I'm delighted that Bill Patry, one of the leading copyright scholars in the nation — and the author of a treatise on fair use — has started The Patry Copyright Blog, which I'm sure will become a great source of news and opinion for people interested in copyright. The inaugural substantive post is particularly interesting — it's about parody, copyright, the political valence of parodies, and "Yiddish with Dick and Jane" (which Bill didn't much care for).

I don't think I entirely agree with Bill's analysis; in particular, I think the "compelled speech" argument for letting authors block copying is mistaken, for reasons I discussed at pp. 727-732 (PDF pages 31-36) of this article. But I still highly recommend the post.

So when you're citing a Supreme Court from the 1800s, when the reporters didn't include the date a case was decided but only the term (e.g., "October Term, 1878"), what do you use for a date?

You might go with the term year, though many of the cases will have been decided in the following year; and I wouldn't fault you for it. But while proofreading the second edition of my First Amendment textbook, I noticed that Reynolds v. United States -- the leading Mormon polygamy case -- was cited in one place as 1879 and in another as 1878, and I didn't want to maintain the inconsistency or to just guess which is right. A WESTLAW search revealed that 1273 articles cite it as 1878, and 432 articles as 1879, but 24 Supreme Court cases cite it as 1879, and only 4 as 1878. What should I, law geek that I am, do?

The answer is to look things up in Dates of Supreme Corut Decisions, United States Reports Volumes 2-107, August Term 1791-October Term 1882, prepared by Anne Ashmore of the Supreme Court law library. The answer: The case was handed down in early 1879.

has a sneak preview of Ariana Huffington's new blog. Thanks to Daniel Schmutter for the pointer.

From PG at De Novo: "UPDATE: Note to self -- always check Volokh first." Hear, hear!

Cathy Seipp has a very good column on this.

Here's the question for today: Who are now the highest-ranked, and who have been the highest-ranked

1. Atheist or Agnostic, expressly self-described (it's not enough that the person have no known religious sensibilities; he has to have openly described himself as such, much as people of other religious groups often openly describe themselves as such)
2. Baha'i
3. Buddhists
4. Hindus
5. Muslims
6. Sikhs
7. Armenian-Americans
8. Filipino-Americans
9. Georgian-Americans (and I don't mean of the Jimmy Carter variety)
10. Iranian-Americans
11. Korean-Americans
12. Thai-Americans
and
13. Vietnamese-Americans

I give a few answers that I think I know below; please post your own answers in Comments. (I won't alter my original answers, so please note that a commenter may have bettered them.) Each answer should (1) include the person's name and position, (2) in cases where there might be any controversy, proof, preferably a link to a site that confirms this, and (3) say whether he's the current highest or the all-time highest. Also, please check all previous comments, as well as my answers, to make sure that yours (4) isn't a duplicate (make sure to check my answers, hidden below, to see if yours duplicate them), and (5) hasn't been trumped by a clearly higher-ranked official that has already been named. More broadly, (6) please read the question and the rules carefully, and (7) please don't post arguments about why the rules are sound or unsound or how they should be amended.

UPDATE: A reader asks why I lump together atheists and agnostics. In theory, the two may be quite different, but my sense is that in practice people have such different definitions of the terms that "I am an agnostic" and "I am an atheist" don't really reliably distinguish the two.

FURTHER UPDATE: I'd like the comments to be a good and readable source of answers for readers, so I've deleted some comments that were erroneous, duplicative, nonresponsive, and the like. Don't take it personally . . . .

I've gotten some e-mail arguing that Senators' objections to judges who have expressed strongly pro-life views violate the Religious Test Clause of article VI, clause 3 of the Constitution:

The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution; but no religious Test shall ever be required as a Qualification to any Office or public Trust under the United States.

I'm not an expert on the Religious Test Clause, and my quick research hasn't found much that's terribly dispositive about its original meaning. My sense is that it was primarily focused on laws or official government policies -- which had existed in England -- that required people to swear that they belonged (or didn't belong) to one or another religious group. The tests were oaths, hence the placement of the provision alongside the oath requirement. I'm not sure that the Clause was understood as extending further, for instance to religiously discriminatory appointment or confirmation decisions by particular officeholders; so if a President decides to nominate a Catholic to some post because he thinks it will help get him the Catholic vote, or even if a Senator just doesn't like Mormons or Jews and decides to vote against them, I'm not sure that there's a Religious Test Clause violation there. The action may well be reprehensible, but not, at least on these grounds, unconstitutional.

