[Eugene Volokh, 7:32 PM]
Go Bruins! There are two UCLA people among the 11 latest Presidential Medal of Freedom recipients: John Wooden and James Q. Wilson.

 
[Eugene Volokh, 4:28 PM]
ClearType looks so much nicer! I've been using the Windows XP ClearType option for a couple of days now, both at the office and on my laptop at home, and I like it very much. Try it out -- there's nothing to download; all you need to do is activate one (admittedly hard-to-find) Windows option: See here for the directions.

 
[Eugene Volokh, 12:24 PM]
More on the French and e-mail: A couple of people e-mailed me to point out that the term "courriel" is quite popular in Quebec, and that this is part of why the French government is adopting it. Sure -- the original newspaper article that I link to said that the term was popular in Quebec. I don't think, though, that this undermines my point: It would still be a pretty big change in France from the way things are now done in France and is an example of the French government imposing significant cost and effort on Frenchmen (though, as I mentioned, not all Frenchmen but, according to the story, just people who write things for government agencies). The fact that the Quebecois already do things this way doesn't much reduce that cost or effort.

     One person has also e-mailed me to say that the AP story was mistaken, and the "courriel" usage is not required, even for government officials. Well, if the AP got it wrong, so did the Agence France Press, July 9, 2003: "The French government, in a bid to turn back the tide of English words in the field of technology, has banned its civil service from using the term 'e-mail' instead of its approved French equivalent, the culture minister announced Wednesday. All government ministries, websites, publications and documents must now use 'courriel' -- a shortening of 'courrier electronique' (literally: electronic mail) -- when they are referring to the messages sent via the Internet, the ministry said in a statement. . . ." Other news sources seem to confirm this.

     I have also heard doubts that the French government sometimes prohibits the use of English terms even by some nongovernmental agencies. My original post made clear that this is not so as to courriel, which is apparently only being urged for government agencies as a substitute for the prohibited "e-mail"; but it did say that "the French language police sometimes tr[ies]" "to punish nongovernmental entities for using" foreign terms. A bit of research confirms this: According to the Washington Post, June 28, 1994, "Culture Minister Jacques Toubon has pushed legislation through the Senate and National Assembly that imposes up to $ 1,800 fines on those using foreign terms in official, commercial or journalistic contexts when a French equivalent exists."

     Moreover, according to that story, "the government recently published a Dictionary of Official Terms of the French Language as a guide for imposing fines. Compiled by 'terminology commissions' at government ministries, it sets forth the appropriate words for Americanisms like joystick, label, lifting (a word meaning face lift that Americans never use) and cordless phone. Proper translations: manche a balai, etiquette, restylage and the unwieldy poste telephonique sans cordon." Perhaps this source -- and others that say pretty much the same thing -- is mistaken; but it does lead me to think (at least until I see some contrary evidence) that the original post was correct.

 
[Eugene Volokh, 4:49 PM]
A bit more on "e-mail": My New Shorter Oxford tells me that "mail" originates from . . . old French ("male," a variant of "malle," which means bag or trunk). True, the "e" is from Greek, but French borrows such words from Greek, too; I believe that "electron," for instance, is the same in French and in English.

     So they invade jolly old England, conquer the place, foist their lingo on the locals, and then when they get one of their own words back (and with a jaunty Greek combo), say "Ew! Tainted! It's got those English cooties!" Greg Goelzhauser has a suggestion that will teach them: Expunge all French-origin words from English. It's only 28% of the language, he points out, shouldn't be too hard.

 
[Eugene Volokh, 4:18 PM]
Press Release: U.S. Professor's Scientific Results Replicated, Within Margin of Error: OK, they were replicated by the same Professor, but that's just a quibble. Reader A. Sandler suggests that I retry my email (or e-mail) vs. courriel query by using "le google" to search French-language pages rather than French-domain pages. The results still show a stunning victory for email/e-mail, though the margin is just a little less -- over 3,180,000 vs. 260,000. Courriel is up to 8.18% of e-mail, rather than the 4.63% that one gets if one surveys just .fr sites -- but the courriel pages still seem to be small pommes de terre.

 
[Eugene Volokh, 3:53 PM]
Hugh Hewitt Show: I'm on the Hugh Hewitt Show right now (in the middle of a break), talking about the UC restrictions on faculty-student dating, and whether they're consistent with Lawrence v. Texas. My tentative view: They are consistent with the right of sexual autonomy -- which, as I understand it, has been recognized under the California Constitution's explicit "right to privacy" guarantee even before Lawrence -- at least if they're read relatively narrowly, limited to situations where the relationships really seem likely to substantially harm the university or the students. If the policy is interpreted more broadly, to prohibit even relationships that are highly unlikely to lead to any serious problems, it might still conceivably be upheld as an, er, prophylactic measure, but it would at least face a more serious challenge.

 
[Eugene Volokh, 3:14 PM]
Satan discovered, and he's in Buffalo. How could I have missed this? That's what I get for not following sports. Thanks to reader Mike Robinson both for pointing this out, and for pointing out the internal (infernal?) identification number (see the URL) that ESPN gave him.

UPDATE: Reader Dan Lewis reports that the number comes from STATS. OK, whatever the sports mavens say.

 
[Eugene Volokh, 1:14 PM]
Federal district court dismisses challenge to the Nevada Supreme Court Order: The decision is here.

 
[Eugene Volokh, 11:18 AM]
Press Release: U.S. Professor Announces Scientific Study of French "Courriel" Decision: A google search for email or "e-mail" in the .fr domains reports "about 1,930,000" results. A google search for "courriel" in the .fr domains reports "about 89,300" results. Since all scientific studies benefit from having more numbers, I will also report that "courriel" has thus 4.63% the "penetration du market" (I just made that phrase up) of "email" and "e-mail." Une folie grande! Now that's science for you -- and fast.

 
[Eugene Volokh, 11:13 AM]
France Bans E-Mail: Well, to be precise, "e-mail":

Goodbye "e-mail", the French government says, and hello "courriel" -- the term that linguistically sensitive France is now using to refer to electronic mail in official documents.

The Culture Ministry has announced a ban on the use of "e-mail" in all government ministries, documents, publications or Web sites, the latest step to stem an incursion of English words into the French lexicon.

The ministry's General Commission on Terminology and Neology insists Internet surfers in France are broadly using the term "courrier electronique" (electronic mail) instead of e-mail -- a claim some industry experts dispute. "Courriel" is a fusion of the two words.

"Evocative, with a very French sound, the word 'courriel' is broadly used in the press and competes advantageously with the borrowed 'mail' in English," the commission has ruled. . . .

The 7-year-old commission has links to the Academie Francaise, the prestigious institution that has been one of the top opponents of allowing English terms to seep into French.

Some Internet industry experts say the decision is artificial and doesn't reflect reality.

"The word 'courriel' is not at all actively used," Marie-Christine Levet, president of French Internet service provider Club Internet, said Friday. . . .

I'm happy that at least the government isn't trying to punish nongovernmental entities for using this term (as I understand it, the French language police sometimes does try to punish nongovernmental entities for using foreign terms in some contexts, but this isn't so here); and of course, the government is entitled to choose what terms it uses in its own communications. Still, seems pretty unwise (and laughable) to me: Like "freedom fries," only much broader (as I recall, no-one was trying to ban the use of "French fries" throughout the U.S. government), more inconvenient, and more expensive.

 
[Eugene Volokh, 11:07 AM]
Pro-Palestinian Forum at Rutgers: The Rutgers administration and the New Jersey Governor are not canceling a pro-Palestinian forum that's scheduled for mid-October at the University (which is a public institution), despite claims that the event will be anti-Semitic.

     Sounds to me like the right decision -- in fact, the only constitutionally proper decision. The forum is being organized by a student group, and I've seen no evidence that the group was being given any special benefits by the University; as best I can tell, the group is just being given the same sort of access to university property and the same sort of funding as any other group (they get $1400 in student government funding, out of a total of about $500,000 being distributed to all sorts of student groups). The university has, I think, created what First Amendment law calls a "designated public forum" (the student group funding program and the right to use university property for group-organized events). Under Rosenberger v. University of Virginia (1995) -- and lots of other cases that discuss "designated public fora" -- the university may not exclude certain groups or programs because of their viewpoint.

     It may well be that the label "pro-Palestinian forum" (which is how news accounts describe this) doesn't tell the whole story, and that an opponent of the event -- Barry Honig, a state Senate candidate -- is correct that it would more accurately be called an "anti-Semitic and anti-American hatefest." I just don't know enough of the facts to be sure. But even if it is an anti-Semitic and anti-American hatefest, it's protected by the First Amendment. (Even setting aside the legal question -- for instance, if the same controversy had arisen at, say, Harvard or USC, which are private universities -- I think that the university should allow the forum, as a matter of academic freedom principles.)

     As I've often argued in the past as to other events, the government ought not give special sponsorship or endorsement to evil speech. Naturally, there will always be questions about what's evil and what's not, but the university is entitled to draw that line as to speech that it specially sponsors and provides special access to. But when the government opens up a forum for a wide range of speech -- whether this is done via student group funding, Post Office subsidies for the mailing of newspapers, tax exemptions for charitable contributions to educational or public advocacy groups, and so on -- it may not then impose viewpoint-based conditions on this broadly available benefit.

     Some newspaper stories on this event: "Rutgers defends students' right to hold pro-Palestinian forum", "McGreevey to support Rutgers on conference" (McGreevey is the New Jersey Governor), and "Jewish activists fight conference".

 
[Eugene Volokh, 10:33 AM]
Mayo v. Satan and His Staff: The "he's in Hell" eulogy lawsuit (see yesterday's posts) reminded some readers of this classic case. I reproduce it below, courtesy of this site; the case is indeed a real federal case, known for years to law students who need to do something to put off studying for exams:

--------------------------------------------------------------------------------

Misc. No.: 5357

UNITED STATES ex rel. Gerald MAYO

v.

SATAN AND HIS STAFF

United States District Court
Western District of Pennsylvania

54 F.R.D. 282
December 3, 1971


Gerald Mayo, pro se.

MEMORANDUM ORDER

Weber, District Judge.

Plaintiff, alleging jurisdiction under 18 U.S.C. § 241, 28 U.S.C. § 1343, and 42 U.S.C. § 1983 prays for leave to proceed in forma pauperis. He alleges that Satan has on numerous occasions caused plaintiff misery and unwarranted threats, against the will of the plaintiff, that Satan has placed deliberate obstacles in plaintiff's path and has caused plaintiff's downfall.

Plaintiff alleges that by reason of these acts Satan has deprived him of his constitutional rights.

We feel that the application to file and proceed in forma pauperis must be denied. Even if plaintiff's complaint reveals a prima facie recital of the infringement of the civil rights of a citizen of the United States, the Court has serious doubts that the complaint reveals a cause of action upon which relief can be granted by the court. We question whether plaintiff may obtain personal jurisdiction over the defendant in this judicial district. The complaint contains no allegation of residence in this district. While the official records disclose no case where this defendant has appeared as defendant there is an unofficial account of a trial in New Hampshire where this defendant filed an action of mortgage foreclosure as plaintiff. The defendant in that action was represented by the preeminent advocate of that day, and raised the defense that the plaintiff was a foreign prince with no standing to sue in an American Court. This defense was overcome by overwhelming evidence to the contrary. Whether this would raise an estoppel in the present case we are unable to determine at this time.

If such action were to be allowed we would also face the question of whether it may be maintained as a class action. It appears to meet the requirements of Fed.R. of Civ.P. 23 that the class is so numerous that joinder of all members is impracticable, there are questions of law and fact common to the class, and the claims of the representative party is typical of the claims of the class. We cannot now determine if the representative party will fairly protect the interests of the class.

We note that the plaintiff has failed to include with his complaint the required form of instructions for the United States Marshal for directions as to service of process.

For the foregoing reasons we must exercise our discretion to refuse the prayer of plaintiff to proceed in forma pauperis.

It is ordered that the complaint be given a miscellaneous docket number and leave to proceed in forma pauperis be denied.

UPDATE: Hey, Tim Sandefur beat me to it, by six days.

 
[Eugene Volokh, 10:09 AM]
Enjoy! A lunchtime conversation reminded me of a little-recalled item about the Sixth Amendment:

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the state and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the assistance of counsel for his defense.

That's right -- if you're accused of a crime, you don't just have the rights; you shall enjoy them. So if someone asks you "When you were being tried, what did you think of your rights?," and you say "The whole process was really awful," you're acting unconstitutionally. The only constitutionally permissible answer is "I enjoyed them, thanks!"

     Oh, and don't even dream of asking whether the federal government's civil war debt should have been considered valid. After all, as section 4 of the Fourteenth Amendment tells us, "The validity of the public debt of the United States, authorized by law, including debts incurred for payment of pensions and bounties for services in suppressing insurrection or rebellion, shall not be questioned."

 
[Eugene Volokh, 8:29 AM]
A few words on publishing reader e-mail: I thought I might mention a few general thoughts about my guidelines on publishing reader e-mail (or excerpts from reader e-mail). These aren't necessarily my cobloggers' views, and I might not always adhere to these principles myself; but I just thought I'd mention them, in case readers find them interesting:

1. I generally assume that reader e-mail is intended for publication, unless the message explicitly says otherwise. Naturally, if you don't want the message published, please say so as prominently as possible (and more than once, if you want to be extra sure) -- I'd hate to inadvertently miss your request, and cause embarrassment all around.



2. If I publish an e-mail or part of an e-mail, I'll generally mention the reader's name, unless I'm criticizing the argument, in which case I'll tend to omit the name, just to keep the disagreement from seeming personal. (Sometimes I will include the name, if I think the disagreement is fairly mild, but often I won't.)



3. If I use someone's e-mail and include the sender's name, I'm always glad to also include a link to the sender's Web page; just please include the Web page address in your signature.



4. I will occasionally make minor corrections to obvious typos in reader messages; I will sometimes mark these corrections with [bracket]s, but sometimes I won't.



5. I'll tend to thank people by name if they send an interesting link that I use, or even make an interesting argument that I paraphrase; but if I get more or less the same item from a bunch of people, I'll often omit the individual credit.

In any case, these are just some general principles, which I'm sure I sometimes fail to adhere to, either deliberately or not.

 
[Eugene Volokh, 7:59 AM]
First the health benefits of alcohol, now this (and from the Washington Post, citing Reuters citing Real Scientists). And apparently the part about hair on your palms isn't right, either -- or, if it is, the better part of 3 billion men is doing a lot of surreptitious shaving. Thanks to Andrew Sullivan for the pointer.

 
[Eugene Volokh, 6:08 PM]
Las Vegas Sun and supermajorities: Reader Mark Garbowski points to this Las Vegas Sun editorial:

Listening to the hue and cry from the White House, one would believe that the Democrats are mercilessly pummeling President Bush's judicial nominees. The president and Republicans are fuming that the system for confirming presidential nominees is broken and that democracy itself depends on instituting immediate reforms.

The more accurate picture is that over the past two years the Senate has confirmed nearly 70 percent of Bush's nominees to the district and circuit courts. According to USA Today, vacancies on federal court benches are at their lowest level in 13 years.

It's true that Democratic filibustering is holding up the nominations of two judges -- Texas State Supreme Court Judge Priscilla Owen for the U.S. 5th Circuit Court of Appeals and Washington attorney Michael Estrada for the U.S. Court of Appeals for the District of Columbia. The Democrats have severe reservations about these candidates and are doing nothing more than invoking their privileges in blocking the nominations. If Bush thinks this is an example of a broken system, he should remember how often Republicans have resorted to the same tactic.

