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Saturday, October 28, 2006
I Haven't Been Closely Following the Duke Lacrosse Team Alleged Rape Case,
partly because it's the sort of matter on which one needs to know a good deal of facts to have a sensible opinion. But this story struck me as quite odd; could any prosecutors among our readers comment on it?
The district attorney prosecuting three Duke lacrosse players accused of raping a woman at a team party said during a court hearing Friday that he still hasn't interviewed the accuser about the facts of the case.
"I've had conversations with (the accuser) about how she's doing. I've had conversations with (the accuser) about her seeing her kids," Mike Nifong said. "I haven't talked with her about the facts of that night. ... We're not at that stage yet."
Nifong made the statement in response to a defense request for any statements the woman has made about the case.
I would have thought that in a rape case, interviewing the victim would be among the first things the prosecutor would do. Of course, if she's in intensive care for her injuries, he might want to put it off briefly; but even if she's deeply psychologically traumatized, he'd want to talk to her at some point, the sooner the better, even if he has other witnesses he can count on. Am I mistaken?
Election Day Bloggers' Legal Guide:
Lauren Gelman of the Center for Internet and Society at Stanford Law School passes along this item:
Lots of bloggers are planning to cover the 2006 general elections on November 7. But what are the legal issues that you need to understand?
Such as: Can you be in the voting area except to vote? (Not in
Delaware) Can you ask people how they voted? (Not within 50 ft of polling place in Rhode Island). Can you take photos? (In CA it is illegal to photograph, videotape or otherwise record a voter entering or leaving a polling place). And so on.
Student Fellows at Stanford University Law School's Center for Internet and Society will be answering those kinds of questions and more in coming days. Do you have one? Ask it here. We'll compile and publish a Frequently Asked Questions (FAQ), and post it before the election.
Please note that some election laws vary from state to state. We ask you to tell us your state so we can answer the questions based on the laws of your state. We will also try to answer the question for other states as time permits.
"Return to the Court With a Verdict of Guilty":
That's what a Canadian judge told the jury in a marijuana possession case, where the defendant claimed he possessed the marijuana for medical reasons (though he apparently didn't qualify for some reason for Canada's medical marijuana exemption): The judge instructed the jurors "to retire to the jury room to consider what I have said, appoint one of yourselves to be your foreperson, and then to return to the court with a verdict of guilty."
Yesterday, the Supreme Court of Canada reversed the conviction (R. v. Krieger), concluding -- as do American courts -- that the right to criminal jury trial means that the judge may not categorically direct the jury to render a guilty verdict, even if the judge believes that the factual evidence against the defendant is overwhelming.
Thanks to R.G. Newbury for the pointer.
Friday, October 27, 2006
"The Loving analogy is complete":
Jim Chen on New Jersey:
In this instance, the Loving analogy is complete.
I take Loving personally. It was decided before I reached six months of age. I came of age in the geographic center of the American region that historically sanctioned extraordinary, even violent, measures to prevent even the hint of interracial mingling. I was born where all my immediate ancestors had been born themselves, an island at the eastern edge of World Island. My wife traces most of her ancestry to an island at the western extreme. The suggestion that these circumstances of ancestry, none of which either of us chose or could ever control, could bar us from being married is singularly offensive.
And so too is the suggestion that the sex of the members of a committed couple should determine that couple's entitlement to full recognition and protection under the law....
When this generation shall have passed from this earth, God and/or posterity will judge us as severely for our unwillingness to confess the legitimacy of homosexual love as we today judge those who resist the rightness — legal, moral, and spiritual — of Loving v. Virginia. Yesterday Massachusetts, today New Jersey, tomorrow America from sea to shining sea.
A most ingenious paradox:
This is another old paradox, which I'm posting mostly because I like the author's style in presenting it:
In the Hanged-Man Paradox, a man, K, is sentenced on Sunday to be hanged, but the judge, who is evidently French or enamored of the French wit for surprising those sentenced to the guillotine in their last moments, orders that the hanging take place on one of the next five days at noon. Smiling wistfully, he says to K, "You will not know which day until they come to take you to the gallows."
K, who has evidently been condemned for logical perversions, cannot prevent his mind from nevertheless trying to figure out in advance which day will be his last. He quickly realizes it cannot be Friday, because if he has not been hanged by Thursday noon, he will know nearly a full day before they come to get him that he will be hanged on Friday. He is simultaneously pleased at his cleverness and depressed that he has pushed his date with the gallows closer to Sunday.
Soon enough, he realizes that if Friday is logically excluded, then so is Thursday, because if he has not been hanged by noon Wednesday, he will know that, Friday being excluded, his date must be Thursday. In like manner, he can exclude Wednesday, Tuesday, and Monday. As a logician, he smugly concludes that the judge's decree is false. On Thursday noon he is hanged. The paradox is that he is surprised when they come to take him to the gallows.
(One can easily think up less macabre relatives of the Hanged-Man Paradox, such as the Surprise Quiz, a device with which we are all familiar and by which no doubt many of us have illogically been surprised.)
Russell Hardin, Collective Action 147 (1982) (paragraph breaks added). (Of course this isn't a real paradox — just a cautionary tale.) Hardin concludes (p. 148): "His problem was that facing a hangman focused his mind a little too admirably."
P.S. On people named K, see Kozinski & Volokh, The Appeal, 103 Mich. L. Rev. 1391 (2005).
UPDATE: AnonVCfan refers, in the comments, to the "less refined, ugly cousin of this paradox," the famous dialogue from The Princess Bride. I'll reproduce here what I wrote in the comments: "I see the Princess Bride dialogue as illustrating the fact from Game Theory that the game of Matching Pennies has no Nash equilibrium in pure strategies. The Hanged Man's paradox is 'simpler' in a way, because all you need to refute it is elementary logic."