But even if I'm wrong and the Clause was or should be understood as barring all discrimination based on religion or on inherently theological beliefs (e.g., on whether the nominee believes in the Trinity), I think it can't properly be read as barring discrimination based on beliefs on political issues (at least ones that aren't inherently religious), such as abortion, capital punishment, war, and so on.

There are many arguments supporting this position, I think. First, such discrimination is a political test, not a religious test, even if a person's political beliefs happen to stem from religion. Second, saying that it's a religious test when a person's political beliefs happen to stem from religion would itself be facially discriminatory in favor of religious nominees. If potential nominee X opposes capital punishment on secular grounds, and Y opposes it on religious grounds, it seems to me that the President must be equally free to refuse to nominate them -- if he really wants appointees who support capital punishment -- rather than having a right to reject X but no right to reject Y.

But most importantly, consider: The Religious Test Clause applies to all officeholders, including executive ones. It was clearly meant to cover cabinet members, their subordinates, and other executive officeholders as well as judges. But beliefs on contested moral issues are an important and necessary part of the President's decisions about whom to appoint.

A President who strongly believes in enforcement of the death penalty would want to appoint an Attorney General and other high Justice Department officials who support the death penalty. If a potential appointee believes that the death penalty is morally murder, the President may quite properly refuse to appoint him. It's not enough that the candidate promises to enforce the laws fairly -- the President rightly wants zeal (even if, I hope, zeal tempered by caution) and not just grudging agreement to enforce the law. And such a decision by the President is proper, I think, whether the potential appointee's opposition to the death penalty stems from secular reasons or from religious ones.

Likewise, a President who is appointing Defense Department officials may well want to avoid people who are morally committed to pacifism; a President who is appointing officials that will administer a program that distributes contraceptives may well want to avoid those who are on the record as viewing contraception as immoral; and the list could go on. And the same goes for Senatorial decisions about whom to confirm.

It seems to me the same must apply equally to judges, who are no more and no less covered by the Religious Test Clause than executive branch officials. As I've said before, there are lots of arguments as to why Senators should generally defer to Presidential choices here, or why they shouldn't reject judges based on the judges' moral views. But the Religious Test Clause does not provide such an argument -- Senators are as entitled under the Religious Test Clause to scrutinize judges' moral views as a proxy for the judge's likely future legal decisions as Presidents are entitled to scrutinize prospective Attorney Generals' moral views as a proxy for the Attorney General's likely future policy decisions.

Finally, consider a hypothetical: Say that it turns out that a judicial nominee believes that women are morally inferior to men -- not just that they are biologically different in various ways, or even that society operates better when the law treats the sexes differently, but that women are unclean and less worthy of moral concern. Senators say that they'll refuse to confirm this candidate because of such views, since they're afraid that a judge with such views will interpret the law in ways that the senators think will be unjust. "No, you can't do that," says the nominee. "My views about women stem from my religious beliefs, so your rejecting me based on my views about women is a violation of the Religious Test Clause." Is he right? Do the Senators have a constitutional duty to ignore those views? Would the President have a similar constitutional duty to ignore the person's views when making a nomination decision in the first place?

Naturally, I do not believe that Catholic pro-life views are morally on par with the views of this hypothetical nominee. But surely the Religious Test Clause doesn't protect only morally sound religions and not morally reprehensible ones. (The whole point of the Clause was to treat religions equally, without legal judgment that one or another religion is reprehensible.) Either (1) considering a candidate's pro-life, anti-death-penalty, anti-war, and anti-woman views is equally permissible under the Clause, because it is a political test, not a religious test, or (2) it's equally impermissible, and Presidents and Senators must ignore a prospective judge's anti-woman views, a prospective Defense Department official's pacifist views, or a prospective Justice Department official's anti-death penalty views. I think the answer is pretty clearly #1.

As I was updating the post below, I realized that it would have made a great short problem for my Free Speech Law exam -- an exam that I need to write by tomorrow morning, and on which I'm still suffering a little bit of writer's block. But of course it was too late; I'd already blogged half the answer, and some of my students may well be reading my blog. Rats!

