she is running as a Democrat for a seat controlled by Rs for thirty years.]

There has already been various discussions about the upcoming anniversary of the ruling, one I wrote about repeatedly over the years myself. Dawn Johnsen,* who has been part of its defense over the years, has some helpful things to say. This includes the nature of the ruling, current roadblocks and advice:

launch strategies to counter right-wing efforts to reframe the debate and muddle the public’s perceptions about abortion. “Effective strategies,” she wrote, “must target this public misperception and emphasize political action, the harm caused by incremental abortion obstacles, and a broad range of policies that promote reproductive choice and health.”

Current reports about the broad support of the basic ruling in Roe does not (at least publicly) concern one strong  opponent:

"I don't worry much about these polls..." said Scheidler. "I think a majority of Americans prefer to be called pro-life." He said knocking down Roe v. Wade - which would return the issue to the states - is not as important as educating people on "the great evil" of abortion.

And, I think many who push comes to shove support the right to choose, at least when it involves them, are uncomfortable about whole thing. Thus, there are basic roadblocks, helped by the looser Casey ruling:

“the protests, harassment and violence directed at abortion clinics, providers and their families; the lack of abortion training opportunities in medical school; and the literally hundreds of state abortion restrictions that are designed both to sound reasonable and to stop the performance of abortions as effectively as a criminal ban.”

As noted by DJ, such things can be an "undue burden" on abortion rights, though it is another matter if five justices would now think so.  As Rachel Maddow noted on Thursday, in various areas (including those states with ONE provider), we have legal abortion but at least a form of de facto criminalization as applied to many women.  Thus, the need for education of what is at stake, political** and personal action, like the move to re-open George Tiller's clinic, closed down after he was murdered while going to church.  That my friend is "assassination."

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Various movements are related and gay rights rightly is seen as being connected to the abortion rights movement, which itself is just part of a movement for equality, women's health, religious freedom etc. So, a shout-out to a same sex married military couple who rejected second class status in a private officers' club, which does not have the federal DOMA to blame on such a thing.  In fact, the Marines according to the article required equal access to private clubs in another situation.

Lawrence v. Texas turns ten this year, same sex marriage a concern in two major cases which will be heard in March. 

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* Hurrah!  Love her voice -- soft spoken passion and grit.

** As the filibuster is up for reform, full disclosure might include that I have supported its use in judicial nominations, in part to oppose certain anti-choice Bush nominees. The proposed reforms, however, won't end its use, and as the link notes, changes occurred when this extreme option has been misused.  Its use for judicial nominees is perhaps most defensible and even there the whole picture should be weighed.  

Electoral Vote Count

The sixth being a Sunday, this was moved up to today. The VP is there per the 12A, even though he himself won.  Would he preside if he was impeached?!

Obama Voted President

Tradition trumped suspense Monday as members of the Electoral College cast the official, final votes in the 2012 presidential election, a constitutional formality on President Obama's march to a second term.

Not seeing why it matters in Arizona, where he didn't win, but birthism popped up.

Pot Confusion

Chris Hayes last night had someone who noted that the early policy of the Obama Administration to only target violations of state law regarding medicinal marijuana was complicated in California because of the lack of clear state policy. Toss in comments earlier that those under 21 and who smoke in public (not allowed by new laws) are major targets of state police and the whole picture is somewhat confused. Details very important.

Vote Counting

A few cite with a bit of a sneer that a few state elections weren't completed for days or for over a week, including Florida. Florida had various problems, but on some level, who cares? So, it takes a bit of time to count the votes in certain real close elections. Imagine if Florida was allowed to finish its count in 2000. Waiting a couple days in Florida wasn't a big deal.

Right to secede?

Talk of secession is not meant to be taken literally. Instead, those who raise the subject wish to underscore the degree to which cultural and political divisions track geographic ones. Appearances can be deceptive, however. Blue states contain many Republicans, just as red states contain many Democrats. Even the rhetorical point of contemporary secessionists is thus subject to question.