UPDATE 2: Just so no one gets confused here — this paradox is only "simpler" in a way. It's got an intuitive explanation, but in fact it's very hard, and logicians have written like a hundred articles about it. For a good overview, see this paper by Tim Chow. I can follow the gist of it, but the technical aspects are beyond my knowledge of logic.
Federal Court Enjoins Ohio Voter ID Rule:
Today's Cleveland Plain Dealer reports:
A federal judge Thursday evening blocked enforcement of new identification requirements for absentee voters, agreeing that the state's voter ID law is vague, confusing and unevenly applied by Ohio election boards since early voting began this month.
"Absentee voters are suffering irreparable harm right now," said U.S. District Judge Algenon L. Marbley in announcing his decision. . . .
The emergency order will be in effect until Nov. 1 when Marbley will hold a full hearing that will also address whether the ID requirements should be suspended at the polls on Nov. 7.
The Associated Press further reports:
Under the law, an absentee voter must submit a written application that includes a driver's license number, the last four digits of the voter's Social Security number, or a copy of a current photo ID, military identification, utility bill or bank statement.
Lawyers who filed the lawsuit said the law, which also requires voters to produce identification when they check in at polling stations, is unconstitutional because of the inconsistencies in the way it is being enforced.
The secretary of state's office has argued that county boards of elections should have a clear understanding of the law because the state sent instructions to them at least twice since May.
Ohio State's Election Law @ Moritz site has lots more details, including copies of the orders and some initial commentary.
Percolation Bleg:
My colleague Craig Lerner writes with the following question:
Can people please point me to cases in which the Supreme Court let
a circuit split "percolate" (that is, fester) for years and years,
before it bothered to address the issue? A recent example would be the
2005 case Dura Pharmaceuticals v. Broudo, where the circuits were split
for nearly a decade on the meaning of "loss causation" in securities
cases.
If you can point to any such cases, please post them in the Comments or contact Craig directly.
Is Ethanol Too Corrosive?
Politicians love to fall all over themselves to promote the ethanol use. In 1990, this resulted in Clean Air Act provisions that compromised the effectivenes of fuel content requirements and led to widespread MTBE water pollution. (While MTBE was the pollutant, the provision that led to widespread MTBE use was pushed by the ethanol lobby.)
The New York Times reports on another potential problem with E85 ethanol fuels: their corrosivity. E85, a blend of 85 percent corn-based ethanol and 15 percent gasoline, could be eating away at metal and plastic parts in pumps being used to dispense the fuel at gasoline stations, Underwriters Laboratories, the private product-safety testing group, said this month. . . .
Underwriters Laboratories, which certifies the safety of everything from toasters to televisions, has temporarily withdrawn authorization for the U.L.-approved label on parts used in E85 dispensers. Those dispensers, it turns out, were modified from regular gasoline dispensers and were certified only for a maximum of 15 percent ethanol concentration; U.L. said it had never certified any E85-specific pumps.
The reversal has heightened concerns among some oil companies about the safety of E85 pumps on the market and threatens to slow the proliferation of the fuel, which automakers, President Bush and Midwest lawmakers are pushing as a homegrown alternative to gasoline.
Thursday, October 26, 2006
Moyers Calls His Lawyers:
Bill Moyers took extreme exception to Dr. E. Calvin Beisner's suggestion that Moyers sought to use his television programs to help Democrats retake Congress -- and threatened a defamation suit. Dr. Beisner, through counsel, rejects Moyers' demand for a retraction and "desires to attempt to restore that relationship outside of the civil courts as Christians are admonished to do." Beisner adds, "While I understood from the conversation that he was a Democrat, I accept his representation that he is an independent." More on Instapundit here and Southern Appeal here.
Which One of These Is Not Like the Others?
The brief filed this week on behalf of the Alliance of Automobile Manufacturers, Engine Manufacturers Association, National Automobile Dealers Association and Truck Manufacturers Association in Massachusetts v. EPA (the global warming case, about which I'll have more to say later), features a very high-powered roster of attorneys. Among those listed on the brief are former independent counsel and Bush (I) solicitor general Kenneth Starr, former Bush (II) Solicitor General Ted Olson, filibustered Bush (II) judicial appointee Miguel Estrada, and Democratic candidate for State Treasurer of Ohio Richard Cordray.
Sixth Circuit Habeas Happenings:
There was lots of activity and acrimony relating to habeas corpus petitions on the U.S. Court of Appeals for the Sixth Circuit last week. On Thursday, the Court rejected a petition for rehearing en banc in Keith v. Mitchell over the dissent of four judges. The original three-judge panel split 2-1, with Chief Judge Boggs writing the majority for himself and Judge Gibbons and Judge Clay dissenting. Judge Clay dissented again from the denial of en banc review, joined by Judges Moore, Martin, and Cole. His dissent argued that Kevin Keith received constitutionally inadequate assistance of counsel during the mitigation phase of his trial.
Judge Martin wrote separately “to express again [his] dismay and frustration with the shortcomings of our approach to reviewing death sentences through habeas corpus appeals,” and to suggest that legal representation in capital cases is potentially unconstitutional. Martin continued: members of this Court have gone on record to second-guess the jurisprudence of the Supreme Court, and this Court, that requires counsel to conduct an adequate investigation of potential mitigating circumstances for purposes of capital sentencing, and mandates the reversal of convictions where this does not occur. [Here Martin cites the opinions by Chief Judge Boggs and Judge Suhrheinrich in Poindexter v. Mitchell, which I covered here.] This reasoning strikes me as demonstrating callousness and possible animosity toward the Sixth Amendment right to counsel. Martin further intimated that this “animosity” likely influenced the outcome in this case.