Compare this endorsement for the supermajority (60%) requirement for stopping a filibuster with the excerpt that I also criticize below:

Regardless how many "experts" the tax-hating Review-Journal could drag out to intimidate the jurists, the fact remains that their reasoning was sound, however unusual it may have been. And, it did what most clear-thinking Nevadans wanted to be done. It ordered the Legislature to do its job and do it by majority rule, a concept that has served this republic remarkably well and Nevada extraordinarily so for the past 139 years. . . .

We [Nevadans] created a situation in which the majority rules but a minority overrules, so we can fix that, too. Whoever heard of a minority of people telling the majority of the citizens in any state how they should live, spend their money and educate their children? . . .

So, which is it? Is it OK for a minority of Senators to block judges and for a minority of legislators to block tax cuts (though remember that in Nevada, a simple majority of legislators can just ask the voters to approve, by simple majority, a tax cut)? Or is it impermissible for a minority of Senators to block judges and for a minority of legislators to block tax cuts? Or is there a subtle distinction that I'm missing here?

UPDATE: Reader Fabian Gonell points out that the first of these items is an unsigned editorial, and the second is a column by the Sun's editor. I had assumed that at smallish papers like the Sun, the editorials would at least generally express the editor's views, but the reader reminds me that this need not be so: Among other things, there are executive editors (there is one, apparently, at the Sun), and doubtless other breeds of editor as well. So the quotes aren't as inconsistent as I thought they were, though it does still seem noteworthy that the editor condemns supermajority requirements while the editorial defends them.

 
[Eugene Volokh, 4:53 PM]
Great quote about freedom:

Your fathers . . . were peace men; but they preferred revolution to peaceful submission to bondage. They were quiet men; but they did not shrink from agitating against oppression. They showed forbearance; but that they knew its limits. They believed in order; but not in the order of tyranny. With them, nothing was "settled" that was not right. With them, justice, liberty and humanity were "final;" not slavery and oppression. You may well cherish the memory of such men . . . . They seized upon eternal principles, and set a glorious example in their defense. Mark them!

From Frederick Douglass, What to the Slave is the Fourth of July?, reprinted in Frederick Douglass: Selected Speeches And Writings 192 (P. Foner & Y. Taylor eds., 1999). Thanks to Timothy Sandefur for the quote, which I found in his The Right to Earn a Living, 6 Chapman Law Review 207 (2003).

 
[Eugene Volokh, 4:50 PM]
Q-Day: Various seemingly reliable sources agree: Despite many publication date slips, Neal Stephenson's Quicksilver will indeed be out September 23, 2003. I would await it with bated breath, if that weren't a pretty foolish thing to do for two months.

 
[Eugene Volokh, 4:25 PM]
Tax burdens, then and now: Apropos my Oliver Wendell Holmes / taxes post from yesterday, Max Sawicky points out that the tax burden (federal plus state) now is just about 27%, not 35% as I first mentioned (though I've corrected it in respond to Sawicky's message). My apologies for the error; I was working off data that I had gotten a few years back, but looking at the Bureau of Economic Analysis data that he gives me (here and here, the recent peak was at a titch above 30%, in 2000.

     Various data that I've received from various sources -- anti-tax sources, so keep in mind the possible bias, but it seems sound -- suggests that the tax burden in 1927 was about 10%. The then-recent peak, according to the Tax Foundation was 13.7%, in 1921 (thanks to Carol Laughlan for that pointer).

 
[Eugene Volokh, 3:29 PM]
Nevada Supreme Court defended: The editor of the Las Vegas Sun defends the Nevada Supreme Court's decision:

Regardless how many "experts" the tax-hating Review-Journal could drag out to intimidate the jurists, the fact remains that their reasoning was sound, however unusual it may have been. And, it did what most clear-thinking Nevadans wanted to be done. It ordered the Legislature to do its job and do it by majority rule, a concept that has served this republic remarkably well and Nevada extraordinarily so for the past 139 years. . . .

We [Nevadans] created a situation in which the majority rules but a minority overrules, so we can fix that, too. Whoever heard of a minority of people telling the majority of the citizens in any state how they should live, spend their money and educate their children? . . .

     Well, it was actually a majority vote of the citizens that set up a 2/3 legislative majority constitutional requirement for tax increases -- the same constitutional requirement that the Justices (not the people or the citizens) decided to order the Legislature to ignore. And this constitutional requirement actually also allows tax increases if a "majority of the citizens" so vote at the next election, so the "majority of the citizens" aren't actually restrained -- it's just legislative majorities that are restrained unless they can get a 2/3 vote.

     And actually "this republic" has worked "remarkably well" with various supermajority rules: Apparently the editor had never heard of a minority of Senators being able to block treaties (which require a 2/3 supermajority), or impeachments (likewise, 2/3), or a minority of Senators, Representatives, or state legislatures being able to block constitutional amendments (which require a 2/3 supermajority in each house and majorities in 3/4 of the state legislatures). Oh, and here are the other provisions in the Nevada Constitution that require legislative supermajorities -- but I guess "who ever heard of" them? Presumably, according to the editor's logic, they too should be swept aside when the Nevada Supreme Court thinks these merely procedural rights get in the way of what it sees as substantive entitlement:

[Art. 1,] Sec: 3. Trial by jury; waiver in civil cases. The right of trial by Jury shall be secured to all and remain inviolate forever; but a Jury trial may be waived by the parties in all civil cases in the manner to be prescribed by law; and in civil cases, if three fourths of the Jurors agree upon a verdict it shall stand and have the same force and effect as a verdict by the whole Jury, Provided, the Legislature by a law passed by a two thirds vote of all the members elected to each branch thereof may require a unanimous verdict notwithstanding this Provision.

[Art. 4,] Sec: 6. Power of houses to judge qualifications, elections and returns of members; selection of officers; rules of proceedings; punishment of members. Each House shall judge of the qualifications, elections and returns of its own members, choose its own officers (except the President of the Senate), determine the rules of its proceedings and may punish its members for disorderly conduct, and with the concurrence of two thirds of all the members elected, expel a member.

[Art. 4,] Sec: 18. Reading of bill; voting on final passage; number of members necessary to pass bill or joint resolution; signatures; referral of certain measures to voters; consent calendar.

1. Every bill, except a bill placed on a consent calendar adopted as provided in subsection 4, must be read by sections on three several days, in each House, unless in case of emergency, two thirds of the House where such bill is pending shall deem it expedient to dispense with this rule. . . .

[Art. 4,] Sec: 35. Bills to be presented to governor; approval; disapproval and reconsideration by legislature; failure of governor to return bill. Every bill which may have passed the Legislature, shall, before it becomes a law be presented to the Governor. If he approve it, he shall sign it, but if not he shall return it with his objections, to the House in which it originated, which House shall cause such objections to be entered upon its journal, and proceed to reconsider it; If after such reconsideration it again pass both Houses by yeas and nays, by a vote of two thirds of the members elected to each House it shall become a law notwithstanding the Governors objections. . . .

[Art. 7,] Sec[:] 1. Impeachment: Trial; conviction. The Assembly shall have the sole power of impeaching. The concurrence of a majority of all the members elected, shall be necessary to an impeachment. All impeachments shall be tried by the Senate, and when sitting for that purpose, the Senators shall be upon Oath or Affirmation, to do justice according to Law and Evidence. The Chief Justice of the Supreme court, shall preside over the Senate while sitting to try the Governor or Lieutenant Governor upon impeachment. No person shall be convicted without the concurrence of two thirds of the Senators elected.

[Art. 7,] Sec: 3. Removal of supreme court justice or district judge. For any reasonable cause to be entered on the journals of each House, which may, or may not be sufficient grounds for impeachment, the Chief Justice and Associate Justices of the Supreme Court and Judges of the District Courts shall be removed from Office on the vote of two thirds of the Members elected to each branch of the Legislature, and the Justice or Judge complained of, shall be served with a copy of the complaint against him, and shall have an opportunity of being heard in person or by counsel in his defense, Provided, that no member of either branch of the Legislature shall be eligible to fill the vacancy occasioned by such removal.

[Art. 16], Sec: 2. Convention for revision of constitution: Procedure. If at any time the Legislature by a vote of two thirds of the Members elected to each house, shall determine that it is necessary to cause a revision of this entire Constitution they shall recommend to the electors at the next election for Members of the Legislature, to vote for or against a convention, and if it shall appear that a majority of the electors voting at such election, shall have voted in favor of calling a Convention, the Legislature shall, at its next session provide by law for calling a Convention to be holden within six months after the passage of such law, and such Convention shall consist of a number of Members not less than that of both branches of the Legislature. In determining what is a majority of the electors voting at such election, reference shall be had to the highest number of votes cast at such election for the candidates for any office or on any question.

 
[Eugene Volokh, 3:03 PM]
Nevada in California: Dan Weintraub of the Sacramento Bee blogs that

California Schools chief Jack O'Connell elaborated this afternoon on his threat to file a petition with the Supreme Court seeking to force a Nevada-style break in the state budget deadlock. O’Connell said he expects his department’s attorneys to file a petition early next week “seeking a ruling that would suspend the two-thirds requirement for passing a budget or increasing revenues, and instead, allow a simple majority.”

No word yet on why O'Connell doesn't simply ask the Legislature to pass the education budget by a simple majority, which the state Constitution allows. I think the answer is pretty clear. This suit has no chance of prevailing, and O'Connell is grandstanding to put pressure on Republican lawmakes and win brownie points for himself with the education lobby.

I'm not up on the details, or on the relevant provisions of the California Constitution; I'm also swamped this afternoon, and probably won't get a chance to get up to speed on this. But if Weintraub is right, then it sounds like a sure loser of a lawsuit (though, hey, I'd have guessed the same about the Nevada lawsuit had I heard about it when it was filed).

 
[Eugene Volokh, 1:42 PM]
Infernal litigation: Reader Steven Jens writes, apropos the post about the New Mexico priest:

What if the Martinez family could prove that the deceased wasn't in Hell? Then they'd have a case, wouldn't they?

I don't suppose God can be compelled to testify, though. A lot of cases could be resolved much quicker if he could be. Satan wouldn't be a very credible witness. Maybe something photographic . . .

 
[Eugene Volokh, 10:48 AM]
God save us from priests like this: From a Reuters story:

A New Mexico family is suing their local Catholic church over a funeral Mass in which they claim a priest said their relative was only a middling Catholic and going straight to hell. . . . .

Court papers filed last month say that Rev. Scott Mansfield said at Martinez's funeral last year that the deceased was "living in sin," "lukewarm in his faith" and that "the Lord vomited people like Ben out of his mouth to hell." . . .

The complaint also said that as Mansfield walked to the grave, he laced his comments about Martinez -- a former town councilman -- with profanities. . . .

If the allegations are true (and the church denies them: ""We deny the allegations and Father Mansfield denies the plaintiff's allegations"), then this is just awful behavior. Perhaps the priest felt he had a good theological reason for what he was doing. But under common standards of decency, this is just awful, and I think the rest of us are perfectly entitled to judge this man under the standards that we think are right.

     On the other hand, the response -- a lawsuit by "Nine members of the Martinez family . . . seeking punitive and compensatory damages for severe emotional and physical suffering" is also inapt. The priest had a First Amendment right to say what he said; the only argument I can see for the family is that he implicitly promised to give a normal eulogy, and breached that contract, but I don't think that's right: While most people expect a priest to say relatively nice things about the deceased, I think they understand (or at least should understand) that the priest isn't working for them, but reserves the right to express his own views, religious or secular -- even when those views are hideous. Nor would there be a good slander claim; the assertions seem like constitutionally protected opinion, not false statements of fact.

     The case seems especially weak as to this particular part of the allegations:

One of the plaintiffs said the townspeople "are staring at her, thinking her father is in hell," their lawyers said.

Sorry, but you can't recover damages because people think that your loved ones are in hell -- if you could (and remember that people can think your loved ones are in hell based on a wide range of speech, not just a funeral speech), then that would be the end of freedom of religion.

     By the way, I say the word for this anti-eulogy is dyslogy. Thanks to reader Doug Sundseth for the pointer.

UPDATE: Some readers suggested that the plaintiffs may in have a good claim under the "intentional infliction of emotional distress" tort. My point is that I believe the First Amendment should preclude the application of this tort in this situation -- not an open-and-shut position as a matter of current First Amendment law, but I believe that it's the likely result, and the correct result. Calling speech about political and religious matters a tort shouldn't, I think, strip it of First Amendment protection.

 
[Eugene Volokh, 10:38 AM]
Lawrence v. Texas and a sexual autonomy right: Some people -- including, in some measure, Justice Scalia in his dissent -- have argued that Lawrence v. Texas doesn't really recognize sexual autonomy as a fundamental right, and that restrictions on sexual behavior are still permissible simply if they have a rational basis.

     I don't think that's right. It's true that Lawrence is largely silent on the proper test for determining which interferences with sexual behavior are permissible. But the logic of the Lawrence argument suggests to me that sexual autonomy will eventually be treated like the right to rear one's children, the right to have children, the right to have an abortion, and so on. These rights are bounded by the decisions that recognize them (e.g., the abortion right only applies pre-viability or when the mother's life or health is in danger, the sexual autonomy right doesn't apply to prostitution, etc.), some modest burdens on the rights are permitted, and in some cases of extraordinary need even the core of the right may in theory be restricted. But the test is much more demanding than just a rational basis.

     I say this largely because of the cases that the Court cites as the historical roots of this case -- the parental rights cases, the contraceptive cases, or the abortion rights cases. These cases either explicitly use a pretty demanding test for whether a restriction is constitutional (strict scrutiny or the undue burden test) or call the test a "rational basis" test but really apply scrutiny that is much more demanding than a traditional "rational basis" test yields. Recall that the "rational basis" test is applicable to virtually all restrictions on liberty, e.g., restrictions on how you run your business, restrictions on what drugs you use, and so on. Virtually all such restrictions tested under the rational basis test are indeed upheld, because it allows a vast range of permissible interests, and generally upholds laws even when their factual basis is highly questionable, even when the laws are overinclusive or underinclusive, and even when there are many less restrictive alternatives that may still accomplish the law's goal. That's not the test used in the cases that Lawrence cites.

     Moreover, under the traditional rational basis test, the law in Lawrence would be upheld as applied, simply as a public health measure: A ban on homosexual anal sex would be rationally related to the eminently legitimate interest in preventing sexually transmitted diseases. There is at least credible evidence (that's all the rational basis test requires) that such sex is more dangerous than other forms of sex. That the law is potentially overinclusive in that it also applies to oral sex (including oral sex among lesbians, which as I understand it is really quite safe) and to sex using condoms is irrelevant, since such overinclusiveness is generally not unconstitutional under the rational basis test (and at most it would require the law to be struck down as to oral sex). That the law is potentially underinclusive in that it excludes unprotected heterosexual genital sex is also generally not unconstitutional under the rational basis test (especially since a legislature might reasonably conclude that such sex is, under current facts, less dangerous per incident than homosexual anal sex). And the existence of less restrictive alternatives -- such as a condom requirement -- would also not invalidate the law under the rational basis test (in part because such alternatives may themselves be not as effective as a total ban, partly because condoms aren't perfect and partly because such a law would be even harder to enforce than a total ban). Finally, the fact that preventing disease may not have been the actual purpose of the law is generally irrelevant under the rational basis test; it's enough for the law to be rationally related

     So the Court upheld a law even though it would have passed muster under the rational basis test. Moreover, as you can tell from this description of the rational basis test, rights that are subject to protection only under a rational basis test aren't really meaningfully "rights" at all. You can say "You have the constitutional right to ingest anything into your body that you like, unless the government has a rational basis for restricting that," but it doesn't mean much, since under the rational basis test the government can impose pretty much whatever restrictions it pleases. In reality, you don't actually have such a constitutional right. And that's even true if the test were a so-called "rational basis with teeth" or "active rational basis" test, which the Court has at times used in some Equal Protection Clause cases (e.g., City of Cleburne v. Cleburne Living Center, Romer v. Evans): A right subject to even "active rational basis test" scrutiny isn't even a right, because the government would be free to pretty much abolish it almost at will.