Before current noises, there were (less noisy) talk, leading to an interesting discussion of the legal nuances of the matter.  I don't recall talk of hundreds of thousands (really?) after Bush won in 2004, but then opposition to a bad President and being a crackpot, different things.  Still, signing an online petition with no chance of passing is realistically symbolic here.  Secession being "bad law and policy," notwithstanding.

Lyle Denniston in a recent essay on the subject noted:

In order to overrule Texas v. White by constitutional amendment, a secession proposal would have to modify the very Preamble of the Constitution, in which the nation’s people created “a more perfect Union,” and would have to wipe out the guarantee in Article IV of a “republican form of government” in each state. Those were the provisions of the Constitution on which the Supreme Court relied in 1869. And the nation’s people deeply revere those constitutional commitments.

A 1869 ruling is not necessarily binding for all time, but we can accept it as precedent. Texas v. White, 5-3, noted that "in all its provisions, looks to an indestructible Union, composed of indestructible States" and even though Texas didn't have representation in Congress etc., it was still a "state" during the Civil War and under military government.  The dissent argued it was not a "state" for purposes of the case, not answering the question of its presence in the union during the war.  

As the linked Dorf essay notes, states are not necessarily "indestructible" as seen by the presence of the states of Maine and West Virginia, both voluntary (the latter open to some question) offshoots of larger states, Massachusetts and Virginia.  As the ruling itself noted: "There was no place for reconsideration or revocation, except through revolution or through consent of the States." The amendment process provides a possible means to such agreement as might congressional agreement, which is after all how Texas entered the union. 

The concern here is an involuntary (that is, regarding the nation as a whole) secession of one or more states.  Revolution is one way to go here and we had our own -- the American "Revolution."  But, that seems so radical.  Thus, some try to find a means within the existing system to justify what some claim is not allowed.  Sometimes, the result is really a revolution of the current law (honestly, such was the case for various Warren Court rulings, including those alleging to follow precedent) though not admitted as such.  There is a lot of play in the joints.

The Civil War is seen by many as a test of history that secession is not legal under our constitutional system.  I question this, even if Lincoln (see also, the Dorf essay) is honored by many on this point.  Basically, history determined defending slavery (yeah, that's what it did) was not a valid reason, nor losing a fairly run national election. Election has consequences and all that.  To take the quote in mind, what the national government truly was not guaranteeing a republican form of government? Would remaining in a tyrannous system in effect be non-republican?

When in the Course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume among the powers of the earth, the separate and equal station to which the Laws of Nature and of Nature's God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.

The Declaration of Independence appealed to natural law to defend the actions of the colonists, ending with an assertion of "power ... to do all other Acts and Things which Independent States may of right do."  Sounds to me like a legal argument of sorts -- they would be independent states pursuant to the laws of nations.  In effect, the document sets forth a contractual argument that once things get bad enough, the people have a right to rebel.  It is in effect a duty.  To me, this is a "legal" argument.

There were a few posts at Volokh Conspiracy (I linked to one) and the general sentiment seemed to be that there isn't a legal argument here, just a revolutionary one.  Eh.  We as a nation defended our revolution in our basic defense to said act at least partially in legal terms, a legal mindset being of special importance, not religion, conquest or nativity.  The Ninth Amendment cites unenumerated rights that arise in part from natural rights and the government in place has no legitimate power to deny them.  Said "power" is thus limited and the DOI [and the 10A] suggests there is retained a certain popular power of self-help once this is ignored too much, the 2A ensuring self-defense is not denied as well.

I realize there was talk of "perpetual union" and a "more perfect union," but is it really credible that some time in the 18th Century a group can bind future generations for all time on this matter?  Surely, if one state decides things are horrible, it is very questionable, and it will realistically be a judgment of history (and often military conflict) to determine if it is correct.  The Confederate states failed on that.  But, putting aside their grounds and how easy they deemed it for them to leave, their argument to me was not totally wrong.  If tyrants truly controlled the nation, totally denying people a republican form of government, perpetual injustice does not to me seem the only "legal" path.  A foundation is necessary there.