On the same day, in Apanovitch v. Houk, the Sixth Circuit reversed and remanded the district court’s denial of Anthony Apanovitch’s habeas petition “[i]n light of the state’s apparent failure to provide potentially exculpatory materials to Apanovitch prior to the filing of his petition” and the availability of evidence that had not undergone DNA testing. The panel’s unanimous opinion was written by Chief Judge Boggs, joined by judges Daughtrey and Moore.
On Friday, a little bit of disagreement resurfaced on the Sixth, but not along the usual ideological lines. In Spisak v. Mitchell, the Sixth Circuit granted a death row inmate's habeas petition on the grounds that he received ineffective assistance of counsel during the mitigation phase and the judge gave improper jury instructions. If nothing else, "the decision is worth a read to see just how ineffective a capital attorney can be," observes Robert Loblaw on the Decision of the Day blog.
The majority opinion in Spisak, written by Judge Clay, rejected the inmate's other claims. Judge Moore wrote an opinion dissenting in part, as she would have granted the petition on additional grounds, specifically "the trial court’s exclusion of expert testimony and evidence regarding Spisak’s insanity defense and the trial court’s refusal to submit the insanity defense to the jury."
Given that the panel of Judges Clay, Daughtrey and Moore was, in Loblaw's words, "every habeas petitioner’s dream," and not representative of the current composition of the Sixth Circuit on habeas issues these days, it will be interesting to see whether the state seeks en banc review.
[Links via Decision of the Day.]
Ohio Supremes Narrowly Uphold Charter Schools:
Yesterday, in State ex rel. Ohio Congress of Parents & Teachers v. State Board of Education, the Ohio Supreme Court narrowly rejected a series of constitutional challenges to charter schools. Voting 4-3, the Ohio Supremes held that the state legislature did not violate the Ohio state constitution when it enacted legislation authorizing the operation of charter schools, aka “community schools.”
Among other things, the plaintiffs alleged that charter schools violated the “Thorough and Efficient Clause” in Section 2, Article VI of the state constitution. This clause provides: The general assembly shall make such provisions, by taxation, or otherwise, as, with the income arising from the school trust fund, will secure a thorough and efficient system of common schools throughout the state. In the past, the Ohio Supreme Court had cited this provision as a basis for holding unconstitutional Ohio’s reliance upon property taxes to supplement educational funding because it results in funding disparities across school districts.
In an opinion written by Justice Lanzinger, the Ohio Supreme Court rejected the constitutional challenges, and held that the state legislature “has the legislative authority and latitude to set the standards and requirements for common schools, including different standards for community schools.” The majority further observed: The Ohio Community-Schools Act was drafted with the intent that parental choice and sponsor control would hold community schools accountable, in a fashion similar to traditional school management. In exchange for enhanced flexibility, community schools face heightened accountability to parents and sponsors. Either can threaten shutdown, sponsors by suspending operations . . . and parents by withdrawing their children. . . . Traditional schools, on the other hand, may not be shut down no matter how poorly they perform (although they will face decreased funding. The majority opinion was joined by Chief Justice Moyer and Justices Lundberg Stratton and O’Connor. Justices Resnick and Pfeifer dissented on the merits, while Justice O’Donnell dissented on the grounds that the appeal had been improvidently accepted.
Sentencing and Military Service:
Lawprofblogging rock star Doug Berman (Sentencing Law & Policy) writes:
Back in this post in April, I noted a story about the federal sentencing of Sergeant Patrick Lett, a defendant with 17 years of honorable Army service including two tours of duty in Iraq. There I asked whether a sentencing system that punishes prior bad deeds (via criminal history enhancements) ought also to reward prior good deeds through sentence reductions for, say, prior honorable military service. I suggested that, especially during a time of war, a sentence reduction based on honorable military service would tangibly recognize and reward service to our country.
Half a year later, a lot has happened in Patrick Lett's case. And, through a student, I have become indirectly and then more directly involved. Specifically, Lett ultimately received a below-guideline sentence (which allowed him to return to military service), but the Justice Department has appealed the reasonableness of his sentence to the Eleventh Circuit. Troubled greatly by DOJ decision to appeal and its overall treatment of Sergeant Lett, I have written and just filed (with the help of great folks at Holland & Knight) an amicus brief that assails the government's suggestion that Lett's sentence was unreasonable.
You can download the full amicus [brief here], and here's perhaps my favorite passage:
Attorney General Alberto Gonzales during his confirmation hearings last year stressed that prison is best suited "for people who commit violent crimes and are career criminals." Gonzales also asserted that a focus on rehabilitation for "first-time, maybe sometimes second-time offenders ... is not only smart, ... it's the right thing to do;" in his words, "it is part of a compassionate society to give someone another chance." Similarly, President George W. Bush in his 2004 State of the Union Address spoke passionately about the importance of showing compassion (and providing job training and placement services) to convicted offenders because "America is the land of second chance."
Judge Steele, in accord with these sentiments expressed by President Bush, Attorney General Gonzales, and Justice Department officials, obviously concluded that Patrick Lett deserved a second chance and that his non-violent first offense did not merit a long term of imprisonment. Given Lett's 17 years of honorable service to this country, which has included two life-threatening tours of duty on the Iraqi battlefields, it is hard to imagine an American more deserving of a second chance.
Ottolenghi on Anti-Semitism in Europe:
A brilliant analysis:
Even as much of the bickering is about terminology, the refusal to acknowledge a return of anti-Jewish prejudice in mainstream European society is about substance as well. Presuming that anti-Jewish prejudice can only manifest itself under the guise of a racially driven hatred that always and invariably leads to Auschwitz prevents European societies from acknowledging anything but the most glaring expressions of anti-Jewish outrage, preferring to downplay or ignore its other, and currently more widespread manifestations. It should be self-evident that between Auschwitz and social harmony there are infinite shades of grey. Yet the problem is precisely in recognizing that the racially-driven anti-Semitism that eventually begat Nazism was neither the first nor the only form of anti-Jewish prejudice in the history of Europe. And that immunization against it does not necessarily guarantee that other forms of prejudice will not recur.