     Thus, when the Court says that laws restricting sexual conduct "seek to control a personal relationship that, whether or not entitled to formal recognition in the law, is within the liberty of persons to choose without being punished as criminals," I don't think it means "within the liberty of persons to choose without being punished, unless the government has a rational basis to punish them." When the Court says that "[petitioners'] right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government. It is a promise of the Constitution that there is a realm of personal liberty which the government may not enter," it doesn't mean that they lack the "full right," and "the government may . . . enter" that "realm of personal liberty" whenever it has a rational basis for doing so. And when the Court goes on to say that "The Texas statute furthers no legitimate state interest which can justify its intrusion into the personal and private life of the individual," I don't think the reference to "legitimate state interest" means that any rational relationship to a legitimate state interest is enough to restrict the "full right." Rather, only "legitimate state interests" that are strong enough to "justify . . . intrusion into the personal and private life of the individual" would suffice.

     Again, I realize that the opinion is not explicit on the test that it would apply, and one could make an argument contrary to the one I'm making. My claim is basically a prediction about how the Supreme Court and lower courts will interpret this sexual autonomy right in the future, and like all predictions (especially those based on rather imprecise language) it may be mistaken. Still, I think that it's the better bet, and that the Court -- or at least these particular Justices -- won't soon take away what they gave by just saying "Oh, of course this full right to engage in their conduct is restrictable, so long as there's a rational basis for the restriction (unlike with the abortion right, parental rights, free speech rights, etc., where much more than a rational basis is required)."

 
[Eugene Volokh, 10:02 AM]
More on strict liability and constitutional rights: Just ran across Jackson v. A Woman's Choice, 130 N.C. App. 590 (1998), where the parents of a minor who got an abortion using forged parental consent papers sued the abortion provider, claiming that the providers were strictly liable. The court held that such strict liability wasn't authorized by the state parental consent statute, but also said that if strict liability were authorized, this would raise serious constitutional problems.

     This supports -- though, I agree, far from definitively -- my theory that strict liability in statutory rape cases may now be unconstitutional (at least when the defendant's claim is that he reasonably thought the girl was 18 or older). Consider three scenarios:

1. A movie producer hires an actress and asks her to perform in a sexually themed scene. He checks her driver's license; it says she's 18. It turns out, though, that the license was fake (and not obviously so). I don't think that he could be constitutionally punishable under a strict liability theory; New York v. Ferber held that such strict liability would be unconstitutional as to distributors, and I take it that the same would apply for producers.



2. An abortion provider is asked to perform an abortion on a young woman. He checks her driver's license; it says she's old enough to have an abortion with no need for parental consent or judicial bypass. (The Court has said that underage girls do have a constitutional right to get an abortion, but not without parental consent or a judicial bypass procedure.) It turns out, though, that the license was fake (and not obviously so). I likewise think he couldn't be constitutionally punishable on a strict liability theory; the Jackson case suggests as much (since a reasonable mistake of age seems on par with a reasonable mistake as to parental consent). And the standard arguments against strict liability in cases touching on constitutional rights -- see my original post, and note the Colautti abortion rights case cited there, which deals with a related though not identical issue -- applies here: If doctors could be held liable for such mistakes, then this would burden the constitutional rights of women who really are old enough to get an abortion with no need for parental consent or judicial bypass.



3. A man and a young woman decide to have sex. He checks her driver's license; it says she's 18. It turns out, though, that the license was fake (and not obviously so). I again think he couldn't be constitutionally punishable on a strict liability theory.

 
[Eugene Volokh, 9:39 AM]
ClearType: Reader Steve Sullivan suggested that I turn this on -- by right-clicking on the desktop, and then clicking on Properties / Appearance / Effects / Smooth Edges / ClearType -- and I tried it on my Windows XP office system, which has a large flat screen monitor (though not yet on my laptop).

     The result looks really nice, much more pleasant than the default setting. I'm sure it's not for everyone, but I suggest you check it out. Note from Steve Sullivan: "It makes text far more readable if you have a 17" or better monitor, and it's indispensable for laptops of any screen size. If you've got a small CRT it may only make text look fuzzier, though."

 
[Eugene Volokh, 9:34 AM]
Cheney's "reconstituted nuclear weapons" quote plays a prominent role in an NPR story from this morning. "Cheney stated flatly that Iraq had not just a nuclear weapons program, but the weapons themselves," Mara Liasson says, near the start of the story. Not a word about the fact that four times in the same program -- including in the exchange immediately before the one that was quoted -- Cheney said that Saddam was just trying to get or make nuclear programs. Not a word about the fact that "reconstituted nuclear weapons" was apparently nearly never used as a separate phrase before Cheney's speech -- it's nuclear weapons programs that are said to be reconstituted, not nuclear weapons themselves.

     Not a word, then, about the possibility -- I would say the very strong probability -- that, given all this, Cheney simply misspoke, something that people often do in the middle of a long unscripted exchange. Not a word about the fact that one the Washington Post articles that mentioned this explicitly said that "aides later said Cheney was referring to Saddam Hussein's nuclear programs, not weapons" (presumably, if Liasson had checked with Cheney's office, his aides would have again made that point). Thanks to reader Elizabeth Curwen for the pointer.

 
[Eugene Volokh, 5:54 PM]
Unnatural: I was just talking to my mother on the phone, and the connection wasn't great, so it was hard to hear. I was telling her something about "Metro Mortgage." "Natural Mortgage?," she asked, having misheard. "No, Metro Mortgage." "Oh, that's good," she says, "because there's nothing natural about mortgages." Well put, though that doesn't mean I'd throw people in jail for doing them.

 
[Eugene Volokh, 5:48 PM]
Schools forgetting the boundaries of their authority: According to this Newsday story,

School administrators in Washington Heights forced several eighth-graders to be tested for pregnancy and sexually transmitted diseases after they attended a "hooky party" last spring, the New York Civil Liberties Union charged in a federal lawsuit filed Tuesday. . .

The civil liberties union is representing two of approximately 11 girls who cut school on April 11 and attended a "hooky party" where there reportedly was sexual activity, [Donna Lieberman, executive director of the NYCLU] said.

"The next school day when they went back to school they were summoned to the principal's office and effectively suspended," Lieberman said.

She said the girls were told they had to be tested for pregnancy, HIV and other sexually transmitted diseases and could not return to school without a doctor's note that included the test results. . . .

The NYCLU is complaining that this interfered with the students' privacy, and there's probably something to that -- but I think the really outrageous thing (if, of course, the allegations are factually accurate) is that making such decisions should be the parents' call (or, if the parents aren't in the picture, the lawful guardian's), not the school administrators'. If you think your child is at risk for pregnancy or sexually transmitted disease, you may have her or him tested; but schools shouldn't be in that business, whether or not the pregnancy or disease might have happened while the kids were playing hooky from school. (The analysis would be different as to nonsexually transmitted diseases, where schools may have a much stronger concern about transmission at school.)

     Curiously, the word "parent" does not appear at all in the Newsday article. (Thanks to reader Nicholas Blesch for the pointer.)

 
[Eugene Volokh, 4:38 PM]
Court order: This is apparently entirely legit; see here for a PDF copy of the printed document.

IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF WISCONSIN

HYPERPHRASE TECHNOLOGIES, LLC
and HYPERPHRASE INC.,
ORDER
Plaintiffs,
02-C-647-C
v.
MICROSOFT CORPORATION,
Defendant.


Pursuant to the modified scheduling order, the parties in this case had until June 25, 2003 to file summary judgment motions. Any electronic document may be e-filed until midnight on the due date. In a scandalous affront to this court’s deadlines, Microsoft did not file its summary judgment motion until 12:04:27 a.m. on June 26, 2003, with some supporting documents trickling in as late as 1:11:15 a.m. I don’t know this personally because I was home sleeping, but that’s what the court’s computer docketing system says, so I’ll accept it as true.

Microsoft’s insouciance so flustered Hyperphrase that nine of its attorneys, namely Mark A. Cameli, Lynn M. Stathas, Andrew W. Earlandson, Raymond P. Niro, Paul K. Vickrey, Raymond P. Niro, Jr., Robert Greenspoon, Matthew G. McAndrews, and William W. Flachsbart, promptly filed a motion to strike the summary judgment motion as untimely. Counsel used bolded italics to make their point, a clear sign of grievous iniquity by one’s foe. True, this court did enter an order on June 20, 2003 ordering the parties not to flyspeck each other, but how could such an order apply to a motion filed almost five minutes late? Microsoft’s temerity was nothing short of a frontal assault on the precept of punctuality so cherished by and vital to this court.

Wounded though this court may be by Microsoft’s four minute and twenty-seven second dereliction of duty, it will transcend the affront and forgive the tardiness. Indeed, to demonstrate the even-handedness of its magnanimity, the court will allow Hyperphrase on some future occasion in this case to e-file a motion four minutes and thirty seconds late, with supporting documents to follow up seventy-two minutes later.

Having spent more than that amount of time on Hyperphrase’s motion, it is now time to move on to the other Gordian problems confronting this court. Plaintiff’s motion to strike is denied.

Entered this 1st day of July, 2003.

BY THE COURT:

STEPHEN L. CROCKER
Magistrate Judge

 
[Eugene Volokh, 2:14 PM]
Kipling's The Bisara of Pooree: This is one of my favorite short stories; I just reread it, and thought I'd pass along the link. (A short story of mine on a similar theme is being published in the September/October issue of Legal Affairs; The Bisara of Pooree was part of the inspiration for it. I would give a lot to be able to write as well as Kipling, poetry or prose.)

 
[Eugene Volokh, 1:51 PM]
The elements, as featured in comic books: Pretty cool; thanks to Eve Tushnet for the pointer.

 
[Eugene Volokh, 12:47 PM]
Taxes as the price of civilization: A reader asked me about Justice Holmes's line that taxes are the price of civilization; he suspected that the quote -- usually used to suggest that taxation is fair because it buys us vital protections -- might have been taken out of context.

     It turns out that Holmes did basically mean what he has been said to mean; the quote is from Compania General de Tabacos de Filipinas v. Collector of Internal Revenue (1927), where Holmes argued that was fair for the Philippine government to tax certain transactions that were entered into by a Philippine company but that took place outside the Philippines. The full quote, in fact, is "Taxes are what we pay for civilized society, including the chance to insure." (Holmes also apparently said similar things in conversation.)

     The interesting question, I think, is what the aggregate tax burden (federal, state, local, and territorial) was in 1927. My guess is that it was a lot less than the 27% that it is today. (I'm speaking here of the effective tax burden, which is basically revenues / gross domestic product, not the top marginal rates, which strike me as less telling.) If Holmes were alive today, would he think that civilization was gouging?

UPDATE: Here's the answer.

 
[Eugene Volokh, 12:16 PM]
Statutory rape and strict liability: Reader David Pittelli writes:

While it's unreasonable to expect a bookseller to read all of his many books, it's not unreasonable to expect Lotharios in the habit of picking up girls of about age 18 to card them or otherwise determine their ages, because no one can seduce girls in the numbers that make such an act impractical. (The time needed to card someone is insignificant compared to the time spent on the rest of the seduction, even if one is seducing 3 women a day, whereas the time needed to read a 300-page book, or even thumb through a magazine, can be greater than the time between sales of such items.) That said, I hope that a jury would not convict the seducer if he could convince them that she both looked of age and had a valid-looking fake ID, precisely because it is much harder to "prove" age beyond the certainty provided by a driver's license.

This argument is sensible, but it counsels in favor of negligence liability -- i.e., the man is guilty if he knew or reasonably should have known the girl was underage (that's the "it's not unreasonable to expect . . . to card them" point) -- rather than strict liability -- i.e., the man is guilty even if he acted perfectly reasonably. After all, under strict liability, the man can go to prison (assuming the jury follows the instructions, rather than nullifying, as my correspondent hopes they would do) even if he carded the girl and did everything that "was not unreasonable to expect." That's the nature of strict liability.

     Incidentally, that's likely the rule for child pornography cases, which I mentioned in my original posts. It's not unreasonable to expect producers of sexually themed movies (or even non-sexually-themed movies that have even an isolated sex scene) to card the actresses that he employs; and by law, producers are actually required to do so, and to make those records available. But if they card them but it turns out the ID was false (and not obviously so), then they're not liable. The same logic, I think, would now apply (after Lawrence) to statutory rape.

 
[Eugene Volokh, 11:33 AM]
Welsh rabbit: Though I'm a staunch descriptivist in linguistic matters, I can still bemoan some changes in the language -- I just don't call them "wrong," once they happen. One of the losses that I regret is "Welsh rabbit," which my Random House defines as "a dish of melted cheese, usually mixed with ale or beer, milk and spices, served over toast" (I prefer English muffins). These days, when you say that, you'll often be corrected by a helpful soul who says "Oh, I think you mean Welsh rarebit."

     Actually, "Welsh rabbit" apparently came first (my Random House says so, as does Merriam-Webster's online). As the Word Detective says (and I've heard it elsewhere), the jocular implication was "that the Welsh could not obtain or afford real rabbit and had to make do with this cheesy substitute." Compare Dutch treat and similar ethnic digs.

     Over time, "Welsh rarebit" arose as a synonym, and then people forgot the joke and assumed that "Welsh rabbit" must be a corruption of "Welsh rarebit" rather than "rarebit" being a version of "rabbit." (I've seen one seemingly reputable source claiming this, but the majority that I've checked support the theory outlined above.) So "Welsh rabbit" is now largely lost, except to those of us who are willing to be thought ignorant by those who really are ignorant of the original usage.

     The decline of "Welsh rabbit" is understandable. The chief purpose of language is to communicate effectively, not to provide entertainment to the cognoscenti. People see "Welsh rabbit" on the menu, expect rabbit, get something else, and are disappointed. Who wants that? So maybe "Welsh rabbit" deserved to die, but I mourn its death nonetheless.

 
[Eugene Volokh, 8:02 AM]
Lawrence v. Texas and statutory rape: So here's a legal twist caused by Lawrence that I haven't seen people talking about. Warning: This is pretty legalistic reasoning, which many people may -- rightly or wrongly -- consider casuistic to the point of silliness. Still, I think that this is plausible legalistic reasoning, given the rules of our legal system:

1. Many state statutory rape laws are "strict liability" offenses: A man can be criminally punished for having sex with a girl under the age of consent (for the sake of convenience, I'll stick with man/girl situation, though others may arise, too) even if he had no way of knowing that the girl was underage. He could check her driver's license, and see that it shows her to be of age, and he could still in theory be prosecuted if it turned out that it was a fake id. The remainder of this post will thus focus solely on "strict liability" for statutory rape -- punishing someone who acted perfectly reasonably, and was reasonably mistaken about the girl's age. Nothing here would preclude punishing someone who knew, or who even reasonably should have known, how old the girl was.