So, I think it possible that there is a legal right to secede if certain criteria are met and that it would not be extralegal revolution. This nation is not merely a matter of governmental might.  The sovereignty retained by the people could in a horrible situation be the sole legitimate power, requiring them to establish new governments, including new nations.  The need, however, are not to be "light and transient causes" such as the "wrong" person winning an election with a program deemed strongly unjust by some minority of the populace.  Be it the New Deal or Bush's program.  More like Nazi control.

If this sort of natural law (which need not be based on a deity) argument is not what "legal" means in these debates, okay, but if basic rights are in effect natural, the argument might go further than some might like.

Non-voting PR Delegate On Recent Vote on Status

A change appears to be desired, even if the particular change is unclear.

Marijuana Legalization Measures Raise New Complexities

U.S. Rep. Adam Smith and 17 other U.S. Congress members formally asked the Department of Justice and Drug Enforcement Administration not to enforce federal drug laws against marijuana use in Washington and Colorado in a letter released Friday. Though both states have made regulated, recreational use of marijuana legal, federal agencies still have the power to enforce a federal ban on the drug.

This sentiment is popular if not unanimous.  The Administration early on made it a matter of policy to not target medicinal marijuana that was provided subsequent to state law.  For reasons the critics of the change in policy repeatedly don't make that clear to me (the confirmation of a strict DEA head seems notable), this hands-off policy changed to some degree mid-term.  The Administration is not ideal here though some positives can be cited.  No radical change against the "drug war" though. 

Two states now decriminalizing marijuana will raise new concerns, particularly since they do more [edit: but see comment by Marty Lederman questioning if the state itself will be in trouble] than merely decriminalize, which is different than non-enforcement or laws that make personal possession of small amounts a trivial matter or even protected (Alaska held that it was a matter of privacy).   Such is the rub -- the regulation and taxation of the substance is logical and all, but it raises more red flags for the federal government. Medicinal marijuana laws got three votes in the Supreme Court, but even the dissent didn't go further than that. Likewise, it noted that "homegrown cultivation and personal possession and use of marijuana for medicinal purposes has no apparent commercial character," while regulating the sale of the stuff surely does.

Even going beyond that narrow issue, states might be deemed to have more interest over health matters, covering medicinal use.  As noted in an article discussing the Supreme Court striking down a barrier to Oregon's euthanasia law:

While the court's decision was based on standard principles of administrative law, and not on the Constitution, it was clearly influenced by the majority's view that the regulation of medical practice belonged, as a general matter, to the states.

Of course, six justices upheld a federal policy against medicinal marijuana given the comprehensive scheme in place regulating drugs in a national and international commerce, holding even the limited effects of medicinal marijuana (somehow two justices felt differently for the PPACA) on said commerce justified overriding state law.  Still, the opposition had more bite than states going its own way on even recreational use of drugs.  Nonetheless, bite there is as a matter of policy and argument, particularly unless we are talking about major distribution and production centers. These still are largely matters of state concern ideally and in practice. 

Drug policy overall tends to have medical effects given the nature of the substance in question, even if the drugs in question are not used as traditional medicine.  Local crime policy is also something best left to the states and use of states as laboratories is totally appropriate here.  This too has constitutional implications, at least as a matter of policy that should be rejected only in compelling cases.  Personally, I also think use of marijuana is basically a personal liberty issue, even without the overlap with various specific constitutional provisions, including federalism concerns.*

Some benign neglect from the Obama Administration, while for form's sake at least not officially accepting the laws as valid, would be best.

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*  Marijuana use over time repeated had various First Amendment implications, for instance.  It was a symbol of dissent, a social lubricant (association/assembly) and the mind altering functions had both communicative and religious/spiritual applications. Criminalization in practice violates the 4A, led to excessive punishments and is applied unequally.