Drudge reports:

Government officials are reviewing a skit which aired on [Air America] Monday evening . . . .

The announcer: "A spoiled child is telling us our Social Security isn't safe anymore, so he is going to fix it for us. Well, here's your answer, you ungrateful whelp: [audio sound of 4 gunshots being fired.] Just try it, you little bastard. [audio of gun being cocked]."

The audio production at the center of the controversy aired during opening minutes of The Randi Rhodes Show.

"What is with all the killing?" Rhodes said, laughing, after the clip aired.

"Even joking about shooting the president is a crime, let alone doing it on national radio . . . we are taking this very seriously," a government source explained. . . .

A brief First Amendment analysis: Joking about shooting the President certainly isn't a crime as such; threatening to shoot the President is. Threats (whether against the President or not) are indeed constitutionally unprotected, but to be a punishable threats, a statement must at least be understood by a reasonable listener as a true threat, rather than just hyperbole (or humor). Here's an excerpt from the leading case, Watts v. United States (1969):

[D]uring a public rally on the Washington Monument grounds [in 1966, t]he crowd present broke up into small discussion groups and petitioner joined a gathering scheduled to discuss police brutality. Most of those in the group were quite young, either in their teens or early twenties. Petitioner, who himself was 18 years old, entered into the discussion after one member of the group suggested that the young people present should get more education before expressing their views.

[P]etitioner responded: “They always holler at us to get an education. And now I have already received my draft classification as 1-A and I have got to report for my physical this Monday coming. I am not going. If they ever make me carry a rifle the first man I want to get in my sights is L.B.J.” “They are not going to make me kill my black brothers.” On the basis of this statement, the jury found that petitioner had committed a felony by knowingly and willfully threatening the President....

We do not believe that the kind of political hyperbole indulged in by petitioner fits within [the term "threat"].... The language of the political arena ... is often vituperative, abusive, and inexact. [Watts'] only offense here was “a kind of very crude offensive method of stating a political opposition to the President.” Taken in context, and regarding the expressly conditional nature of the statement and the reaction of the listeners, we do not see how it could be interpreted otherwise....

My sense is that the same applies here; and while the Secret Service does need to investigate all such statements, out of an abundance of caution, the speakers can't be prosecuted given the context.

The speakers may also have another defense: Virginia v. Black (2003) also held that a statement can't be a punishable threat unless it's made "with the intent of placing the victim in fear of bodily harm or death." Thus, following Black, a statement is a punishable threat only if a reasonable listener would understand it as a threat of attack and the speaker intended that the listener get that impression.

Before Black, there had been a lot of debate about whether such an intention is required, or whether negligence on the speaker's part is enough. (Under the negligence test, it's enough that a reasonable speaker would have recognized that a reasonable listener would see the statement as threatening, even if that wasn't the speaker's purpose. This is something of an oversimplification of the lower court caselaw, but it's close enough for our purposes, I think.) Oddly enough, the Supreme Court didn't discuss this debate, or explain why it was taking one side of it. Nonetheless, the Court did announce the likely-understanding-plus-intent requirement, and a plurality later kept stressing the speaker's intent as an important part of the analysis. So I think the Air America speakers are probably protected from legal punishment on those grounds, too (though of course this assumes that the speakers weren't intending to put the President or the Secret Service in fear, and that reasonable listeners would indeed understand the statement as a joke).

This may leave some people with the question: What about all those signs in airports saying that even joking about bombs is a crime? I can't tell you for sure whether, following Black, someone can be prosecuted for his joke when (1) he doesn't intend to threaten anyone with the joke but (2) the joke is understandably interpreted as possibly serious. Perhaps courts would draw some distinction based on the joke's likely lack of political content, and the joke's potentially highly disruptive effects (the area may have to be closed down while the potentially bomb-filled luggage is isolated and then destroyed, and so on). But the speaker would have a decent defense based on Black, I think. And in any event, the Air America statement — a statement said about the President in a political context — would probably be protected by Watts, Black, or both.

Juan writes:

I think it is fair to say that at least some Democratic Senators — and some outside interest groups — have taken the position that an individual who accepts the Catholic Church's teaching on abortion, and who therefore believes that abortion is murder, is unfit for the federal bench. While I would not call this anti-Catholic bigotry, it is quite anti-Catholic in effect.