2. I generally think that such strict liability criminal statutes -- which don't require knowledge, recklessness, or even negligence -- are unfair; people shouldn't be sent to prison based on such a reasonable mistake of fact. (I set aside for now mistakes of law, which raise subtly different questions; I likewise set aside civil litigation, where I think strict liability is sometimes permissible.) Generally, the government can punish the blameworthy by focusing on those who knew the facts, were reckless about the facts, or were at least negligent (which is to say that a reasonable person would have realized what the facts were). Strict liability may provide an extra measure of deterrence, but only at a substantial risk of unfairness. However, the Supreme Court has generally held that such strict liability statutes are not unconstitutional.



3. There is, however, a set of circumstances where such strict liability criminal statutes are unconstitutional: The Court has held, in a wide variety of cases -- at least libel, obscenity, and child pornography -- that strict liability is impermissible where criminal punishments for speech are involved. Even if the law on its face punishes constitutionally unprotected speech (e.g., child pornography), it may not hold people strictly liable for mistakes of fact (e.g., "I reasonably believed that the woman in the pornographic movie was 18, even though it turns out she was fooling us"). Here's the reasoning from Smith v. California, which barred strict criminal liability in obscenity cases, though the same principle was ultimately adopted in other cases, including child pornography:

   We have held that obscene speech and writings are not protected by the constitutional guarantees of freedom of speech and the press. The ordinance here in question, to be sure, only imposes criminal sanctions on a bookseller if in fact there is to be found in his shop an obscene book. But our holding [that obscenity laws are constitutional] does not recognize any state power to restrict the dissemination of books which are not obscene; and we think this ordinance's strict liability feature would tend seriously to have that effect, by penalizing booksellers, even though they had not the slightest notice of the character of the books they sold.
   
   The appellee and the court below analogize this strict-liability penal ordinance to familiar forms of penal statutes which dispense with any element of knowledge on the part of the person charged, food and drug legislation being a principal example. We find the analogy instructive in our examination of the question before us. The usual rationale for such statutes is that the public interest in the purity of its food is so great as to warrant the imposition of the highest standard of care on distributors -- in fact an absolute standard which will not hear the distributor's plea as to the amount of care he has used. His ignorance of the character of the food is irrelevant.
   
   There is no specific constitutional inhibition against making the distributors of good the strictest censors of their merchandise, but the constitutional guarantees of the freedom of speech and of press stand in the way of imposing a similar requirement on the bookseller. By dispensing with any requirement of knowledge of the contents of the book on the part of the seller, the ordinance tends to impose a severe limitation on the public's access to constitutionally protected matter. For if the bookseller is criminally liable without knowledge of the contents, and the ordinance fulfills its purpose, he will tend to restrict the books he sells to those he has inspected; and thus the State will have imposed a restriction upon the distribution of constitutionally protected as well as obscene literature. It has been well observed of a statute construed as dispensing with any requirement of scienter [i.e., one that allows punishment for reasonable mistakes of fact, and possibly even one that allows punishment for unreasonable but honest mistakes of fact] that: 'Every bookseller would be placed under an obligation to make himself aware of the contents of every book in his shop. It would be altogether unreasonable to demand so near an approach to omniscience.' And the bookseller's burden would become the public's burden, for by restricting him the public's access to reading matter would be restricted. If the contents of bookshops and periodical stands were restricted to material of which their proprietors had made an inspection, they might be depleted indeed. The bookseller's limitation in the amount of reading material with which he could familiarize himself, and his timidity in the face of his absolute criminal liability, thus would tend to restrict the public's access to forms of the printed word which the State could not constitutionally suppress directly. The bookseller's self-censorship, compelled by the State, would be a censorship affecting the whole public, hardly less virulent for being privately administ red. Through it, the distribution of all books, both obscene and not obscene, would be impeded.

   Moreover, the Court has more or less adopted this principle (though in a somewhat different context) for at least one other constitutional right -- the right to get (and the corresponding right to perform) an abortion. See Colautti v. Franklin, 439 U.S. 379 (1979).



4. Under Lawrence, there now is a constitutional right to have consensual sex with an 18-year-old -- just as there is a right to have a consenting 18-year-old perform in one's adult film. There is no constitutional right to have consensual sex with a 17-year-old, just as there is no right to have a consenting 17-year-old perform in one's adult film. But, under the theory of the First Amendment strict liability cases, it seems to me that it would be unconstitutional to impose strict liability for having sex with 17-year-olds, because of the danger that it will deter people from having sex with 18-year-olds. (See New York v. Ferber (1982).) Let's lay this out graphically:

   Child pornography constitutionally unprotected: People who make, distribute, and possess movies that contain minors in sexual situations may be punished.New York v. Ferber.	Other speech constitutionally protected: If the actors and actresses are 18 or older, the movie is protected (unless it fits within the obscenity exception).	Result: It's unconstitutional to hold people strictly liable for reasonable mistakes of fact about the actors' or actresses' ages -- "I reasonably thought she was 18" is a good defense. Ferber.
   Sex with minors constitutionally unprotected.	Sex with consenting adults protected. Lawrence v. Texas.	Therefore: It's unconstitutional to hold people strictly liable for reasonable mistakes of fact about their partners' ages -- "I reasonably thought she wsa 18" must be a good defense.




5. What are the possible distinctions here? One is that there's no right, under Lawrence, to have sex with minors -- but for reasons I mention, that doesn't distinguish the free speech cases, which likewise bar strict liability even for constitutionally unprotected behavior, because such liability may deter protected behavior.
   
        A second distinction -- that preventing statutory rape is just very important -- also fails. Preventing child pornography involving minors is also very important, but the Court has held that the government must fight that by punishing knowing, reckless, or possibly negligent use of minors; the government may not serve even this very important interest by punishing people who reasonably believed that the person was 18.
   
        Another is a factual distinction: In practice, one might say, very few people will be deterred from having sex with 18-year-old girls because they fear that she might be 17. But why? One might argue that it's because sex is such a powerful force; but so is the desire to make money from selling obscenity or child pornography, for those who are in that business. One might also point out that because statutory rape laws are notoriously underenforced, few people will be much deterred by them; and maybe that's enough. But that might be a hard theory for a court to accept -- a strict liability statutory rape law is constitutional only because everyone knows that it actually wouldn't be enforced much. (And note that one of the main arguments for statutory rape laws is precisely that they are aimed at protecting minors by deterring adults from having sex with them.)
   
        There might be another theory -- Lawrence repeatedly talks about the importance of sex to creating meaningful relationships. Maybe this means that casual sex between relative strangers doesn't really deserve constitutional protection; it's protected in practice, because it's so hard to draw distinctions between meaningless sex and meaningful sex, but courts shouldn't go out of their way to protect it. And, the theory would go, generally people who don't know how old their sexual partner is don't have a really close relationship to that partner. Thus, strict liability for statutory rape wouldn't really deter meaningful relationships, only casual pick-ups. I don't think courts are likely to buy this, though, because strict liability would end up punishing even meaningful relationships (some girls might consistently lie about their age, even to a serious lover), and because I think courts will be reluctant to generalize about which relationships are likely to be meaningful and which aren't.



6. One possible limitation: As I read Limon, it holds that sex with adults is constitutionally protected, but sex with minors -- presumably, those under 18 -- is not. One might therefore argue that, in states where the age of consent is under 18 (e.g., 16), reasonable mistake about whether the girl was 18 may not lead to criminal punishment, but reasonable mistake about whether she was 16 may lead to criminal punishment. After all, punishing people when they reasonably but erroneously believe the girl is 18 would deter constitutionally protected conduct (sex with 18-year-olds); but punishing people when they reasonably but erroneously believe she is 16 would deter conduct that's constitutionally unprotected under Lawrence, though it's statutorily legal (because the age of consent, by hypothesis, is 16).



7. Note that this is not the issue involved in the Limon case, which the Court remanded for further proceedings in the lower courts; that case involves the separate question whether states could have different statutory rape rules for homosexual sex as opposed to heterosexual sex.

In any case, that's my thinking on the matter. Note that this is basically a prediction about the kinds of arguments that can be made, and that courts might buy. I am not taking a stand on what the right constitutional rule should be (except that I stick by my point 2, which is that it's unfair [though not necessarily unconstitutional] to have strict criminal liability, which may send people to prison even though, based on the facts as they reasonably assumed them to be, their conduct reasonably seemed to them to be perfectly lawful).

 
[Eugene Volokh, 6:31 AM]
Still more on gay marriage: New Jersey Assemblyman Michael Carroll e-mails, responding to my posts on gay marriage:

I confess that I share the view that marriage is primarily about natural children, but I further confess that I don't believe that marriage, as an institution, would be irreparably harmed if it were extended to any couple wishing to participate.

But I wonder: in my lofty position, I receive correspondence on this subject fairly often and, on occasion, even some which is civil. The (honest) advocates of gay marriage are relatively straightforward in their intentions: they want it, first, as a symbol, that their relationships are the same as heterosexual unions. And, second, for the money. Being married, at times, carries with it substantial financial benefits. Most of these, as you know, can be obtained through some planning, but advocates argue that if heterosexual couples need not take that extra planning step, gays should not have to do so either.

I submit, though, that the burden lies with those who support extension of the institution to demonstrate some societal benefit. As you note in your most recent post, the pair bond is "optimal" for raising natural children. Society recognizes that by extending the benefits of marriage. (Too, I think if one analyzes the matter, one can see that marriage also benefits women, who, having devoted a considerable period of time to bearing and raising children, often at the expense of many economic activities, enjoy some security that their mate will not (easily) swap them for a newer model)

What benefits do gay relationships offer society? By way of example, if my "relationship" with my Aunt falls apart, that's a tragedy, for me, but a matter of the utmost irrelevance to society. Ditto gay unions. If they break up, the societal impact is . . .?

Marriages -- at least, those with kids -- are different. Society SHOULD encourage the "optimal" relationship and if some folks, who can't or won't have kids, benefit as free riders, is that not a reasonable administrative penalty? The state peers up one's skirts, figuratively, for a quick check of the equipment, to ensure a presumptive ability to breed. But it requires no gynecological or urologic exam, doesn't ask about "love", etc. It simply looks at the -- two -- folks and assesses whether it's presumptive possible to have kids.

The deeper questions -- accidental/essential infertility, etc. -- seem rather beside the point. If the state can eyeball a couple and KNOW for certainty that it will NEVER receive the benefits attendant to the optimal child rearing arrangement, what benefit does it receive from blessing the union? That some free riders board the train seems little justification for throwing the doors open to all.

I think these are interesting points, and presented in a refreshingly clearheaded, blunt, and concrete way. A few responses:

1. I think there's another motivation for at least some homosexuals who want to marry, beyond just the desires for symbolic equality, and the desires for the tangible benefits that heterosexual married couples get: Homosexual couples do often have children, whether adopted children, children from past marriages, or children conceived with a sperm donor or a surrogate mother. I realize that some people argue that gays shouldn't be allowed to adopt, or shouldn't be allowed to keep custody of their natural children, because it's bad for children to be raised by homosexual parents. I don't agree with this argument, partly because I'm not sure that it's bad for children to be raised with homosexual parents (though I haven't done any reading on this, and may well be mistaken), and partly because the question is "compared to what?" Even if it's better for a child to be raised by heterosexual parents than by homosexual parents, it may still be better for him to be raised by homosexual parents than being in an orphanage or a foster home (which often, though not always, is the alternative). And while I think that the best interests of the child are important, I think that parental rights are, too, and I would be hesitant to deny parents such rights unless there's a pretty strong case that such a denial is in the child's best interests.
   
        If there's going to be homosexual child-rearing -- e.g., consider a mother who had children in a heterosexual marriage, is divorced, has custody of the children, and has a lesbian lover (and note that in many such situations, the father might not even want to claim custody instead) -- it seems to me much better that the couple be married than unmarried, for much the same reasons that it's better for heterosexual child-rearing to be done by a married couple. Even if you think that's the second-best scenario, the first-best being child-rearing by a heterosexual married couple, it may still be better than the likely alternative, which is less stability among the child-rearers.



2. So I think that providing for better child-rearing environments is one advantage of allowing committed couples, whether male-female or not, to marry. I also think that marriage would at least in some measure diminish sexual promiscuity, which helps decrease the rate of sexually transmitted diseases.



3. But, finally, I want to return to a more basic point: Homosexual marriages offer advantages to society because they offer advantages to the homosexual married couples, who are part of society.
   
        And these advantages are the same as those that I raised in my original post on this, which talked about the 70-year-old married couple, but might also apply to other married couples who might be infertile (e.g., because one or the other partner has had to have certain kinds of surgery).
   
        I agree that, even if marriage were just about providing an optimal environment for child-rearing, the state might still choose not to engage in intrusive inquiries about who's capable and who isn't, beyond just checking the partners' sex. But if that were the only reason for not excluding 70-year-olds, we would at least expect private individuals -- the couple's friends and acquaintances -- to condemn the marriage as somehow improper. That's what we find, for instance, when people marry for money; it's legal, but socially frowned upon.
   
        And yet people smile, not frown, when they hear about two 70-year-olds getting married. Why? I think it's because people realize that marriage isn't just about providing an optimal environment for child-rearing -- it's also about providing a good environment for love and commitment. And that, it seems to me, is just as applicable to homosexual love as to heterosexual.

In any case, that's my tentative thinking on the matter; and many thanks to Assemblyman Carroll for passing along his thinking.

 
[Eugene Volokh, 12:35 AM]
Anti-Semitism in The Observer: I'm usually quite hesitant to accuse people of anti-Semitism, but it's hard to see how this column by Richard Ingrams can be explained as anything but that (emphasis added):

Amiel's animus

I have developed a habit when confronted by letters to the editor in support of the Israeli government to look at the signature to see if the writer has a Jewish name. If so, I tend not to read it.

Too few people in this modern world are prepared to declare an interest when it comes to this kind of thing. It would be enormously helpful, for example, if those clerics and journalists who have been defending Canon Jeffrey John, the so-called gay bishop, were to tell us whether they themselves are gay. Some do, but more don't.

The issue arises partly because, in both cases, these people are often accusing the other side of being prejudiced and biased - we are either homophobes or anti-Semites.

The other day, for example, the Canadian journalist Barbara Amiel wrote a long denunciation of the BBC in the Daily Telegraph, accusing the Corporation of being anti-Israel in its Middle East coverage.

Many readers of the Daily Telegraph may have been impressed by her arguments, assuming her to be just another journalist or even, as she was recently described in another newspaper, an 'international-affairs commentator'.

They might have been less impressed if the paper had told them that Barbara Amiel is not only Jewish but that her husband's company, in which she has an interest, owns not only the Daily Telegraph but the Jerusalem Post .

In other words, when it comes to accusing people of bias on the Middle East, she is not ideally qualified for the role.

     Let me see: Has the writer "developed a habit" of "not . . . read[ing]" letters by men that relate to relations between the sexes? Or letters by women? Or does he ignore letters by blacks, whites, and Asians on race relations? Does he ignore letters on the subject of homosexuality by people whom he knows to be anti-gay, or whom he suspects of belonging to mostly anti-gay religious groups? After all, each must have their own axe to grind, so their positions are worthless, no?