The main difficulty thus is that today's prejudice focuses on Israel's role in modern Jewish identity. Despite its centrality in their communal identity, Jews are targeted for their attachment to and support for Israel and are asked to relinquish them in exchange for legitimacy. This demand, far from being seen as anti-Semitic, is vigorously pursued in certain quarters in the name of a liberal vision that rejects nationalism and religion as foundations of a collective identity. Europe is today guided by a post-national, secular and pacifist vision of international politics - a 'brotherhood of mankind' worldview. Once again, Jews seem out of step with the dominant ethos of society, and for this they are chastised and under pressure to conform.
Israel is perceived as evil, both for its conduct and for its essence as a nation-state. Israel's policies - understood as the product of Israel's Zionist identity - are blamed for the rise of anti-Semitism. According to such view, Israel today deserves utter condemnation. It follows that as 'accomplices' in Israel's behavior, Jewish supporters of Israel are blamed for their own suffering.
To shield themselves, Jews are asked to discard Israel from their own collective identity. This step, and an active denunciation of Israel as the antithesis of liberal and Jewish values (themselves, in this vision, synonymous with one another), will gain them full acceptance in European societies. Scores of Jews, especially among the intellectual and secular elites, indeed comply in public acts of mea culpa, thus lending an alibi to anti-Semites and gentrifying anti-Jewish prejudice in the process.
In some quarters of Europe today, the only uncontroversial way to express a proud Jewish identity is through the experience of suffering and victimization from the past, which the Holocaust has come to embody more than anything else. The Jew as a victim and as a witness of the quintessential, archetypal experience of suffering emerges as Europe's positive Jewish role-model, in sharp contrast to the Jewish pro-Israel or even Zionist voice, which Europe chastises for having betrayed both European values and what Europe sees as the authentic Jew.
I would add that Jews played a very specific role in the history of the European Left: they were victims of all the forces, religious and nationalist, that the Left opposed--consider Dreyfuss--and the plight of the Jews, in turn, was used to further the European Left's agenda of internationalism, secularism, and Socialism (and exploited by anti-Semites who opposed the Left's agenda). Jews overwhelmingly responded to the Left's aid by becoming part of the Left, and Jews disproportionately, though hardly universally, adopted the Left's agenda. The height of the Left's sympathy for the Jews came after the Holocaust, which itself was seen as a vindication of the Left's views, as they saw Naziism as an unholy alliance of all of their enemeies: capitalism, nationalism, and reactionary religion (which, they assert, with some justification, saw Naziism as a bulwark against Godless Communism).
But instead of remaining perpetual victims, the Jews started their own country. As a struggling social democracy that replaced a British imperialist presence, Israel initially received a fair amount of sympathy from the Left. But Israel today is no longer socialist, and its Jewish population is far more nationalist and religious than the average in Europe. Plus, Israel "occupies" land that the Left sees as belonging to Third World people, leading to the charge that Israel is itself a colonial power.
Worse yet, Jews, once the Left's most reliable allies, have been pulled away from that position, in part by the pull of nationalist and religious ideology spurred by Israel. Although unjustified, as Jews have no obligation to be the handmaidens of the left, it's not surprising that the European Left hates Israel, and resents the Jews.
Imagine if after the Civil Rights Movement in the U.S., African Americans would have, within a few generations, become far wealthier than whites, and suddenly become more economically conservative, and more supportive of right-wing Republican policies, than the average white! Do you think the American Left would have applauded their success, or do you think they would have resented African Americans for "betraying" their liberal allies, and seen prejudice against blacks increasing in their ranks? If you have any doubt, look at the way significant elements of the Left in the U.S. treat people like Condoleeza Rice, Clarence Thomas, and Thomas Sowell.
South Florida--Ground Zero of the Housing Bust:
Palm Beach County has an amazing forty-nine months worth of housing inventory for sale.
In August, WCI Communities, a luxury builder with much of its business in South Florida, reported that net condo sales were down 88% from a year earlier. (I think there's been an even worse report since then, but I can't find a link.)
Wow!
But perhaps not too surprising for South Florida, perhaps the most speculator-dominated market in the country, and the birthplace of "condoflip.com" in the Summer of 2005, which I presciently called a "sign of the housing apocalypse."
Burden of Proving Truth or Falsity in Defamation Cases in the U.S.:
Some comments in the Mental Tyranny of Legal Concepts made clear that this is not a broadly known rule, so I thought I'd just mention it here:
In a defamation case, at least when the speech is on a matter of public concern, "the plaintiff [must] bear the burden of showing falsity, as well as [the defendant's] fault, before recovering damages." This is true whether the plaintiff is a public figure or a private figure. See Philadelphia Newspapers, Inc. v. Hepps, 475 U.S. 767, 776 (1986). The common-law rule was that the defendant must prove truth, but Hepps changed that for First Amendment reasons.
Note: Before arguing whether this is the right result, please at least skim the Hepps reasoning.
Right to Sexual Autonomy and Prostitution:
A question to those readers who (1) support, as a constitutional matter, the recognition of a right to sexual autonomy -- because they think the federal constitution protects it (see Lawrence v. Texas), because they think some state constitutions that expressly mention a right of privacy (Alaska, California, Florida, Hawaii, Montana) protect it, or because they think the constitution should be changed to protect it, but (2) don't believe this right should extend to a right to patronize prostitutes: Why do you think so?
I can think of some possible answers. For instance, (A) perhaps you might think that the right to sexual autonomy is inherently limited in scope to those behaviors that seem likely to lead to an emotional relationship, prostitution is quite unlikely to do so, and while casual noncommercial sex is often unlikely to do so, the law protects such sex because of the difficulty of distinguishing it from emotionally significant noncommercial sex. (I think that's probably the best reading of Lawrence.)