If a group specifically said that it opposed nominees who accept the Catholic Church's teaching on abortion — but not people who are equally anti-abortion but not Catholic — then it would indeed be anti-Catholic bigotry. But I take it that Juan's point is broader still: Any group that opposes nominees who believe abortion is murder, even if they do that without regard to the nominee's religion (or lack of religion), is setting up a test that's "anti-Catholic in effect."

I think, though, that "anti-Catholic in effect" isn't a helpful term here, because "anti-X" generally suggests hostility to Xs, or at least a deliberate desire to exclude Xs as Xs, and not just the adoption of a neutral rule that ends up burdening X. I wouldn't, for instance, call a university's decision to admit students based on high school GPA and SAT scores "anti-black in effect," even if it has the effect of excluding many black applicants (and a higher fraction of those applicants than of Asian or white applicants). Likewise, I don't think that we'd call professional sports teams "anti-woman in effect" simply because their selection criteria lead them to be all-male, unless we thought that the criteria were deliberately stacked against women.

More to the point here, say that President Bush decides that he's tired of anti-death-penalty judges who either vote to strike down the death penalty generally, or undermine it in lots of ways short of striking it down altogether. He says that he will not nominate any appellate or Supreme Court judges who are on the record as being strongly morally opposed to the death penalty. Would we call this "anti-Catholic in effect"?

I don't think so; again, "anti-Catholic" suggests opposition to someone because of his Catholicism. We should reserve the term, which has the connotation of hostility, to situations that do exhibit such hostility. "Has the effect of excluding Catholics / blacks / women" is much more accurate, both in its denotation and its connotation.

UPDATE: I had meant to note this in the original post -- I realize that Catholics are not doctrinally forbidden from supporting the death penalty, but there is, as I understand it, a considerable amount of modern teaching against it. The refusal to nominate judges who support the death penalty thus won't eliminate all Catholics (though neither would the refusal to confirm judges who deeply oppose abortion, since some Catholics are pro-choice, though there they are indeed running up against official church doctrine), but it would have a substantial disparate impact on Catholics, as I understand it. But in any event, one could substitute some other religious group that does oppose, as a matter of doctrine, the death penalty; I believe, for instance, Quakers are such a group -- would one call the policy I discribed "anti-Quaker in effect"?

Stephen Bainbridge writes:

I was persuaded by [Stop the Bleating]'s take on this issue:

If Schumer truly does intend to create a test for judges on the basis of their deeply held moral beliefs about abortion, that test arguably isn't job-related. I would argue that since judges aren't paid to enact their personal preferences — moral or otherwise — into law, and many of them respect their limited role in our system, a judge's personal moral beliefs should be a concern only if there's some concrete reason to suspect they'll unduly influence the performance of his judicial duties, i.e., if he's likely to substitute his own moral judgment for high quality legal reasoning, or his reasoning is likely to be heavily colored by his personal preferences.

Well, one can argue that; but how persuasive is that argument? Judges do have the power to implement their moral beliefs into law. Obviously, many have exercised this power in the past, and there's little reason to doubt that they'll do it in the future.

Even those judges who try very hard not to let their moral beliefs affect their legal judgments may end up doing it inadvertently. Even if judges sincerely try to be bound by text and original meaning, constitutional text is often not very specific, and the original meaning is often highly ambiguous. Even if they sincerely try to be bound by precedent, the precedents can often be interpreted in different ways, and one's moral beliefs have a tendency to influence which interpretation one chooses. And sometimes the text, original meaning, and precedent, even when interpreted with perfect honesty, leave questions unresolved. At that point, judges have to make up some of the rules, and it's very likely that their moral beliefs will influence that process. You don't have to like this, but that's the reality of how judges operate.

What's more, you can't fire judges. In normal employment, you could argue that the employer should set aside prospective employees' beliefs, so long as the employees agree to follow the rules; then, if the employees show that their moral judgments are interfering with their jobs, they could be fired. (I don't think the employer should have such an obligation, but it's at least a plausible one to impose, given religious accommodation law and religious disparate impact law.) But this won't work for judges: If it turns out that a judge does deliberately or inadvertently let his moral views mold his legal decisions, he can't be removed short of impeachment — which is not a procedure that's likely to be used, or that we'd like to see frequently used.