     I highly doubt that he has such a demanding standard of objectivity, in which he doesn't just in some measure discount people's views based on their conjectured biases, but actually ignores them altogether. I take it that in most such situations, he assumes that people might have something worthwhile to say despite their possible preconceptions (or, rather, despite his preconceptions about their preconceptions).

     Jews, though, are somehow different. They apparently have nothing interesting or valuable to say about Israel. Their opinions -- not just their bare factual statements, taken on a "trust me" basis, but apparently even their arguments that can logically be evaluated on their face, with no reference to who's making the argument -- are useless.

     So Jews' statements are seen as worthless in the same context that the statements of other groups would be presumably worthwhile. How cruel and unfair it is that people accuse him of being "prejudiced," "biased," and an "anti-Semite[]."

     Thanks to reader George Vardalos for the pointer, which I would never have followed if I thought the article was about Cyprus.

 
[Eugene Volokh, 12:07 AM]
Criticizing Islam: Last week, I blogged the following (links are in the original post):

The Council on American Islamic Relations posts on its site this excerpt from a Newsday story:

A national Muslim organization demanded an apology Wednesday from a Flushing Buddhist priest who allegedly made disparaging remarks about Islam that were posted on the Internet.

Ghazi Khankan, executive director of the Council on American Islamic Relations-New York, said the Rev. Jisei Nagasaka made disparaging statements, including "Islam is a false religion." His comments came after another Buddhist priest made similar statements, including Allah "is a figment of the imagination."

"I was surprised because I know Buddhists are peaceful people," he said. "Why attack others? It didn't make sense to me."

After a news conference in front of the Buddhist temple - Nichiren Shoshu - on Beech Avenue in Flushing, Khankan and other Muslim leaders delivered a petition containing 388 signatures to a temple official.

The petition called on Nagasaka, the Flushing temple's chief priest, to apologize for his remarks, which were made to an audience and later posted on the temple's Web site, Khankan said.

While the statements in question were promptly removed from the Web site after letters and phone calls from Muslims, the council said Nagasaka's comments can only be rectified with better understanding and an apology...

Now naturally Muslims won't agree with the Buddhist priest's view that "Islam is a false religion" -- just like the Buddhist doesn't agree with the Muslims' view that Islam is the true religion. And Muslims don't agree that "Allah 'is a figment of the imagination,'" just like people of other religions (for instance, Hindus) don't agree that "There is no God but Allah."

But one aspect of religious freedom is the freedom to express that you think other religions are mistaken. What, did Muslims think that Buddhists thought Allah was real, and Islam was a true religion? If the Buddhists did think that, they'd be Muslims, not Buddhists. Of course they think your religion is false -- and they're perfectly entitled to say so.

Perhaps some especially gentle or subtle folk would avoid such statements, and instead not publicly opine on whether they think Islam is a false religion -- or, for that matter, not publicly opine on whether there is no god but Allah. But people have no ethical obligation to refrain from such statements, which (at least looking at the quotes that CAIR posts on its own Web site) actually seem pretty calm and measured. (All criticisms, political or religious, may be made so harshly that they'd become rude -- but saying that you think other people's viewpoints are false, or that there is no God but your God, is a proper way to express an important point of view.)

Actually, it seems to me that CAIR's complaint can't really be about the Buddhist speakers' "attack[ing]" anyone, because they didn't attack anyone, or about the speakers being non-"peaceful," since they seemed to be expressing their views quite peacefully. Rather, their complaint appears to be about blasphemy, since that's the only offense that the speakers were committing. In America, though, this sort of blasphemy -- the civil disagreement with the beliefs of another faith -- is a treasured part of our religious freedom, not an offense which demands an apology.

A reader responds:

It is one thing to say, "My religion is the one true religion" or "All religions other than my own are false." If that were the gist of the statements at issue here, then I would agree with you. But if the Buddhist priest in the story is saying that only Islam is a false religion, it clearly implies a particular animus toward Muslims or Islam that is not directed at other non-Buddhist religions. It would not be on a par with direct statements by Pat Robertson, Jerry Falwell, Franklin Graham, Chuck Colson, or Ann Coulter, such as that Islam is a "evil and wicked religion," but it tends in that direction. It seems obtuse to say that CAIR's actions in this case contradict the idea of religious freedom, when a more plausible explanation is that they are opposing religious intolerance.

I also fail to see how any of this raises the constitutional issue of freedom of religion, since the government is not involved. I have the right to free speech, for example, and you can ask me to apologize for anything I say that offends you, and that request would have no bearing on whether my freedom of speech was being abridged. The same goes for both CAIR and the Buddhist temple in this case. This isn't about rights; it's about civility.

     The core of my disagreement with the reader, I think, is that I think that it's perfectly proper for people to argue that others are wrong on religious matters. It's not "intoleran[t]" or uncivil to say that someone's religion is wrong -- rather, it is indeed a treasured aspect of American religious freedom.

     Naturally, the other person may strenuously disagree with the speaker's views, and feel offended. But people have no ethical obligation to avoid such offense. If their view is that Islam, or Catholicism, or all religiosity is false -- that religion is the opium of the masses, or that Christ was not the son of God, or that Jews aren't The Chosen People, or that Allah doesn't exist, or that Muhammad was a bad person -- they are entitled to express that view. And they must, I think, be entitled to express this view if we are going to have a vibrant debate about religious truth. No-one is entitled (even if we're talking just about ethical entitlement, not legal entitlement) to have his religion's fundamental claims remain unchallenged.

     I do think that it tends to be wrong to call other religions evil, at least unless you have pretty solid proof of that. But that's true because of a confluence of reasons -- you don't have to call a religion evil to argue that it's wrong; calling a religion evil is generally seen as making a claim that most of its adherents are evil (as opposed to just mistaken in their theological beliefs), or are at least pushed towards evil by the religion, and this claim generally requires, as a matter of ethics and good manners, some serious justification; and most such claims that a religion is evil end up not meeting that burden of justification. These reasons may generally lead us to frown on claims that some religion is "wicked and evil," but they don't apply to many other claims.

     In particular, assertions about which religion is right (pretty important arguments, if we think that such questions matter to people's present and future lives) suggest error on articles of faith, not wickedness; and such assertions must at times state, explicitly or implicitly, that Islam is or is not a false religion, that Allah does or does not exist, that there is or is not a God other than Allah, and that Mohammed is or is not his prophet. And if Muslims are entitled to say that Allah exists (and no other Gods do), Buddhists are entitled to say that he doesn't.

     If you think theology doesn't matter, and that it doesn't much matter what people believe about theology so long as they act nicely towards others, then you might think that debate about whether Allah exists is unnecessary. But some people disagree, and think that the question of Allah's existence is of huge significance. They're entitled to express their views on the subject.

     Nor does it matter, I think, whether you're focusing on Allah alone, as opposed to other religions. Religious leaders often focus their expressions of disagreement on one or another religion, because they see it as particularly appealing to their flock, or because they see in it some errors that are particularly worth mentioning, or for a variety of other reasons. I assume that CAIR chose the harshest quotes that it could find from the Buddhist priests, rather than the mildest. And if all the Buddhists are saying is that they think Islam is a false religion, they're perfectly entitled to say it, whether or not they also want to similarly criticize Catholicism or Judaism.

     Finally, of course I'm not saying that CAIR's statements implicate the constitutional freedom of religion. CAIR was making an ethical argument, not a legal one. It wasn't referring to a physical "attack" or lack of "peaceful[ness]," which can draw a legal response under the American system; rather, it was saying that denying the truth of another's religion should be seen as unethical. I disagree: I think that denying the truth of another's religion is a fundamental and perfectly ethically legitimate part of theological debate.

     Such statements are entirely within the bounds of "tolerance" and "civility," and they need no apology. And I also think that those of us who think this way should stand up for those who are being called intolerant and uncivil, and who are being asked to apologize, and defend their ethical right to say what they are saying.

 
[Eugene Volokh, 3:02 PM]
The heart of the Nevada Governor's substantive argument against the Claremont federal lawsuit: Here it is; there are other parts to the motion, but these are the parts that challenge the Claremont argument on its substance. As I've mentioned before, I think the Nevada Supreme Court decision is a gross violation of the Nevada Constitution; but I tentatively agree with the Governor that it is not a violation of the U.S. Constitution:

C. Plaintiff’s should not prevail on the merits because the Nevada Supreme Court has final authority to interpret and enforce the Nevada Constitution.
At all times throughout the litigation of this matter, Governor Guinn requested only that the Nevada Supreme Court “order the Legislature to provide the funding for public education required by Article 11, Section 6 of the Nevada Constitution, and to submit the balanced budget required by Article 9, Section 2 of the Nevada Constitution.” Plaintiffs’ Memorandum in Support of Petition, etc., p. 3, l. 9 – p.4 l. 1-2. The Court independently determined a conflict existed in the various provisions of the Nevada Constitution, and ruled that the supermajority requirement of Nev. Const. Art. 4, Sec. 18(2) must “give way.” Guinn v. The Legislature, Id. at 16. This determination was beyond any relief sought by the Governor. However, the decision was within the Nevada Supreme Court’s sole authority to definitively interpret the Nevada Constitution. See People v. Cahill, 5 Cal. 4th 478, 545 (1993) and Utah County by County Bd. Of Equalization vs. Intermountain Health Care, Inc., 709 P.2d 265, 268 (Utah 1985).
It is Plaintiffs’ burden to show a strong likelihood of success on the merits. Michel v. Bare, 230 F. Supp. 1147 (D. Nev. 2002). Plaintiffs assert that the Nevada Assembly’s vote on S.B. 6 was inconsistent with the Nevada Constitution, citing only to Art. 4, Sec. 18(2) of that Constitution. Meanwhile, Plaintiffs intentionally avoid the Supreme Court’s Opinion interpreting the entire document (See Guinn v. The Legislature, Id.). While Defendants Guinn and Chinnock did not seek the invalidation of the supermajority requirement by the Nevada Supreme Court in Guinn v. The Legislature, it is settled law that the supreme court of any state is the authoritative interpreter of its constitution. See People v. Cahill, 5 Cal. 4th at 545 (1993) and Utah County by County Bd. Of Equalization vs. Intermountain Health Care, Inc., 709 P.2d at 268. In addition, the Rooker-Feldman doctrine recognizes that, with the exception of habeas corpus petitions, lower federal courts lack subject matter jurisdiction over challenges to state court judgments. District of Columbia Court of Appeals v. Feldman, 460 U.S. 462, 476 (1983); Rooker v. Fidelity Trust Co., 263 U.S. 413, 416, (1923).

1. Legislators’ Vote Dilution Claim.
The Nevada Supreme Court has authoritatively determined that the supermajority provisions of Nev. Const. Art. 4, Sec. 18(2) must give way to conflicting provisions providing for the substantive right under the same Constitution to public education, even if it is only by majority vote, under the deadlocked circumstances prevailing upon passage of S.B. 6. Guinn v. Legislature, Id. at 15.
Therefore, Plaintiffs’ argument that “under the provisions of the Nevada Constitution, the vote [of] a member of the State Assembly is 1/15 of the votes necessary to defeat a tax increase. Under the procedure employed by the Assembly…an assemblyman’s vote was only 1/21 of the votes necessary” (Plaintiffs’ Memorandum in Support of Petition, etc., p. 4, l. 28 – p. 5, l. 3, emphasis added) rests on a misapprehension as to the requirements of the Nevada Constitution, as interpreted by the State’s highest court. To succeed on the merits, Plaintiffs would have to succeed on the novel theory that the Nevada Supreme Court is not the final authority as to the meaning of the various provisions of the Nevada Constitution, contrary to well-established precedent. See People v. Cahill, 5 Cal. 4th at 545 (1993) and Utah County by County Bd. Of Equalization vs. Intermountain Health Care, Inc., 709 P.2d at 268. This position constitutes an extreme extension of existing law and cannot be said to be likely to succeed.

2. Voter Plaintiff’s Derivative Vote Dilution Claim
The Voter Plaintiffs admit that they rely on extension of a hypothetical example, “it could not be argued seriously that voters would not have an injury if their congressman was not permitted to vote at all.” Plaintiffs’ Memorandum in Support of Petition, etc., p. 5, l. 11-12, quoting Michael v. Anderson, 14 F.3d 623, 262 (D.C. Cir. 1994).
Once again, Plaintiffs erroneously assert that the Assembly failed to abide by a Nevada constitutional provision, purporting to substitute their reading of the Nevada Constitution for the definitive interpretation of the Nevada Supreme Court. Ironically, Plaintiffs point to elimination of the supermajority requirement as violating the “one man, one vote” standard, when the effect of so doing is to count each legislative vote equally.
In any case, it cannot be said that it is likely that this Court will find that the process has reached the point of patent and fraudulent unfairness, such that a violation of the due process clause should be found. See Reynolds v. Simms, 377 U.S. 533, 554 (1964).

3. Voter Plaintffs’ Effective Vote Claims
Plaintiffs persist in their collateral attack on the authority of the Nevada Supreme Court to interpret the Nevada constitution by asserting that “the State Assembly essentially treated the successful votes for the Gibbons Constitutional Tax Initiative as without any effect…” Plaintiffs’ Memorandum in Support of Petition, etc., p. 6, l. 12-13. By this logic, there would be a violation of the Equal Protection Clause any time that a state’s highest court found an amendment passed by initiative to be unconstitutional. For example, were an electoral majority to vote to bar male students from public education by amendment to a state’s constitution, it would clearly not be a violation of that majority’s “right to an effective vote” for a state supreme court to rule such amendment unconstitutional.
Plaintiffs have not in any way demonstrated any violation of federal voting rights, let alone demonstrated likelihood of success on this claim.

4. Plaintiffs’ Republican Guarantee Claim
Plaintiffs once again falsely claim that the State Assembly ignored the governing structure imposed upon it. Plaintiffs’ Memorandum in Support of Petition, etc., p. 8, l. 18-19. To the contrary, the Assembly was fulfilling the requirements enunciated by the Nevada Supreme Court. Plaintiffs concede that “claims based on the Republican Guarantee Clause have long been viewed as nonjusticiable political questions,” Id., p. 7, l. 6 – 8, and then argue that their complaint embodies the rare instance where this is not the case. This is only because Plaintiffs fail to acknowledge the authority of the Nevada Supreme Court to harmonize what it finds to be conflicting provisions of the Nevada Constitution. Plaintiffs’ own argument is replete with cases showing that they are unlikely to succeed on the merits. Id. p. 7, l. 20 - 24, p. 8, l. 2.

5. Taxpayer Plaintiffs’ Due Process Claims
Plaintiffs finally make the claim that when and if any tax pursuant to S.B. 6 is imposed, citizens and business will have their property taken without due process of law. It is inaccurately asserted that such tax or taxes will have been “adopted without compliance with constitutionally mandated process” Id. p. 9, l. 15 - 16. This assertion ignores the undisputed fact that the Nevada Assembly acted in compliance with the judicial mandate that the supermajority requirement of Nev. Const. Art. 4, Sec. 18(2) must “give way to the simple majority requirement of Article 4, Section 18(1) in order that the specific provisions concerning education are not defeated.” Guinn v. Legislature, at 14. Only the Nevada Supreme Court may authoritatively interpret the Nevada constitution, and once it has done so, neither Plaintiffs nor Defendants may disturb the rule of law and substitute their interpretation of the Constitution for that of the duly-elected and lawfully constituted Nevada Supreme Court. There has been no showing that Plaintiffs are likely to prevail in any contrary argument.