Or (B) you might think that the right to sexual autonomy presumptively covers all sexual conduct, including prostitution, but this presumption is rebutted (perhaps under some "restriction narrowly tailored to a compelling interest" analysis) by the government interest in preventing the harmful consequences of prostitution, such as preventing the spread of sexually transmitted diseases, or preventing various harms to the prostitutes themselves. (Though, if you think this, do you think the government should have to show, in proving such narrow tailoring, that banning prostitution actually fights sexually transmitted disease and harm to the prostitutes better than allowing prostitution and regulating it would?)
Or (C) you might think that rights are generally limited only to noncommercial behavior. But, if that's so, do you likewise think that it would be constitutional for the government to bar payments of money to authors, publishers, criminal lawyers, private school teachers, abortion providers, contraceptive vendors, and the like?
In any case, please let me know your views, whether they fall in these categories, or whether they're something else altogether. I'm not asking this to try to disprove the propriety of the sexual autonomy right, or to try to prove that it indeed includes the right to engage in prostitution. As I mentioned, I think Lawrence may plausibly read as distinguishing the two for constitutional purposes; I even so note, tangentially, in an article I'm writing (an article that's not primarily about sexual autonomy or prostitution). But I'd like to hear what others think.
Blegging for Danes,
or at least Danish-speakers: Might anyone be kind to translate the key passages from today's Danish court decision rejecting a libel lawsuit against the Jyllands-Posten newspaper over the newspaper's publication of the Mohammed cartoons? Short excerpts are quoted in this BBC story, but I was hoping someone might be kind enough to provide a more detailed translation of the important parts. Many thanks in advance. In the meantime, here are some excerpts from the BBC account:
[The opinion stated that the cartoons were] "not offensive ... even if the text accompanying the pictures could be read as being derogatory and mocking .... Of course it cannot be excluded that the drawings offended some Muslims .... But there is no sufficient reason to assume that the cartoons are or were intended to be insulting ... or put forward ideas that could hurt the standing of Muslims in society."
[Earlier in the story:] "It is not up to the court to decide if Muslims will have hard feelings or not," Ameer ul-Azeem, spokesman for Jamaat-e-Islami, told the Associated Press news agency. His group belongs to an Islamic alliance that organised mass protests across Pakistan earlier this year.
In Syria, where a mob attacked and set fire to the Danish and Norwegian embassies in February, legislator Mohammed Habash said ... "[w]hat the newspaper did represents a true insult to millions of Muslims who do not follow Danish laws." ... Even if the text accompanying the pictures could be read as being derogatory and mocking, the cartoons are not offensive ....
[Plaintiffs] accused the paper of publishing text and cartoons which were "offensive and insulting" to Muhammad[, arguing that the cartoons] "attacked the honour of believers because they portrayed the Prophet as war-like and criminal and made a clear link between Muhammad, war and terrorism."
Unintended Consequences of Campaign Finance Reform:
It is hard not to shake your head at the absurdities spawned by campaign finance reform.
First there was the bizarre episode earlier this week where Bob Corker asked the RNC to stop running an ad criticizing his opponent that he characterized as "tacky and over the top." The RNC has finally relented. Assuming that Corker's protests are sincere, this sort of problem arises because campaign finance regulations prevent candidates from coordinating their messages with the parties. If Corker's protests are bogus, then this gives him plausible deniability to allow these sorts of attacks to be made while the candidate denies any responsbility for their content. Either way, it is hard to see how this improves political campaigns.
Today Brad Smith and John Lott note another major loophole in the campaign finance laws--if you own a media network. They cite the example of Air America, which just filed Chapter 11 and has failed as a business enterprise. But they suggest that it never really was a business enterprise, rather it was a political enterprise:
When is a campaign donation not a campaign donation? Apparently if you spend the money to run a radio program instead of paying for campaign ads that run on that same program. Just look at Air America. With $41 million in losses since 2004, and $9.8 million owed just to Robert Glaser, RealNetworks chairman, Democrats who bankrolled this "company" weren't so much investors as campaign contributors. The losses are seen as simple business ineptitude, but Air America effectively, and perhaps intentionally, cleverly avoided the campaign finance limits which Democrats had worked so hard to pass.
With McCain-Feingold's "hard money" donation limits of $2,000 per candidate and "soft money" limits to party campaign committees of $57,500, there is no way that Mr. Glaser or other wealthy Democratic donors could have legally given such large sums directly to Democrats. But Air America provided a vehicle for their multimillion-dollar political campaigns.
Take Al Franken's show last Friday, the very day the network was declaring bankruptcy. The program devoted two-and-a-half hours to "Meet the Democrats," where five U.S. House and Senate candidates explained why they were the people for the job. Two-and-a-half hours straight of candidates talking is hardly stirring radio, but it is the Democrats' version of religious radio. Hardly meant to make a profit, but there to inspire the troops. After all, when the network started in 2004, Al Franken announced that: "I'm doing this because I want to use my energies to get Bush unelected."
Since Air America started, successful radio entrepreneurs — most notably Rush Limbaugh — have argued that Air America never had a business model that made sense. But perhaps it had a model that made political sense.
The concern, of course, that rather than admitting defeat, the regulatory crowd will simply redouble their efforts to close these loopholes. Lott and Smith note that two radio talk show hosts in Seattle have already been found guilty of violating Washington state's campaign finance regulation.
Please be aware that improper Comments will be deleted.
Update:
A couple of Comments asked an interesting question, which is whether Corker's protests, and the RNC's decision to stop running the ads, violates the coordination rules of McCain-Feingold. So I sent the question along to Brad Smith one of the co-authors of the above-cited article (btw, Brad is also the Chairman of the Center for Competitive Politics, http://www.campaignfreedom.org/ which has further commentary on the Air America issue today). Here's Brad's response to my question about whether this would violate the law:
This arose in past cycles when the DNC quit advertising in Wisconsin
at Feingold's request. Arguably, yes. However, the counter argument, I think generally accepted, is that in order to coordinate, you must spend. If someone asks you not to spend, and you stop, then you have not made an "expenditure" in coordination.