Consider an analogy: Say that you support the death penalty, and you're the President deciding whether to appoint a judge, a Senator deciding whether to confirm him, or a voter deciding whether to vote for him (if he's a candidate in a state in which judges are elected). The judge is on the record as saying that the death penalty is murder, and that the court decisions upholding it are an abomination; but the judge has a reputation as an honorable man, and he promises not to let his moral judgment influencing his legal decisionmaking.

Would you feel obligated to take him at his word, and ignore his statements of his moral views, since otherwise your decision might have a "disparate impact" on judges who belong to those denominations that oppose the death penalty? Or would you feel that it's at least permissible for you to have reservations about the judge because of those views, regardless of whether those views have a religious foundation (even if you're ultimately willing to set aside those reservations for other reasons)? I think the answer is that such reservations are indeed quite permissible, even if the judge is entirely honorable.

None of this suggests that the filibustering of the judicial candidates is proper; there are all sorts of other plausible arguments against it. I'd like to see the Senate confirm more of President Bush's controversial nominees. But disagreement with a judicial candidate's strong moral views on legally significant topics is not religious bigotry, and can't be faulted on "disparate impact" grounds.

I was just rereading one of my favorite court opinions — Justice Jackson’s dissent in United States v. Ballard, 322 U.S. 78 (1944) — and I enjoyed it so much that I thought I’d blog it. Here’s the background, from the majority:

Respondents were ... convicted for using ... the mails to defraud ... by organizing and promoting the I Am movement through the use of the mails. The charge was that certain designated corporations were formed, literature distributed and sold, funds solicited, and memberships in the I Am movement sought “by means of false and fraudulent representations, pretenses and promises.” The false representations charged ... covered respondents’ alleged religious doctrines or beliefs.... The following are representative:

“that Guy W. Ballard, now deceased, alias Saint Germain, Jesus, George Washington, and Godfre Ray King, had been selected and thereby designated by the alleged ‘ascertained masters,’ Saint Germain, as a divine messenger; and that the words of ‘ascended masters’ and the words of the alleged divine entity, Saint Germain, would be transmitted to mankind through the medium of the said Guy W. Ballard;

“that Guy W. Ballard, during his lifetime, and Edna W. Ballard, and Donald Ballard, by reason of their alleged high spiritual attainments and righteous conduct, had been selected as divine messengers through which the words of the alleged ‘ascended masters,’ including the alleged Saint Germain, would be communicated to mankind under the teachings commonly known as the ‘I Am’ movement;

“that Guy W. Ballard, during his lifetime, and Edna W. Ballard and Donald Ballard had, by reason of supernatural attainments, the power to heal persons of ailments and diseases and to make well persons afflicted with any diseases, injuries, or ailments, and did falsely represent to persons intended to be defrauded that the three designated persons had the ability and power to cure persons of those diseases normally classified as curable and also of diseases which are ordinarily classified by the medical profession as being incurable diseases; and did further represent that the three designated persons had in fact cured either by the activity of one, either, or all of said persons, hundreds of persons afflicted with diseases and ailments.” ...

[T]he indictment ... alleged: “At the time of making all of the afore-alleged representations ..., ... the defendants ... well knew that [the] representations were false ... and were made with the intention on the part of the defendants ... to obtain from persons intended to be defrauded by the defendants, money, property, and other things of value ....” ...

The majority reasoned, I think quite correctly, that a court couldn’t inquire in such a fraud case whether the defendants’ religious beliefs were true, but it could inquire into whether they were sincerely believed. This is still the legal rule, and it may well be correct. Among other things, courts would have to decide the sincerity of religious belief in at least some situations, for instance when people are claiming some religious or conscientious exemptions (say, to the draft), whether those exceptions are constitutionally mandated or statutorily provided.

Still, I think that Justice Jackson’s dissent, whether you agree with it, is a model of clear, concrete, plainspeaking eloquence. Anyone who’s interested in how to use facts and everyday experiences in crafting an argument (not an argument that won any other adherents on the Court, but I think still an excellent one) should read it:

Stephen Bainbridge responds to Cathy Young's column that I noted and largely agreed with; Cathy responds in turn. I think Cathy's response is quite right.

UPDATE: Stephen has a further response, but I think Cathy is still correct here.