 
[Eugene Volokh, 11:58 AM]
More on a slippery slope to polygamous marriage: Reader Ted Nolan writes:

What about the argument that (as far as I am aware), homosexual marriage has not been recognized anywhere until recently while polygamy has thousands of years of history as a workable form of marriage?

In fact, polygamy is practised in many countries today, and I rather suspect that we have a constant trickle of immigrants who resent being told that their marraiges are not legal and that they have to undergo the emotional stress of telling one (or more) wives that only wife X is a "real" wife.

How can we reasonably say, well yes we have created a new kind of marraige, but yours is still right out? I don't think we can or should.

A plausible point. I still think that on balance homosexual marriage is worth allowing, partly because I don't think that recognition of polygamous marriage would be that awful, and partly because I think it's not terribly likely, despite my correspondent's point. But I don't think this argument -- which, I stress again, points to concrete mechanisms, rather than just abstractions or metaphors -- should be easily pooh-poohed. (Incidentally, as I understand it, there is some evidence for homosexual marriages taking place at some times in the past, but my sense is that these were rare and generally not treated as tantamount to heterosexual marriage even in their own society. They were certainly much more rare than polygamy, which was practiced in many societies, and is still practiced in quite a few today.)

 
[Eugene Volokh, 11:34 AM]
Slippery slope from homosexual marriage to polygamous marriage: Several readers have suggested that allowing homosexual marriage might also lead to allowing polygamous (polygynous, polyandrous, or both) marriage. The mechanism there, I think, is not implausible: Once gay marriage is recognized, people may feel that it's improperly discriminatory to then reject polygamous marriage (what I call the "equality slippery slope"); and once one traditional limitation is rejected, people may no longer be as persuaded by the argument that "polygamy is outside the traditional boundaries of marriage" (what I call the "attitude-altering slippery slope"). The argument is not that it would be logically impossible to distinguish polygamous marriages from homosexual marriages, but rather that it would be politically harder to do so, since some voters and legislators who would oppose polygamous marriages today may come to support them (or not oppose them as much) once homosexual marriages are allowed.

     I'm not persuaded by this argument, because I think that:

1. Many people will continue to be persuaded by the distinctions between multi-partner and two-partner marriages (both distinctions related to our sense of the greater difficulties of emotional and romantic commitment in the multi-partner context -- admittedly, a sense that others might want to challenge -- and to the practical legal complexities created by administering multi-partner marriages, especially when later spouses are added to an existing marriage).



2. If polygamous marriages are ultimately recognized, I highly doubt that it will materially affect society, because (as with homosexual marriages) only a very small number of people would be willing to participate them; and I doubt that those people will be hurting anyone other than themselves, and quite possibly not even themselves.



3. I think that the advantages of recognizing homosexual marriage exceed the disadvantages of possible further slippage, when those disadvantages are multiplied by the fairly small probability of such slippage. I definitely support considering possible downstream "slippery slope" consequences -- but one should also consider the immediate consequences. Sometimes the possible downstream costs may seem so heinous, and the immediate benefits would seem so small, that even a small chance of slippage should be enough to reject the proposed change. But when the downstream costs seem fairly modest, and the immediate benefits are fairly substantial (and I do think that fostering commitment and sexual exclusivity is a substantial benefit, both emotional, social, and public health), then I think that experimenting with the change would be worthwhile.

Again, though, I should stress that the concern about homosexual marriage increasing the likelihood of legalization of polygamous marriage is a plausible concern -- it's not just abstraction and metaphor, but there are plausible concrete mechanisms that we can envision that might bring it about. I think this consequence isn't terribly likely, but it can't be dismissed out of hand.

 
[Eugene Volokh, 9:41 AM]
Gay marriage e-mail: I'm afraid I've been getting so many messages on gay marriage that I might not be able to personally respond to all of them; my apologies for that.

 
[Eugene Volokh, 9:35 AM]
Nevada en banc hearing: The most recent order suggests that the hearing will be by telephone conference, not -- as I had mentioned in an earlier post -- by videoconferencing.

 
[Eugene Volokh, 8:28 AM]
Concealed carry of guns and the Wisconsin Constitution: The Wisconsin Supreme Court has apparently mostly upheld the state's ban on concealed carry, despite a right to bear arms provision added in 1998, but has held it to be constitutionally inapplicable in some situations. Reading the opinions now.

UPDATE: The court essentially held that people may be barred from carrying guns concealed on the street, but that they have a constitutional right to carry them in the businesses that they own (and, it seems likely from the reasoning, in their own homes). It's possible that the right extends only to businesses that are in high-crime areas, but I doubt that this is how the decision will be read. Wisconsin had an unusually broad concealed carry ban, which applied everywhere, including in people's homes; even the California law isn't that broad. The Wisconsin Supreme Court's decision essentially put Wisconsin more or less in the mainstream of the non-shall-issue states, where licenses to carry on the street are either entirely unavailable, or available only to those to whom the police wants to give licenses, but where people may carry concealed at home or in the businesses that they own. So on balance this is mostly a defeat for the gun-rights forces, who had hoped that the Wisconsin provision -- "The people have the right to keep
and bear arms for security, defense, hunting, recreation or any other lawful purpose" -- would be read as protecting the people's right to have guns reasonably available when they need to defend themselves, whether the need arises on the street, in the business, or in the home. But it's not a total defeat, and compared to the current Wisconsin statutes (as opposed to what one might have hoped for from the new constitutional amendment), even a step forward.

 
[Eugene Volokh, 5:50 AM]
What's the mechanism? This is the question that I kept coming back to when writing about slippery slopes, and now I ask it all the time when people make predictions that rest on metaphors or generalities. Such abstractions can be helpful, but they can also be deceptive. To understand whether some abstraction ("this will take us down the slippery slope," "this will have a chilling effect," etc.) is sound, we have to look beyond it to the concrete phenomena and processes that it refers to: We have to formulate a concrete scenario describing that corresponds to the abstraction.

     Then we can at least estimate, based on our understanding of the world, just how likely it is that this specific hypothetical process will take place. If all we had was abstraction or metaphor, then we couldn't even do that. This, I suppose, is also what Oliver Wendell Holmes was referring to when he told us to "Think things not words, or at least we must constantly translate our words into facts for which they stand, if we are to keep to the real and the true."

     So where am I going with these generalities and abstractions that praise the specific and concrete? Back to gay marriage, of course. (Well, not personally going there, just intellectually.)

     What troubles me about so many (though not all) of the anti-gay-marriage arguments is that they seem to be about shuffling abstractions. I've blogged recently about why I think there's not a lot of concrete insight behind the abstraction "unnatural" or the "accidental infertility / essential infertility" distinction. But let's look more broadly at the claim that "gay marriage will undermine the institution of marriage." What exactly is "the institution of marriage"? I'm married, lots of people are married, I understand people being married. But what does "the institution" refer to, and just how will "gay marriage . . . undermine" it.

     Here's one possible mechanism, which I alluded to at the end of my first post on the subject yesterday: "Human beings decide what's right based in part on what they see others doing. If homosexuals are more likely to treat marriages as 'open marriages,' which don't require sexual exclusivity, then young heterosexual people getting married might feel that their marriages should be the same way. This will lead to more extramarital sex, which will mean emotional suffering (even among people who had ostensibly agreed to allow this at the outset), more divorce, more problems for children caused by divorce, and more sexually transmitted diseases."

     Perhaps this isn't a very likely mechanism; I think things might happen that way, but on balance I doubt it (in part because homosexual couples will be such a small fraction of couples). But at least it's concrete: It explains the concrete harm -- emotional pain, problems for children, disease -- and lays out the causal steps so we can better estimate how likely each one will be. (For instance, would homosexuals, male and female, be more likely than straights to treat marriages as "open"? Would others be that influenced by seeing that?) By the way, though this is a secular argument, one can also imagine more or less concrete religious arguments, which rely on more specific claims than just "undermine the institution."

     But for the more common argument -- because gay couples are incapable of having biological children, gay marriage will somehow undermine marriage as an institution that helps raise children -- I just can't really see any really plausible mechanism. After all, there's little harm as such in having more married couples that have no children. The harm comes in having children with no married couple to raise them, either because the children are born outside marriage, or because the marriage ends in divorce. (Yes, divorced and single parents often do a great job raising children, but that's not optimal, and to the extent that we can have more children raised by relatively happy and well-functioning two-parent families, that would be better.)

     So how exactly -- concretely, not metaphorically -- would seeing more gay couples affect straight couples' willingness to have babies out of wedlock, or to get divorced once they have kids? Is it really plausible that many people will say "Oh, I know all these homosexual married couples as well as straight married couples [though note again that there'll be many more of the straight couples], so I'll just have kids without getting married"? Or that many people will say "Well, since there are all these homosexual married couples out there, I think I'll divorce my wife and kids"? Seems extremely unlikely to me. (If I thought that many straight men or women would become homosexual if homosexual marriage -- not homosexual behavior as such, but homosexual marriage -- were permitted, I might think this scenario is more likely; but that just doesn't correspond to what I know of people's psychology.)

     So that, I hope, helps explain why the "gay marriage would undermine the institution of marriage, because marriage is intended to provide a good environment for children" just doesn't seem persuasive to me. Too much abstraction, too little concrete explanation of why exactly this particular legal change would influence real people to act in ways that cause concrete harm.

     Actually, though I'm pretty libertarian on such issues, I can see concrete mechanisms behind objections to various behavior -- for instance, no-fault divorce, premarital sex, sexually promiscuity, even the availability of contraceptives. (I think that on balance the costs of trying to outlaw such behavior substantially outweigh the benefits, but I do see a concrete explanation of why the behavior may cause specific harms, and why outlawing the behavior might have some concrete benefits.) I just don't see the concrete mechanisms in play as to this particular argument against gay marriage.

 
[Eugene Volokh, 11:41 PM]
"The British government has learned": Michael Kinsley writes in Slate:

Bushies fanned out to the weekend talk shows to note, as if with one voice, that what Bush said was technically accurate. But it was not accurate, even technically. The words in question were: "The British government has learned that Saddam Hussein recently sought significant quantities of uranium from Africa." Bush didn't say it was true, you see -- he just said the Brits said it. This is a contemptible argument in any event. But to descend to the administration's level of nitpickery, the argument simply doesn't work. Bush didn't say that the Brits "said" this Africa business -- he said they "learned" it. The difference between "said" and "learned" is that "learned" clearly means there is some pre-existing basis for believing whatever it is, apart from the fact that someone said it. Is it theoretically possible to "learn" something that is not true? I'm not sure (as Donald Rumsfeld would say). However, it certainly is not possible to say that someone has "learned" a piece of information without clearly intending to imply that you, the speaker, wish the listener to accept it as true. Bush expressed no skepticism or doubt, even though the Brits qualification was only added as protection because doubts had been expressed internally.

I can't speak to people "fann[ing] out to the weekend talk shows," but I have heard this "it was technically accurate" defense -- and Kinsley is quite right that, if Hussein had not tried to buy uranium from Africa, then this defense is not sound. I have little to add to his analysis on this score: Indeed, saying "The British government has learned X" implicitly means "And I believe X to be true," for the very reasons Kinsley mentions. Whatever legitimate defense the Administration might or might not have here (Bush didn't know it was false / the CIA screwed up / etc.), the "i was technically accurate" defense is incorrect.

UPDATE: This post originally erroneously said "if Hussein had not bought uranium from Africa" -- I of course meant "if Hussein had not tried to buy uranium from Africa." Thanks to Brian Kelley for correcting me on this.

 
[Eugene Volokh, 11:20 PM]
A second Nevada federal lawsuit: Edward Boyd pointed me to an article that mentions a second federal lawsuit challenging the Nevada Supreme Court decision:

A second complaint was filed by Robert Hall in U.S. District Court, Las Vegas, naming the six state Supreme Court justices who held in a historic ruling last week that a tax plan could be approved on a simple majority vote.

Hall alleged the justices violated the separation of powers doctrine and violated Nevadans' constitutional due process rights. . . .

     I doubt that any of these federal lawsuits will go far -- the Nevada Supreme Court's decision is an outrageous violation of the Nevada Constitution, but, I think, not the U.S. Constitution. The federal courts have pretty consistently held that, outside some very narrow areas, the state courts are the ultimate expositors of state constitutions and state laws; the argument that "The state courts improperly interpreted their own constitution" just doesn't work in federal court. Such misinterpretations are generally (again, outside some narrow zones, such as criminal punishment caused by an unexpected state court interpretation of state law, which leads people to be punished for behavior that couldn't have been reasonably expected to be criminal) not Due Process Clause violations.

     Rather, as I've suggested before, the proper remedy is political rather than judicial. The Nevada Supreme Court has nullified the will of the Nevada voters. I'm sorry that most of the voters' representatives seem to be unwilling to put up a fight. I hope that the Nevada voters do better: To trigger a recall election, they'd need about 130,000 signatures (25% of the turnout in the election in which the Justice was elected, see Nevada Constitution, art. 2, sec. 9; I'm using 2002 numbers, and I expect that this will be somewhat higher for the Justices elected in 2000, and about the same for the Justices elected in 1998). This is a substantial number, but it shouldn't be impossible to achieve, I would hope -- especially since the issue involves protecting the voters from taxes.

     If the citizens don't stand up to defend their powers, then, yes, those powers will eventually be lost.

 
[Eugene Volokh, 6:06 PM]
Plaintiffs' argument in the Nevada federal challenge to the Nevada Supreme Court decision: The Memorandum of Points and Authorities, which contains the heart of plaintiffs' legal argument, is now available. The defendants must file their brief by tomorrow at noon -- I don't know where that will be, though I hope that Claremont will post it. (If any of you find that brief before I do, please let me know.)

 
[Eugene Volokh, 5:59 PM]
Videoconferencing: By the way, the en banc hearing is apparently supposed to be done by videoconferencing, with judges who sit in Las Vegas and judges who sit in Reno participating.

 
[Eugene Volokh, 5:56 PM]
Complaint in the Nevada federal case challenging the Nevada Supreme Court decision: Here's the information from the Claremont Institute site:

Institute Sues on Behalf of Nevada Taxpayers


John Eastman, Director of the Claremont Institute Center for Constitutional Jurisprudence and Professor of Law at Chapman University School of Law, together with local counsel Jeffrey Dickerson of Reno, Nevada, filed a complaint on Monday in the United States District Court for the District of Nevada on behalf of 24 members of the Nevada legislature and numerous taxpayers, voters, and business associations. These parties challenged as unconstitutional yesterday's action by the State Assembly to deem as "passed" a bill increasing taxes in the state without the two-thirds vote required by the Nevada Constitution.

The Speaker of the Assembly, one of the named defendants in the case, ruled against a constitional point of order objecting to the unconstitutional procedure, asserting that it was authorized by the decision of the Nevada Supreme Court last Thursday. The complaint alleges violations of federal civil, political, and constitutional rights, including the right of Nevada's legislators not to have their votes diluted, and the right of the citizens of Nevada not to have their vote to amend the Nevada Constitution nullified.

Nevada voters adopted the two-thirds requirement by initiative in 1996.

Eastman also filed a request for an immediate temporary restraining order, or TRO. The federal district court, invoking a very rarely used procedure to sit en banc (with all active judges of the court participating), granted the TRO on Monday afternoon and ordered defendants to respond by noon Tuesday. A hearing on the matter will be held simultanously in the federal courthouses in Reno and Las Vegas at 9:00 a.m. on Wednesday, July 16.