However, suppose the RNC just changes it's message and goes back on
the air? Now it is arguably changing its message at the candidate's
request, which looks more like a coordinated expenditure.
But there is another caveat- is it coordination if Corker merely publicly condemns the ads, which is all that appears to have happened? Some "reformers" would like to say so, yet I don't think the First Amendment allows the government to stop a candidate from making public statements, or others from acting on them. If Bob Corker says e.g. "I hate these ads. I wish the RNC would stop running them," is it illegal coordination, any more than if Harold Ford publicly says, "This campaign is about change," and the DNC
responds by running ads saying, "We need change in Washington?" I don't
think so.
The Third Way in New Jersey:
The New Jersey court gave the state legislature 180 days to do one of two things: either (1) amend the state marriage laws to permit same-sex couples to marry or (2) create a parallel statutory system “which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples.” This parallel system could be called “civil unions” (as in Vermont and Connecticut) or “domestic partnerships” (as in California) or something else. Under #1 the state will have fully met its constitutional obligation. Under #2 the state may meet its constitutional obligation but will invite further litigation on the issue. Litigants will get a second bite at the marriage apple.
The question is, having concluded that gay couples are entitled to all of the rights of marriage, why did the New Jersey court not simply order the state to issue marriage licenses to same-sex couples? The gay-marriage litigants in the case likened a parallel system to “separate-but-equal” and “second-class citizenship,” terms that emphasize the dignitary harm done by a law that denies them the status of being married. They argued that marriage is not simply an entitlement to legal goodies, but is a status rich in cultural and historical meaning. Marriage works because the status of marriage is synergistic: it combines important legal rights with important cultural rites. A parallel system can capture the former but cannot fully capture the latter. Very eloquent and even moving affidavits from the couples, quoted at length in the concurrence, make the point that there is ultimately no substitute for marriage.
The court’s tentative answer to this dignitary concern is this:
Raised here is the perplexing question – “what’s in a name?” – and is a name itself of constitutional magnitude after the State is required to provide full statutory rights and benefits to same-sex couples? We are mindful that in the cultural clash over same-sex marriage, the word marriage itself – independent of the rights and benefits of marriage – has an evocative and important meaning to both parties. Under our equal protection jurisprudence, however, plaintiffs’ claimed right to the name of marriage is surely not the same now that equal rights and benefits must be conferred on same-sex couples.
It’s hard to imagine a court saying that the question whether interracial unions will be called “marriages” or “civil unions” might not be “of constitutional magnitude” or could be dismissed as a controversy over a “name.” This suggests that the answer to the question – “what’s in a name?” – is, “Sometimes, a lot.” The “sometimes” here is important because it may be that, in the context of our poisonous racial history, a difference in nomenclature would send an especially demeaning and corrosive message about interracial couples, where a difference in nomenclature alone for gay couples would still signal a tremendous advance forward for gay families. But at least courts should recognize that “names” can matter in ways that law should take into account.
The court also conflates the status issue with a social acceptance issue: it treats the claim for the legal status of marriage as if it is a demand for equal social acceptance. “Although courts can ensure equal treatment, they cannot guarantee social acceptance, which must come through the evolving ethos of a changing society,” argues the court (a challenge: find a parallel claim about social attitudes and law in Plessy).
Of course no court can mandate social acceptance; but that is not what gay-marriage litigants asked for. What a court can do is remove any role the law might play in reinforcing social inequality. Denying the status of marriage to gay couples lends some continued legitimacy to the idea that they should not be accepted socially as the equal of married couples. For many people, that may be the correct message to send. But we cannot deny that it is sent and that law has played a role in sending it. Erasing that final status distinction at least ensures that, if social inequality between gay and straight couples remains, it will be no fault of the law.
The court has not shut the door to a claim for the status of marriage. It suggests that the legislature may be able to come up with a reason to restrict the status of marriage to opposite-sex couples, even though it has failed to come up with a sufficient reason to restrict the rights of marriage to opposite-sex couples. The court doesn’t tell us what this reason might be, but says that “marriage” has a “shared societal meaning” passed down through the ages as the union of one man and one woman. “To alter that meaning would render a profound change in the public consciousness of a social institution of ancient origin,” says the court. Having been hard-headed positivists about legal rights for most of the opinion, here the judges become mystics in their reverence for “marriage.” Perhaps the legislature can cite the unknown consequences of changing the “shared societal meaning” of an ancient social institution as reason enough to choose a parallel system for gay couples, but it is hard to see how this would be different from the tradition-based rationale the state offered and the court rejected for denying rights to gay couples.
Two courts so far have squarely confronted this question of nomenclature and have come to opposite conclusions. The Massachusetts high court could not think of any reason other than prejudice for the legislature to deny the status of marriage to gay couples even as it was required to grant them the rights. A Connecticut trial court recently held that a claim for the status of marriage, where all the rights have already been given, was beneath the constitutional radar.
At any rate, it is now clearer than ever that judges in future gay-marriage cases will see three options:
(1) Democracy-permitting decisions: Deny the gay-marriage claim and do nothing more, leaving all decisions about status and rights to the legislature. This was the route taken recently by the state supreme courts in New York and Washington, although the Washington court left open the possibility of choosing route #2 or #3 in the future.
(2) Status-forcing decisions: Mandate the status of marriage, and all of its rights, for gay couples. This was the route taken by the Massachusetts high court in Goodridge.
(3) Rights-forcing decisions: Mandate the rights of marriage, but not the status, for gay couples. This was the route taken by the Vermont supreme court, and now by the New Jersey supreme court.