Jonathan Zittrain at Harvard writes:

I'm teaching a special session of my spring cyberlaw class later this afternoon with Jimbo Wales, founder of the wikipedia. In the spirit of a wiki, please feel free to tune in. There will also be an opportunity to submit questions and comments remotely. The class is today, Monday, April 25, 2005, from 4:30-6:30 EST. Webcast and participation tool [here].

I imagine much of the session will be focused on the sustainability of a completely open content-generation model; the use of quasi-law to moderate users' submissions, especially as more and more people seek to influence the Wiki's content for reasons other than refining a "neutral point of view" on useful facts; and the implications of the Wikipedia's apparent success for other forms of content generation.

The dominant American style is to include commas and periods within quotation marks even when that punctuation doesn't belong to the quotation. Thus, you'd write

This is an example of what the Court has called "the chilling effect."

rather than

This is an example of what the Court has called "the chilling effect".

The latter style isn't wrong, and some prefer it because it seems more logical; my Oxford English Grammar says that it's the norm in British English. But most American publishers always put the period and the comma inside the quotation mark.

That much most people know, but quite a few editors erroneously generalize this to semicolons and some other punctuation marks. The rule for those punctuation marks is that they are never moved before the quotation mark; they appear immediately before a quotation mark only when they appear in the quoted material. Thus,

Right: This is an example of the "chilling effect"; there are others.

Wrong: This is an example of the "chilling effect;" there are others.

Right: Do you think this is an example of the "chilling effect"?

Right: The Court asked, "is this an example of the chilling effect?" [The question mark is part of the quoted material.]

Wrong: Do you think this is an example of the "chilling effect?"

Remember — only commas and periods get moved within quotation marks. This is the American norm, and the one to which most readers' eyes are used. Some day the error of today may become common enough that it becomes standard usage for the future; descriptivist that I am, I won't be able to condemn such a usage as "wrong" then. But right now, as best I can tell, the moved semicolon/colon/question mark/exclamation point is still a rarity, and seen as an error rather than an alternative style. That's what the Authorities (which are a decent guide of what current usage is) say, and it's my sense of what's actually done by publishers. And even if you want to be a maverick yourself, don't change the author's correct semicolons-outside-quotes into your own idiosyncratic semicolons-inside-quotes.

Why, by the way, were commas and periods ever moved within quotation marks? I'm not positive, but the most plausible account that I've read is that this just looks better in proportionally-spaced typeset fonts. UPDATE: Several readers e-mailed with an alternate explanation, which is summarized here:

According to William F. Phillips . . ., in the days when printing used raised bits of metal, "." and "," were the most delicate, and were in danger of damage (the face of the piece of type might break off from the body, or be bent or dented from above) if they had a '"' on one side and a blank space on the other. Hence the convention arose of always using '."' and ',"' rather than '".' and '",', regardless of logic.

Reader Jason Walta passes along this item from The Advocate:

The Defense Department has sharply contradicted reports in The New York Times and other media that sodomy would no longer be categorized as a criminal act in the U.S. military.

Defense Department spokesman Lt. Col. Joseph Richard told Advocate/OutQ News that the Pentagon is only recommending that the laws prohibiting consensual sodomy be moved from one section of the Uniform Code of Military Justice to another.

"We have placed it where it belongs, in the Manual [for] Court[s-] Martial. Acts committed under that article are prejudiced to good order and discipline in the military. We have not decriminalized sodomy," he said. . . .

[T]he Pentagon believes that its specific claim that sodomy between service members is detrimental to "good order and discipline" will be enough to keep the ban from being struck down [as unconstitutional]. . . .

I'm puzzled, though: The current ban prohibits all "unnatural carnal copulation," whether with another service member or with one's non-service-member spouse or lover. Is the military planning to limit sodomy to nongenital sex among service members? Will it limit it only to nongenital sex that is within a unit or the chain of command and thus potentially detrimental to "good order and discipline," or is its claim that nongenital sex with any fellow service member, even someone in a completely different unit, or possibly even with a non-service-member, is somehow prejudicial to good order and discipline?

Also, why would nongenital sex be more prejudicial to good order and discipline than genital sex? I assume (though maybe I'm mistaken) that genital sex among service members is not a crime, unless there is something that makes it a potential threat to good order and discipline (for instance, that it's within the chain of command, or of course that it's nonconsensual).

In any event, as usual with press accounts quoting or paraphrasing people, take all this with a grain of salt; some important details may have been omitted or misreported.