Copies of the pleadings, and the court's order, are available in PDF format below. Eastman will be available for media interviews by phone this evening and tomorrow morning, and in Reno tomorrow afternoon or after the hearing on Wednesday.

Go to:

District Court Ruling to Grant Temporary Restraining Order (pdf)

The Claremont Institute's Complaint for Violation of Civil and Constitutional Rights (pdf)

The Claremont Institute's Request for a Temporary Restraining Order (pdf)

The Claremont Institute's Memo of Points and Authorities (pdf)

[Go to the Claremont site for links.]

 
[Eugene Volokh, 5:50 PM]
More on en banc district court rehearings: I've also come across United States v. Bogle, 689 F.Supp. 1121 (S.D. Fla. 1988); United States v. Allen, 685 F.Supp. 827 (N.D. Ala. 1988) (en banc); United States v. Bolding, 683 F.Supp. 1003 (D. Md. 1988) (en banc), also in cases challenging the constitutionality of the Sentencing Guidelines; and United States v. Anaya, 509 F.Supp. 289 (S.D. Fla. 1980) (mass resolution of issues related to the Mariel boat lift). Anaya actually explains why the judges chose to sit en banc (that, of course, isn't binding on other en banc courts, which may have their own reasons), and also explains its statutory justification for the decision -- the authorization in 28 U.S.C. secs. 132, 137, for departures from the norm of single-judge district courts either by statute (not uncommon, especially in the past) but also by court order, which seems to be the means used here:

Pursuant to 28 U.S.C. [secs.] 132, 137 and in accordance with an order authorized by all active judges and issued by the Chief Judge of the United States District Court for the Southern District of Florida, these eighty-four (84) criminal cases were transferred to this Court en banc for the specific purpose of hearing argument and ruling upon certain substantially similar motions to dismiss.

The commonality of the facts and the legal issue set forth above was the primary impetus for our decision to treat en banc the pending motions to dismiss. We note further, that several salutary policies are served by doing so. First, en banc consideration and disposition will establish uniformity of treatment for similarly situated defendants. Where, as here, criminal sanctions are involved, the significance of uniformity, from both an individual and societal point of view, cannot be understated. Moreover, implicit in our desire for uniformity is our disinclination to depart from the doctrine of intra-court comity. That well-recognized doctrine, establishes a general rule that, absent unusual or exceptional circumstances, judges of coordinate jurisdiction within a jurisdiction should follow brethren judges' rulings.

Second, from a pragmatic, but nonetheless judicious point of view, treatment en banc, rather than in an individual, piecemeal fashion will avoid or at least limit unnecessary duplication of effort thereby conserving scarce judicial, governmental and private resources.

Here, the Court is convinced that the interests of society and the defendants in an orderly, expeditious and fair disposition of the charges are best served by an en banc proceeding. The Court is not unmindful that countervailing considerations may exist, but neither the government nor the defendants have identified or raised, and the Court is unable to discern, any compelling considerations weighing against en banc disposition. The mere possible existence of such considerations is not, without more, sufficient to undercut our conclusion that en banc treatment of the motions to dismiss is warranted.

With respect to our authority to sit en banc, we conclude that Congress, in enacting 28 U.S.C. [sec.] 132(c) as part of the comprehensive 1948 revision of the Judiciary Code, see Act of June 25, 1948, ch. 646, 62 Stat. 895, contemplated that a District Court might, pursuant to "rule or order of Court," conduct an en banc session. [footnote: En banc decisions are to be distinguished from those in which District Courts have designated a panel of several judges, but fewer than all, to establish uniformity within the district on recurring questions. See, e. g., Lucas v. "Brinkness" Shiffahrts Ges., 379 F.Supp. 759 (E.D.Pa.1974); Turner v. Transportacion Maritima Mexicana S.A., 44 F.R.D. 412 (E.D.Pa.1968); Close v. Calmar S.S. Corp., 44 F.R.D. 398 (E.D.Pa.1968). In the latter type of case, the panels acknowledged their decisions were not actually binding upon other judges in the same district. See Turner, supra, at 414 n.1. Further, en banc decisions are to be differentiated from those cases in which the judge hearing the case will state in his opinion that he has shown the opinion to the other judges of the district and that they concur in it. See, e. g., Slomberg v. Pennabaker, 42 F.R.D. 8, 12 (M.D.Pa.1967); Dziwanoski v. Ocean Carriers Corp., 26 F.R.D. 595, 599 (D.Md.1960).]

The legislative history to 28 U.S.C. [sec.] 132(c) makes clear that the statute "merely recognize(d) (this) established practice." On at least three occasions prior to the enactment of 28 U.S.C. [sec.] 132(c), judges in the Eastern District of Pennsylvania sat en banc to hear certain matters. Hickman v. Taylor, 4 F.R.D. 479 (E.D.Pa.1945); Matter of Clover Drugs, Inc., 21 F.Supp. 107 (E.D.Pa.1937); Matter of Jay & Dee Store Co., 37 F.Supp. 989 (E.D.Pa.1941). Inasmuch as these 84 cases were transferred pursuant to an "order of court," we conclude that 28 U.S.C. s 132(c) authorizes this en banc Court to hear and decide the motions to dismiss now pending before us.

 
[Eugene Volokh, 5:20 PM]
Update on the Nevada Supreme Court stay: My friend and ex-colleague Evan Caminker, responding to a message that I posted to a constitutional law professors' discussion list, pointed out that U.S. v. Ortega Lopez, 684 F. Supp. 1506 (C.D. Cal. 1988), involved the district court judges in the Central District of California sitting en banc to consider the constitutionality of the Federal Sentencing Guidelines. (They held the Guidelines unconstitutional, though the Supreme Court soon thereafter disagreed.) I quickly skimmed the decision and found no citation to a specific statutory authorization -- perhaps it's part of the federal district courts' inherent power, which I'll be investigating shortly. I did see that the majority's order stated that "This decision is binding upon the members of this Court in all relevant cases unless and until we receive a contrary ruling from the Ninth Circuit or the Supreme Court," something that is usually not the rule -- district court decisions aren't binding precedent for future cases even as to the judge who issued them, and certainly aren't binding on his colleagues on the same district. Curiouser and curiouser.

 
[Eugene Volokh, 5:10 PM]
Very odd development from Nevada: An AP wire story reports that:

U.S. District Judge Philip Pro temporarily restrained the action by which the Nevada Assembly passed a tax bill with less than a two-thirds vote. He ordered an en banc hearing with all district judges for 9 a.m. Wednesday in Reno and Las Vegas.

The Assembly voted 26-16 Sunday for a bill that would increase taxes by a record $788 million over the next two years.

Today, Republican lawmakers, citizens and business groups -- upset with Thursday's decision by the state Supreme Court rejecting the two-thirds vote requirement to pass taxes -- filed an action in U.S. District Court seeking to block the court's ruling.

Assembly Minority Leader Lynn Hettrick, R-Gardnerville, said the federal action is necessary because the 6-1 Supreme Court ruling allowing only a simple majority to raise taxes is unconstitutional.

"We don't believe the court's decision that we can ignore the constitution is legal," he said.

     I'm told that Judge Pro's order simply says that the Nevada Supreme Court's decision is being temporarily restrained, and doesn't specify a particular federal constitutional basis for the order. I've also heard confirmation that there is going to be an en banc district court hearing, something that I'd never heard of before. That doubtless says more about my lack of knowledge of the finer points of federal civil procedure -- but I do feel comfortable saying that such en banc district court hearings (as opposed to en banc court of appeals hearings) are extraordinarily rare. If anyone has more specific details on this, I'd love to hear them.

     Incidentally, I continue to think that though the Nevada Supreme Court decision is an outrageous violation of the Nevada Constitution, it doesn't violate the U.S. Constitution, and the proper remedy for the decision is in the hands of Nevada legislators and voters, and not federal judges. We'll see what the federal judges have to say, when they have the hearing on the merits (rather than just on whether the Nevada Supreme Court decision is to be stayed pending that hearing).

 
[Eugene Volokh, 2:45 PM]
"Unnaturalness": Some responses to my gay marriage post have made variants of the "unnaturalness" argument -- gay sex is "unnatural," or in one version, isn't "structurally correct." I thought this may be a good opportunity to repeat my objection to this argument, which I quote below.

     My basic point there is really the same as my objection to the argument that marriage should include the supposedly "accidentally infertile," such as 70-year-olds or those who have had to have their sexual organs surgically removed, but not the "essentially infertile," such as gay couples. There are definitely plausible arguments against homosexuality and against homosexual marriage -- arguments based on various religious, moral, and practical judgments (though I ultimately find the opposing arguments more plausible).

     But the arguments that try to enlist seemingly neutral concepts such as "nature" or abstract logic as a support for opposition to homosexuality or homosexual marriage do not strike me as plausible. On closer examination, they generally turn out to be ways of hiding one's religious, moral, and practical judgments, rather than as a genuine supplement to or foundation for those judgments. I'm trying to sweep away these naturalistic or essence-vs.-accident arguments, in order to focus the debate more on the real arguments, rather than on the philosophical veneer.

CRIMES AGAINST NATURE: I realize this is a pretty banal point by now, but one argument that I've never understood against homosexuality is that it's "unnatural," and therefore "wrong." What exactly does "unnatural" mean, and why does it tell us anything about what is proper?

     1. "Unnatural" might mean "not found in nature." Well, that's a bit odd, because humans are a part of nature. I suppose "unnatural" might mean "found only in humans," but even if that's true, then homosexuality isn't unnatural: bonobo chimpanzees, who I doubt have been influenced by any alleged homosexual propaganda, do it, too (I almost wrote "do it as well" but that would have been ambiguous).

     2. "Unnatural" might mean "flowing from conscious design rather than human's physiological nature." That, though, would be pretty odd, too. First, the Bonobos are relevant even to this; but, second, millions of people do it, and they seem to have the same sort of emotional and physical drive towards it as heterosexuals do towards heterosexual sex. I haven't seen the studies, but I'm quite sure that homosexual stimuli yield physical reactions -- arousal, hormonal flow, and so on -- in homosexuals just as heterosexual stimuli yield them in heterosexuals. If heterosexual lust is "natural" in the sense that it's part of the nature of heterosexuals, I've seen no reason to doubt that homosexual lust is natural, too.

     3. "Unnatural" might mean "not done by most humans in the state of nature," which is to say before civilization and the imposition of large-scale social structures which may have led people to deviate from the practices in which they engaged for tens of thousands of years. This is the way "unnatural" seems to be often used in some discussions of natural lifestyles, though rarely focused on sex. But even if the "most humans" proviso makes homosexuality unnatural, then it's unnatural in the same sense that bathing, toothbrushing, and representative government are unnatural. Under this definition, "unnatural" has little to do with "morally proper." We don't measure the morality of most of our other practices by what most humans did in the state of nature -- why should we measure sexual practices that way?

     4. "Unnatural" might mean "not done by most humans today, which suggests that it isn't consistent with human nature." This, though, assumes that human nature is monolithic: If most people don't have some trait, then it's not part of human nature. Are redheads, then, unnatural? Or people with blue eyes? Or, shifting away from the clearly genetically linked (for purposes of this discussion, I don't need to enter the debate over whether homosexuality is genetically linked, though my understanding is that separated-at-birth twin studies do support such a link), is being a religious Jew unnatural? How about liking to run 26 miles at a stretch? Either these aren't unnatural -- because human nature might consist of different groups of people with different traits -- which disposes of another reason why homosexuality might be "unnatural"; or they are unnatural, in which case there's nothing wrong with being unnatural.

     5. "Unnatural" might mean "not contributing to the propagation of the natural phenomenon of a reproducing species." Heterosexual genital intercourse contributes to the propagation of the species, but homosexual genital intercourse doesn't. (Heterosexual oral intercourse, which I believe most Americans engage in at one time or another, isn't reproductive, but, the theory goes, "one thing leads to another.") But that's a strange definition of unnatural, and a stranger still definition of "unnatural and therefore wrong." First, human beings in society seem to appreciate art and music (of at least some sorts); that seems to be part of human nature, and though it doesn't directly lead to the propagation of the species (except insofar as artists and musicians tend to get a lot of, er, attention), we don't find it unnatural. And, second, if we do conclude that art, music, abstract mathematics, and so on are all unnatural in this sense, no-one would say that they're therefore bad.

     6. "Unnatural" means "contrary to the nature of the sexual act." Wait, someone might say, the argument in the previous paragraph is irrelevant, because art and music aren't supposed to reproduce the species. Sex is supposed to reproduce the species -- in the sense that this is its chief biological function -- so while nonprocreative art is fine, nonprocreative sex is unnatural and therefore wrong. This theory really would mostly condemn heterosexual nongenital intercourse, and heterosexual intercourse among the infertile and those who use birth control; but, the theory would go, those things are more likely to indirectly lead to reproduction, either by the couple or by others who follow their social example.

     But do we really think that our conduct should follow the chief biological function of the items, traits, or organs involved? The chief biological function of food is nutrition. Does it follow that it's not only unnatural but wrong to eat food for the sake of enjoyment, when you're not hungry? (I'm not talking about eating to excess, but about any eating that goes beyond the biological function of food.)

     The chief biological function of wood is to maintain a tree. Does it follow that it's unnatural and therefore wrong to build houses or furniture out of trees, or to burn them for warmth? The chief biological function of hair is -- well, I'm told that it's complicated, but surely the function is not served by braiding hair or dying hair. Perhaps braiding and dying serves a secondary biological function of hair, which is to make the person sexually attractive. But once we accept secondary biological functions, surely one can accept that sex is chock full of them as well, such as giving pleasure and fostering social relationships (and social relationships are very much a part of human nature, and for that matter of bonobo nature). Homosexual sex fits those secondary functions.

     7. "Unnatural" means "contrary to the will of God as expressed in nature." That, it seems to me, doesn't work well for most of the reasons given above. Nature contains homosexual desire just like it contains red hair and blue eyes.

     8. "Unnatural" means "contrary to the will of God, who created nature, as expressed in certain authoritative religious works." Now with that I can't argue -- theologians debate about how various religious works should be interpreted on this score, and people also debate, of course, about which works are the correct ones. I have no expertise in those debates, and not much interest.

     But it seems to me that this argument really has next to nothing to do with nature as such. Killing, stealing, and adultery seem natural under virtually any definition of nature; the religious objection to them may turn on them being contrary to the will of God, but I don't think it really has anything to do with naturalness. Likewise for homosexuality.

     And this is an important point, because when people say "homosexuality is wrong because it's unnatural," it seems to me that they are trying to assert more than just "homosexuality is wrong because it's contrary to my contested interpretation of contested religious texts" -- they are trying to call on a more objectively defined, uncontroversial authority called "nature," which is why they say "unnatural" rather than "ungodly." (Some do say "ungodly," but that's not the argument I'm confronting here.) The trouble is that this call fails: Whatever one's definition of natural, either homosexuality is natural, or it's unnaturalness says nothing at all about its propriety.

 
[Eugene Volokh, 12:40 PM]
More on gay marriage: Reader Christopher Phelan passes along the following argument, which I'd also heard from others:

I happen to be 40 years old, happen to be an economist, and happen to be fertile, but I AM a man. I am not a human who happens to be a man. Being male is fundamental to who I am in a deeper way than any of these other characteristics.