And, general liberty concerns, including for personal health, warrants protection too. Meanwhile, for consenting adults, the state interests for criminalization were/are low, especially given the dangers of various legal substances. A separate amendment was deemed required to nationally target alcohol and that went badly.  Marijuana should be deemed similar in that respect.

Rev. Joe (Kyrsten Sinema)

I know I said no more election stuff, but someone referenced Romney's religion, and this (from 2005) is great: "My state representative is a bisexual apostate Mormon! And Arizona's youngest legislator." Calling Trey Parker! Seriously, congrats. Arizona has some good people, not all like the asshole senator. Giffords' seat still too close to call. [Her guy won.]

Some More Election News

Bisexual Kyrsten Sinema (D-AZ) has appeared to have won her close race for Congress,* and is one of many intriguing newbies or potential newbies.  She would not be the "first non-theist" (Rep. Stark, non-theist Unitarian fits the bill), but that just adds to her promising resume. Diversity (the whole NH delegation will be women) comes in various ways, including religion, which is notable even if there is no religious test on the record:

Hawaii had two momentous elections. First, they elected Mazie Hirono as the state's first woman senator. She is also the first Japan-born immigrant, the first Buddhist, and the first Asian-American woman elected to the US Senate. Stepping into Hirono's former seat in the US House of Representatives will be Tulsi Gabbard, a 31-year-old Iraq War Veteran, who will be the first Hindu-American to serve in the US Congress. Well done, Hawaii.

Tulsi Gabbard, showing the complex dynamics possible regarding such things, has said that her military experience has led her to have more liberal social views:

"It brought me to a deeper understanding of the meaning of freedom in our country," Gabbard said in an interview. "We cannot afford to walk down that dangerous path of government overstepping its boundaries into the most personal parts of our lives."

Meanwhile, this review of the election results, including some ballot measures, including a couple lesser known local losses for same sex rights, was helpful.  More helpful would be a reform of re-districting in which legislatures would not skewer things in ways that don't accurately reflect the electorate. Gerrymandering is quite old, but it is ever more possible these days.  Along with national voting standards (now at risk with a new Supreme Court cert grant)  and less partisan control.

This will (perhaps) mark the end of election news until the electoral votes are placed and counted, at least, if they do something interesting!

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* As the first article notes, her (black) Republican opponent, outside of SSM, has really downplayed any anti-gay rhetoric in the campaign, more so in fact that Sinema's Democratic primary challenger. I'm not very gung ho on the "Republican Liberty Caucus" idea, but there are some exceptions -- see this thread as to Rep. Jeff Flake, though the right to choose an abortion is usually a basic requirement for me. 

Big Money: Mixed Bag Results

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As noted by the professor in the video and comments here, let's not be TOO cocky about "big money" losing this election. Mixed bag, including affecting Obama's message.

The Long Haul (And It Starts Again Now!)

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Rev. Joe (Christian Conservatives Lose Out)

There are various accounts about how Christian conservatives lost out in this election. Well, "yah," especially on the moronic "grand threat to liberty contraceptive mandate" b.s. But, their influence is surely not dead, and one way to go there is stop being so over the top about things. I'm sure there is a conservative side to the electorate. But, you know, finesse.

Puerto Rico Statehood

The vote was not fully clear so don't know how much it matters, but should be reported on at least somewhat as much as pot measures. Obama promised to follow the will of the voters.

Republican Consolation Prize: The House

“So the House results,” he said, “are best explained by incumbency, redistricting, a status-quo election, and a vague desire for bipartisanship and balance of power.”

2010 was good timing for the "Tea Party" gang.

More Election News

Dem. lost the NV U.S. Senate race by about 1%, while over 9% voted for third parties. Florida has yet to be called though Obama is leading by over 1%. Obama won two less states (IN and NC) this time around. LGM has good "why it matters" stuff. Meanwhile, Bay's gone. Was a (costly) mistake to get him with that deal but wish him well. One more drag gone.