Rights-forcing decisions are the “Third Way” in gay-marriage litigation. The gay-marriage litigants in Washington and other states have rejected this remedy. But courts sympathetic to gay-marriage claims in other states will probably see the Third Way as the most attractive option. The advantage of a rights-forcing decision over a status-forcing decision is that it leaves some room for democratic decision – specifically, whether to grant the status of marriage to gay couples. And rights-forcing decisions engender less democratic backlash than do status-forcing decisions, producing potentially more stable gains for gay couples in the long run. On the other hand, rights-forcing decisions may be may prove unstable if they lead to subsequent status-forcing decisions.
Note that the number of states where courts can be expected to be somewhat sympathetic to gay-marriage claims has dwindled to a handful. New Jersey was probably the last, best hope for a full gay marriage victory in a state court for some time to come. California, where gay-marriage litigation is pending, seems more doubtful. In that state, full rights recognition (#3) has already been achieved legislatively so the only real question will be whether the state supreme court is willing to recognize the dignitary concerns that might push it into a status-forcing decision (#2). In a growing list of states, where status-forcing or even rights-forcing judicial decisions were already very unlikely, all three options have been taken off the table by sweeping state constitutional amendments that prevent even ordinary legislative action to protect gay families.
Nevertheless, by the end of next April, New Jersey will join four other states – Massachusetts, Vermont, California, and Connecticut – in giving gay couples access to all of the rights of marriage under state law. All by itself this is a significant development. Of the 300 million people who live in the United States, about 54 million (over 1/6 of the nation’s total population) will live in a state where gay couples have access to the same rights and obligations as married straight couples. Of those 54 million, about 40 million will live in a state where this result was achieved entirely legislatively (California and Connecticut). All of that has happened in just the last six years. The experience we gain and the lessons we learn from protecting gay families under the law in those states will be difficult to ignore in the years to come.
Evolution on Election Day:
The debate over the teaching of evolution and "Intelligent Design" will be placed in front of Ohio voters on November 7. As the New York Times reports, 75 of my scientific colleagues at Case Western Reserve Unviersity have endorsed a candidate for the Ohio Board of Education because, according to their letter, the incumbent has "attempted to cast controversy on biological evolution in favor of an ill-defined notion called Intelligent Design that courts have ruled is religion, not science." For this reason, they argue, voters should support Tom Sawyer over Deborah Owens Fink.
Fink denies calling for the teaching of "Intelligent Design." Instead, she says, "critically analyze evolution, as they should all scientific theories." Yet according to this website, Fink was responsible for pushing the idea of "Intelligent Design" within the Board of Education. Further, the Times quotes Fink saying it is "laughable" that a scientific consensus supports evolutionary theory.
All of this suggests evolution faces another test at the ballot box. How will it fare?
[I encourage commenters to address the politics of this race and the broader issues of subjecting educational standards to the democratic process, rather than rehashing the debate over whether ID is science. It's not.]
UPDATE: I should have noted in the original post that this is not a statewide race. Fink and Sawyer are running for the 7th District seat on the Board of Education. Also of note, the two appeared on Cleveland's local NPR station (WCPN) this morning along with a prominent scientist (Ken Miller of Brown) and a proponent of "Intelligent Design." Audio is available here.
Related Posts (on one page): - Evolution Wins in Ohio:
- Evolution on Election Day:
Wednesday, October 25, 2006
The New Jersey marriage decision and the unstable middle ground:
This is the first of two posts on the New Jersey marriage decision, the first judicial opinion from a state supreme court anywhere in the nation to hold unanimously that gay couples are entitled to all the benefits and protections of marriage. In this post, I’ll discuss some of the state constitutional arguments and how the court handled them, as well as what it might portend for public policy in other states. In the next, I’ll talk about the remedy ordered here – equal rights, not the status of marriage.
The gay-marriage litigants in the New Jersey case made two arguments. First, they argued that the “liberty” protected by the state constitution includes a fundamental right to marry that extends to same-sex couples. Second, they argued that prohibiting marriage to same-sex couples denies them the equal protection of the law.
The court’s answer to the fundamental right argument has been given by every state supreme court to look at the issue. It follows the federal precedents on fundamental rights claims by protecting only those rights “objectively and deeply rooted in the traditions, history, and conscience of the people of this State.” Because there is no deeply rooted, historical “right to marry someone of the same sex,” the court held, the claim fails.
The court recognizes that “[h]ow the right is defined may dictate whether it is deemed fundamental.” This is by now a familiar issue in fundamental rights cases: the more specifically a right is defined the more likely it will be rejected as “fundamental.” There is a fundamental “right to marry” recognized by federal and state courts, but no fundamental “right to same-sex marriage.” Sometimes courts define the right at stake broadly – protecting the “right to marry” of prison inmates or protecting the “right to marry” of interracial couples – where a more specific description of the right would cause the claim to fail (there’s no historic “right of prison inmates to marry” or “right of interracial couples to marry”).
So far, so good: the New Jersey court acknowledges the level-of-generality problem. But then the court chooses the specific definition of the right at stake (“a right to same-sex marriage”) with a very unsatisfying explanation for its choice. It cites, for example, state statutes that deny marriage to “polygamous, incestuous, and adolescent” unions as evidence that “the liberty interest at stake is not some undifferentiated, abstract right to marriage, but rather the right of people of the same sex to marry.” Citing state statutes limiting marriage – not for the evidence they provide about traditions but for deciding the threshold question of how broadly to define the right — is an odd way to proceed. If the Supreme Court had done that in Loving v. Virginia, for example, it would have had to look at the state statutes (including Virginia’s own) that denied marriage to “polygamous, incestuous, and adolescent” unions as evidence that the right at issue was the untraditional “right of interracial couples to marry”; or in Turner v. Safley, that the right at issue was the untraditional “right of prison inmates to marry.”