UPDATE: Reader Paul Johnson, a former military lawyer, suggests that the change may indeed be to decriminalize nongenital sex except when it's detrimental to good order and discipline (or brings discredit on the armed forces). He suspects that the Pentagon may be planning to repeal Article 125 (as the New York Times reported) but to shift some sodomy prosecutions to Article 134, which prohibits "all disorders and neglects to the prejudice of good order and discipline in the armed forces" and "all conduct of a nature to bring discredit upon the armed forces." He also writes that "I don't see that genital sex and non-genital sex would be treated differently under Article 134 (except that genital sex between a married person and an unmarried person can also be prosecuted under Article 134 as adultery). If it's performed under circumstances that would be prejudicial to good order and discipline, or constitutes service-discrediting conduct, it's punishable under Article 134."

If this conjecture about what the Pentagon is planning — and again I stress the difficulty of speculating based on press accounts — then the New York Times article is largely right, the Advocate article is mistaken or at least incomplete, and the Pentagon's decision is indeed sensible.

[UPDATE: For a report that the Pentagon is not planning to decriminalize consensual sodomy, see here.]

The New York Times reports:

The office of the general counsel at the Pentagon has proposed decriminalizing consensual sodomy among adults . . . .

Under Article 125 of the Uniform Code of Military Justice, it is a crime to engage in "unnatural carnal copulation with another person of the same or opposite sex," even with mutual consent.

The changes proposed by the Pentagon's lawyers would narrow the definition to prohibit acts of sodomy with a person under age 16 or acts "committed by force." . . .

While the change would not alter the military's policy against gay men and lesbians in uniform, advocates for gay rights said that recent court decisions and the proposed changes to the military code could have broader implications for gay men and lesbians in the armed forces. . . .

I'm quite skeptical of the arguments against allowing gays in the armed forces, but at least there's a plausible — though in my view on balance unpersuasive — justification for that policy: the concern that homosexual relationships may interfere with discipline and cohesion in all-male or nearly all-male units. (I don't see how that argument could justify the exclusion of lesbians, but that's a matter for another day.)

What plausible relation, though, could there possibly be for banning nongenital heterosexual sex — including oral sex, which the overwhelming majority of heterosexuals engage in — among servicemembers? How does banning our soldiers from having oral sex make them a more effective fighting force? How is the rule anything other than a waste of time, money, and military resources if enforced, and anything other than a mockery if unenforced?

The only explanation I've ever heard for such rules is that they make it easier to prosecute nonconsensual sex when the evidence of lack of consent is weak. But that strikes me as a lousy justification, a recipe for injustice against perfectly innocent, decent people who happen to get on the wrong side of a prosecutor or a commanding officer. And it seems to me that in the military even more than in civilian life, the rules should be enforced, and rules that we aren't prepared to enforce (at least in the normal cases, setting aside the exceptional ones) shouldn't be rules.

Finally, I realize that the decriminalization of nongenital sex would indeed eliminate one argument against excluding practicing homosexuals. But if the real reason for the exclusion is the concern about unit cohension, then that's what the argument should be about — not the practicing homosexuals' violation of a rule that's pointless and that's routinely violated by most heterosexuals.

D.C. law holds manufacturers of semiautomatic guns liable when criminals use those guns to commit crimes in D.C., even though the manufacturers made and sold those guns entirely outside D.C. Last week, I complained about this; D.C., I argued, shouldn't be able to impose its policy judgments on behavior in other states:

You may have the perfect right to buy such a gun in some state (let's say Tennessee), sellers may have the right to sell it to you there, and Tennessee-based manufacturers may have the right to make it there, both under Tennessee law and under federal law. But because of the actions of the D.C. City Council, the manufacturers may find themselves having to stop selling the guns in Tennessee, for fear of being sued in D.C. Or they may at least increase the gun's price, which means that the D.C. City Council would have effectively imposed a tax on what happens in Tennessee. . . .

[I]t's wrong for the D.C. City Council, which represents about 0.2% of the U.S. population, to make rules that affect 99.8% of the population. That's precisely the sort of burden on extra-state behavior that Congress has the power to lift (even if the burden is imposed by a quasi-sovereign state, rather than by the D.C. City Council, which is directly within Congress's plenary power), and that Congress indeed should lift.