This is essentially Aristotle's essential vs. accidental dichotomy.

If a man and a woman have sex, that sex may happen to have zero probability of conception due to the time of the month, the age of the participants or an infirmity of one of the participants, but if two men have sex, it is not the case that their sex acts just happen not to be able to lead to children. The homosexual couple is fundamentally (or essentially) infertile as opposed to accidentally infertile. Again, there is something much deeper about what causes two men having sex not being able to have children than two 70 year olds.

Given this, it seems to me that society is not giving up the principle that marriage is an institution designed to protect the family by allowing infertile heterosexual couples to marry. Everyone sees the differences between the infertile and fertile as small or shallow. On the other hand, allowing the fundamentally infertile to marry damages the principle precisely because everyone sees the difference between a fertile heterosexual couple and a homosexual couple as deep. Making exceptions for deep differences throws out the principle. . . .

     I don't quite see, though, how this is right. The argument rests on the notion that there's some deeply morally and philosophically significant distinction between infertile couples, who are just "accidentally infertile," and homosexual couples, who are "fundamentally (or essentially) infertile." But why is this so?

     It's true that to create a baby, you need a man and a woman. But not just any man and a woman suffices -- you need a man who is producing sperm that are capable of fertilizing an egg, a woman who is supplying eggs that are capable of being fertilized by a sperm, and a variety of other biological components.

     It seems to me that a woman who is no longer capable of menstruating is, from a biological perspective, as incapable of producing babies as a man. Likewise for a woman who has had her ovaries and uterus surgically removed. (At least this is true as to normal sex; of course, the man and the woman would be able to adopt, or have one partner parent a child with the help of some outside party, but the same is true for a homosexual couple.) From a biological perspective, labels such as "accidentally" or "essentially" infertile don't really work here: The incapacity to conceive and bear children is just as "essential" an aspect of women who aren't menstruating, or who have had certain surgeries, as it is of men.

     So if there is a moral distinction between a heterosexual couple in which the parties are biologically incapable of producing children together, and a homosexual couple in which the parties are biologically incapable of producing children together, it can't just be shown by labeling one cause of incapability "accidental" and the other "essential." One has to explain just why one cause of infertility is morally different from the other. Labels won't do the trick here, it seems to me, and neither will claims about "[e]veryone see[ing]" one difference as "shallow" and the other as "deep," since some people (for instance, like me) believe that the differences are -- at least for purposes of deciding whether gay marriage is proper -- not morally significant.

 
[Eugene Volokh, 10:43 AM]
"How sweet": What do we think when we hear that two 70-year-olds get married (usually because their earlier marriages were ended either by the spouse's death or divorce)? I take it that it's usually, "How sweet." Old love makes us smile just as young love does, and a desire to express lifelong commitment seems noble and worthy at any age. Sure, there likely won't be any pitter-patter of little feet coming from that marriage, but so what?

     This is what puzzles me about one particular argument against gay marriage: "For centuries, our laws have understood and promoted marriage (though it pre-dates government recognition) as an institution that channels adults' erotic desires into the productive pursuit of rearing children, who must be formed into adults capable of sustaining self-government" (I quote here from today's Weekly Standard piece by Lee Bockhorn). There's no doubt that marriage is a valuable institution in that respect -- but to my knowledge, we've never thought (at least not in the last couple of hundred years) that the legal definition of marriage must follow this particular justification. We've never doubted that marriages of old people, or of people who are known to be sterile, or even of people who have unfortunate hereditary diseases that should counsel against their having children, are still praiseworthy and just plain heartwarming.

     Part of this, of course, has been because we don't want the legal system to engage in intrusive inquiries of prospective spouses: Are you fertile? Are you planning to use contraceptives? Have you passed menopause? But that doesn't explain why we generally support even non-child-producing marriages as a social matter, not just as a legal matter. After all, the legal system doesn't bar people marrying for money, but if we hear these days that this is clearly the case as to some marriage, we frown on it. But we don't frown on marriages of the infertile.

     The reason for that, I think, is that there's always been another justification for the marriage, besides child-rearing: The worthiness of people making lifelong commitments to love one another. There are many reasons why such commitment-making is worthy -- it shows a preference for the deeper pleasures of fidelity and emotional bonding, rather than the shallower pleasures of sexual variety; it makes it easier for people to make short-term sacrifices for the other partner, because they're assured (more or less) of the long-term payoff of the commitment; it's a precommitment strategy that can in some measure protect love against pressures that would be great enough to sunder an informal relationship, but that aren't great enough to break a legally committed one. And all these reasons, I think, also apply to gay marriage.

     Ah, yes, some might say, but it is about children after all -- we protect even obviously infertile male-female marriages because they buttress the overall institution of male-female marriage, which in turn protects the children of those male-female marriages. But if that's so, why wouldn't gay marriages likewise buttress the overall institution of male-female marriages (though admittedly only to a small extent, given the small fraction [2-3%] of the population that's gay, a much smaller fraction than the fraction that's childless though married, or for that matter than the fraction of the population that has been divorced)?

     The article that I quote above goes on to say that "[marriage] has also been understood as an institution necessarily based on mutual fidelity, sacrifice, permanence, and, crucially, the sexual complementarity of men and women." The first three, it seems to me, would apply to gay marriages (though not always, just as they haven't always applied to straight marriages). As to "the sexual complementarity of men and women," I just don't see why that should be a necessary part of the legal institution of marriage. The existence of gay and lesbian relationships shows that, as a matter of fact, some men find themselves to be sexually complementary with men, and some women with women. Merely asserting that there's something especially significant about "the sexual complementarity of men and women" (other than the possibility of childbirth, which I've already discussed) -- significant enough to warrant special treatment for male-female relationships -- isn't enough; it needs to be demonstrated, and the article I quote doesn't do so.

     This leaves three possible objections. One is that homosexuality is simply immoral, and that even if it shouldn't be criminalized, it shouldn't be endorsed by the government. For people who really do believe that homosexuality is immoral, then that position might make sense -- though even there one would have to ask, I think, whether the moral benefits of gay marriage (e.g., the greater pressure towards sexual fidelity, which may be seen as a moral, social, and public-health virtue independently of the gender of the partners) may exceed the moral costs of the government endorsing homosexuality that way. But for those who believe, as I do, that homosexual conduct is no less morally worthy (and, at times, no less morally unworthy) than heterosexual conduct, the "don't endorse immoral conduct" objection obviously carries little weight.

     Another is the general Burkean point that we should be hesitant to mess with the traditional rules of an institution that's this important to society. This is a plausible position; but I just doubt that allowing gay marriages, which will generally be no more than 2-3% of all marriages, is going to have much of a bad effect (or much of an effect at all) on the institution.

     The third objection is, I think, ultimately the most sensible one, though in my (tentative) view it still doesn't carry the day (and the article that I quote actually doesn't make this objection): If gay and lesbian marriages are likely to be much more fragile than straight marriages, and are likely to involve more extramarital affairs, then one might plausibly fear that allowing gay and lesbian marriage will hurt the institution of marriage -- not because homosexual marriages are harmful to marriage generally, but because unfaithful marriages are harmful to marriage generally. I have heard seemingly plausible arguments that male homosexuals are more likely to accept extra-relationship sex as part of committed relationships, though my experience exploring the Myth of the Median Hyper-Promiscuous American Gay Male makes me skeptical of such claims.

     If this is indeed so and likely to remain so within gay marriages (as opposed to unmarried relationships), and if it's so to a very substantial degree, enough to overcome what seem to me the substantial benefits of allowing gay marriage, then one would at least be able to point to a concrete potential harm of gay marriage: As people see a substantial subculture in which extramarital relationships are very common, and in fact publicly tolerated, they may become more likely to think that extramarital sex is OK. In my view, such an attitude would be socially and individually harmful, even if it's fully consensual on all sides (i.e., even if both parties to the marriage agree that it's an "open marriage"). That wouldn't be enough reason, I think, to criminalize fully-consensual adulterous or homosexual relationships; but it might be a reason not to place a social imprimatur on a form of marriage that seems especially likely to promote "open marriage" more broadly.

     But I remain skeptical about this, especially because gay and lesbian marriages are going to be quite rare (just because gays and lesbians are such a small part of the population), so many more heterosexuals than homosexuals are going to be having sex outside their marriages, even if the probabilities are greater for any particular homosexual couple. (Bonus question: If you oppose homosexual marriages because you suspect that male homosexual marriages are more likely to be "open," what would you say if -- and I don't know whether this is so -- it turns out that female homosexual marriages are likely to be as committed as heterosexual marriages, or more so?) And, as I said before, I think the moral, social, and public health benefits of homosexual marriages are in any event likely to exceed any possible costs, even if it does turn out that homosexuals are substantially more likely than heterosexuals to have "open marriages."

     In any event, though, it is this latter argument that I think is the really relevant one here. On the other hand, general claims about how marriage is meant to promote stability in children's lives (partly true) and therefore should be limited just to same-sex couples (which does not follow) are not, it seems to me, terribly helpful.

     UPDATE: I forgot to mention an important point when I first posted this: I tentatively support state legislatures legalizing gay marriage. I do not believe that courts ought to do this on their own, either as a matter of federal constitutional law or state constitutional law.

 
[Eugene Volokh, 8:25 AM]
Orin Kerr: As Orin mentioned Sunday -- and as I believe was mentioned either by him or by me several months ago -- his Supreme Court clerkship (he's starting with Justice Kennedy today) means that he has to quit blogging for the year. I'm very sorry that he's leaving us, but I'm just delighted by the reason; he'll have a fantastic year, and will learn all sorts of fascinating new things, 99.44% of which he will be unable to tell any of us. (By the way, to my knowledge there's no formal "no-blogging" rule at the Supreme Court, but there's a very firm custom that clerks stay out of the media during their year of clerking, even with regard to their non-Court-related thoughts; and it's a custom that I think is quite sensible, even though I might regret its results in particular cases.)

     In any event, I wanted to once again congratulate Orin, and express my hope that he'll be back when his clerkship is done.

 
[Eugene Volokh, 8:20 AM]
Likely new record for Volokh Conspiracy traffic: Our eXTReMe tracking counter says we had over 17,000 unique visitors Friday, which I believe is a record for our site. (The new version of Bravenet has seemed pretty glitchy, so I'm hesitant to rely on it, and especially on comparisons between its recent results and its results weeks or months ago.) I'm pretty sure that we won't sustain this level of traffic, but recent weekdays have shown a median of 10,000 or more visitors per day, and I'm hoping we'll continue that way, or even go up from that. Many thanks to all our readers!

 
[Eugene Volokh, 6:57 AM]
Letter to the Senate Judiciary Committee Opposing the Victims' Rights Amendment This is based on the same argument that I gave in my GlennReynolds.com guest blog post on July 3, but I thought I'd pass it along in any event. I just faxed it Friday to Sens. Hatch and Leahy -- I hope someone will pick up on it. Many thanks to Profs. Kingsley Browne, Clifford Fishman, Rick Garnett, and Phillip McIntosh, who agreed to also sign the letter.

LETTER FROM REPUBLICAN LAW PROFESSORS REGARDING THE PROPOSED VICTIM’S RIGHTS CONSTITUTIONAL AMENDMENT
____________________________________________________

July 11, 2003

The Honorable Senator Orrin Hatch, Chairman
Senate Committee on the Judiciary
506 Hart Senate Office Building
Washington, D.C. 20510

The Honorable Senator Patrick Leahy, Ranking Member
Senate Committee on the Judiciary
217 Russell Senate Office Building
Washington, D.C. 20510

Dear Senators Hatch and Leahy:

We write this as law professors who are law-and-order Republicans, but who oppose the proposed Victims’ Rights Amendment (S.J. Res. 1). We firmly believe both in the importance of protecting crime victims, and in the value of federalism and state autonomy. We have no doubt that the law should protect crime victims, and the laws of all states do in considerable measure do that.

But it seems to us that the matter should be left precisely there: in the states. The citizens of each state are now free to choose what level of protection to give crime victims—and, after all, voters know they may one day become crime victims, so voters and legislators have plenty of incentive to provide ample protection. The Framers designed our Constitution to allow this sort of state-based approach, and they were right to do so.

The proposed amendment isn’t just a grant of extra rights to victims. It’s also a transfer of decisionmaking power from elected state legislators to (ultimately) the nine U.S. Supreme Court Justices. It will be federal judges, after all, who get to decide what constitutes “reasonably [being] heard,” “du[e] consider[ation],” “unreasonable delay,” “just and timely claims,” “substantial interest,” or “compelling necessity.” And while state legislators’ mistakes can be corrected just with a new statute, the Justices’ mistakes may take another constitutional amendment to fix.

Moreover, state legislators can take advantage of the experience of the other states: Laws that prove too costly, too vague, or counterproductive can get replaced. Laws that prove effective can be adopted in other states. And as time goes on and new needs arise, state legislatures can adapt to these needs. This experimentation would be much harder if the matter were given to the federal courts.

The Framers, we think, were correct: Not everything that’s worth doing should be done by the federal government, whether by the federal Congress or federal judges. In some rare cases, where the nation’s stability demands it, or where fundamental human rights are in imminent jeopardy, the Constitution might need to be amended to provide a national standard. That’s why the Civil War amendments, for instance, prohibit race discrimination, and protect the freedom of speech and other rights that we have found are vital for our survival as a strong and decent nation. But though there may be some faults in the way some states protect certain victims’ rights, there’s nothing comparable to the disaster and oppression that prompted those Amendments. At most, there’s honest and reasonable disagreement between states on difficult questions related to balancing the interests of victims, the interests of criminal defendants, and the limited resources of the state government.

These disagreements should be resolved by state legislators (or, in some states, by voters operating through the initiative process). They shouldn’t be turned over to unelected federal judges.
Sincerely,
Eugene Volokh
Professor of Law
UCLA School of Law

Kingsley R. Browne
Professor of Law
Wayne State University Law School

Clifford S. Fishman
Professor of Law
Catholic University of America School of Law

Rick Garnett
Associate Professor of Law
University of Notre Dame Law School

Phillip L. McIntosh
Professor of Law
Mississippi College School of Law

(Institutional affiliation for identification purposes only. The signatures do not reflect the official policy of the named law schools.)

 
[Eugene Volokh, 8:13 PM]
Letter from Niger: Just got this bulk e-mail; author unknown:

Dear Mister Gaorge Bush:

Please keep this in the strictest confidense. You do not know me, but my name is Umbuto Johnson, and I am the grandson of Ashtari P. Johnson, in charge of the nuclear programme of the African country of Niger.

For severale years, my grandfather had been secretly selling radoactiv materiels to the little known country of Iraqe. He was given the sum of twenty million dollars by Saddem Hussan, of Iraqe, for this materiels. When my grandfather was discovered, two years ago, he was shot by the government. The money from those sales however remained hidden to all.

Before he was caoght, my grandfather shared with me his secret, and gave me instructions on how to move the moneys out of the country. In order to do this, I need the help of a trustworthy American friend and this is why I am seeking to write to you today.

In order to recieve the moneys I must pay a fee bribe of twenty thousand American dollars. I do not have this moneys. If you can send to me these moneys, I will split my grandfathers moneys with you.

Please tell nobody of this message, for I fear I will be in grave danger if it is known. I am relying on you, George Bush, to keep my secret. Respond to me and I will tell you how to send the moneys to me.

Your frend,
Umbuto Johnson