This reasoning, of course, would apply equally to other products, such as alcohol (which I mentioned in my original post) or whatever else.

But what about states' rights, some readers asked? Here's one message that I got:

[A]llowing federal preemption of such [product liability] claims would vastly expand federal power into an undisputed traditional domain of state law — not the kind of thing I expected a defender of states' rights (such as yourself) to say.

My position, though, is all about protecting states' rights to govern behavior within their own states. I do generally think that on many (though not all) issues Oregonians should be deciding what's allowed in Oregon and Tennesseans should be deciding what's allowed in Tennessee. Rules of behavior in Tennessee should generally be set by the Tennessee Legislature, not the federal Congress.

But rules of behavior in Tennessee shouldn't be set by the California Legislature or the D.C. City Council, either. And that's precisely what the D.C. statute that I faulted does: By imposing tort liability on behavior in Tennessee, it operates as a tax, a regulation, or even (practically) a prohibition on what Tennesseeans can do in Tennessee.

It's a violation of states' rights, not a vindication, for one state to impose such regulations — whether framed as tort liability or otherwise — on behavior in another state. (Let's treat D.C. as a state for these purposes, since my call for federal preemption would apply equally if it had been a state.) Likewise, it's a vindication of states' rights, not a violation, for Congress to step forward to protect the rights of other states against this sort of unilateral imposition by D.C. law, or, for instance, by California law that is interpreted as holding Glock liable for Glock sales practices in Washington State.

Finally, I would caution against appeals to tradition here. It's true that most tort law has traditionally been state law; but that's partly because historically most tort liability has involved either entirely intrastate behavior or behavior that's largely intrastate. In particular, I don't think there has been a long tradition of tort law imposing liability on defendants' purely out-of-state behavior in the first place, especially when defendants' behavior was lawful in the state in which it took place.

Moreover, as the economy has gotten more nationally integrated, Congress has indeed preempted state tort liability in many fields. This is clearest in sectors that have heavily involved interstate behavior, such as air travel; but it has happened even in areas where much more of the behavior is intrastate, such as (in considerable measure) labor law, employee benefits law, and more. Whether these federal actions were right or wrong, they must surely be counted when one is deciding what's "traditional" here.

Cathy Young writes:

On April 24, Senate Majority Leader Bill Frist is set, at the time of this writing, to participate in a "Justice Sunday" telecast at which America's most prominent evangelical leaders will lambaste the Democrats who are blocking conservative Bush nominees for federal judicial posts. A flier for the event, organized by the Family Research Council, decries "the filibuster against people of faith," accusing Democrats of an anti-religious bigotry comparable to "racial bias." . . .

This is not the first time Republicans have made this charge. Two years ago, Senate Democrats blocked the nomination of Alabama Attorney General William H. Pryor Jr., an orthodox Catholic with strong antiabortion views who had described Roe v. Wade as an "abomination," to the US Court of Appeals for the 11th Circuit. Conservative activists complained of anti-Christian bigotry and ran an ad showing a "Catholics need not apply" sign over a courthouse door.

Of course, the issue isn't simply "faith," but a nominee's views on public policy issues. A pro-abortion-rights litmus test for federal judges may be wrong, but it's preposterous to claim, as some conservatives have, that it amounts to a religious test that disqualifies "serious" Catholics and evangelical Protestants from public office. Surely, it would apply just as much to atheists or agnostics who oppose abortion on secular grounds.

What if the issue was not abortion? Let's say that a Democratic president had nominated to the federal bench a judge known for passionate, Christian-based hostility to capital punishment. Would it be "anti-Christian" for Republicans to oppose the nomination? To take an even more ridiculous example: Would it be "religious bigotry" to oppose the presidential candidacy of a devout Quaker who declared that his policies would be rooted in his religious belief that all use of military force is wrong? . . .

Young's analysis strikes me as quite right. One can plausibly fault the Senate Democrats' opposition to the President's judicial nominees on various grounds, but "religious bigotry" is not one of them. As best I can tell, the Senators care about the nominee's politics, ideology on contested legal questions, and likely future votes on such questions, not about the nominee's religion.

Of course, there may well be a correlation between certain political or judicial views and religion. But as Young's examples show, this doesn't turn political and ideological hostility -- whether that hostility is justified or excessive -- into religious bigotry.

as reported by Stephen Bainbridge.