I’m not arguing that the choice of a narrower characterization of the fundamental right at issue (“a right to same-sex marriage”) is the wrong choice. I’m only noting that, after a handful of state supreme court and federal opinions, we still do not have a very defensible methodology for making this choice in the context of gay-marriage claims.
On the second claim – equal protection – the New Jersey courts have interpreted the state constitution in ways that are very different from the federal precedents and many other state courts. New Jersey does not follow what the court calls the “rigid” three-tiered scrutiny of the federal equal protection cases: “strict scrutiny” for race classifications, “intermediate” scrutiny for sex/gender classifications, and “rational basis” for almost every other kind of classification. (In fact, the New Jersey state constitution does not even contain an explicit equal protection guarantee.) Instead, the state courts have adopted a “flexible” test that calls for distinctions between “similarly situated people” to be justified by “a substantial relationship to a legitimate governmental purpose.”
I won’t go into the details of the holding on this point, but it’s enough to say this: New Jersey ran into trouble because, having started down the path to full equality for gay individuals and couples through a variety of state statutes and judicial decisions, the state could not give any good reason why it should continue to differentiate. For example, the court noted, the state has adopted a domestic partnership system that gives gay couples a list of rights also given to married couples. But yet the domestic partnership system does not extend other rights of married couples to these same-sex couples. What’s the basis for granting a select list of the rights but not the others?
This discussion of a gap served two equal-protection functions in the opinion: it established the importance of the issue of rights already given to gay couples and highlighted the importance of the remaining rights denied them. (Unlike other courts addressing the issue, the court also emphasized the hardships that denial of the remaining rights places on children being raised by gay couples. Hardly any court before this one has underscored that point.)
All of this put pressure on the state to come up with a reason for the remaining gap. Here, the case differs in an important respect from other state court cases:
The state does not argue that limiting marriage to the union of a man and a woman is needed to encourage procreation or to create the optimal living environment for children. Other than sustaining the traditional definition of marriage, which is not implicated in this discussion, the State has not articulated any legitimate public need for depriving same-sex couples of the host of benefits and privileges catalogued [earlier in the opinion].
The state thus surrendered the two rationales for denying equal rights to gay couples that have been successful in other state court decisions: procreation and child-rearing. But I doubt this surrender was the result of bad lawyering by the state. Instead, it was likely a consequence of the favorable public-policy environment already created legislatively and judicially for gay couples. Consider this passage from the opinion:
It is difficult to understand how withholding the remaining “rights and benefits” from committed same-sex couples is compatible with a “reasonable conception of basic human dignity and autonomy” [recognized in the state domestic partnership law]. There is no rational basis for, on the one hand, giving gays and lesbians full civil rights in their status as individuals, and, on the other, giving them an incomplete set of rights when they follow the inclination of their sexual orientation and enter into committed same-sex relationships.
It’s significant that no other gay-marriage case (with the possible and instructive exception of Vermont, where the court adopted similar reasoning) has been brought to a state supreme court in a state with as favorable a public policy toward gays as this one was: a broad set of antidiscrimination laws, domestic partnerships, second-parent adoptions, a hate crimes law, and so on. In this environment – where the state was committed to protecting gay people, sustaining gay couples, and facilitating gay parenting – it was both logically and practically difficult to hold on to the procreation and child-rearing rationales. The state had nothing left in defense of the rights gap except an unadorned “tradition” that the state itself had steadily undermined in its public policy.
The whole case, then, shows how unstable a middle ground can become in the hands of an aggressive court. The slope on that middle ground seems much more slippery for courts, which demand what they regard as principled reasons for any distinction, than it is for legislatures, which may refuse to budge for no reason other than that the votes aren't there to do more or because of simple fiat. When legislatures act, they may grant 50 of the 1,000 rights of marriage now, another 25 rights next year, another 100 the year after that, and the rest whenever they get around to it, all without explaining why they've acted or failed to act. Courts have a harder time making these distinctions because judicial conventions mandate that they give reasons to support their opinions, and what principled reason could there be for giving 50 of the 1,000 rights of marriage but not another 25 or 100 or all of them? This is the slippery slope phenomenon Eugene points to. It's not so much a legislative slippery slope as it is a judicial one.
Seen in this light, the New Jersey court’s quotation from Justice Brandeis’ famous dissenting opinion praising the states as “laboratories” to “try novel social and economic experiments” is a bit ironic. The New Jersey court now holds that once the state substantially experiments with gay equality it must go all the way, ending the experiment.
While the result in this case is surely a good one for gay families, it may chill experiments in other states where legislators might fear that they cannot move incrementally toward equality for gay couples without surrendering the judicial basis for any remaining distinctions. I doubt that’s really a great danger in most states, where courts tend to be less aggressive than New Jersey’s and where the standard rational-basis test should allow legislatures to proceed incrementally, but this opinion will surely be cited as a reason not to grant any rights to gay couples.
The question then is, having closed the gap with respect to all rights in marriage, what basis could there possibly be not to close the remaining gap with respect to equal status in marriage?
Gay Rights Laws, Slippery Slopes, and a Constitutional Right to Same-Sex Civil Unions:
The New Jersey Supreme Court has just held that the New Jersey Constitution's equal protection principles require the legislature to recognize at least same-sex civil unions. (Whether the legislature must recognize outright same-sex marriage is left open.) I'm not sure I'll have much to add on the big picture questions this raises, but I did want to note one thing -- this decision, whether you like it or not, seems to be an illustration that the slippery slope is a real phenomenon. Even when there are conceptually quite clear distinctions that could be used to distinguish the first step A from the final step B, A may nonetheless help bring B about.
Consider how the decision relies on the enactment of past gay rights laws. The backers of such laws often argue that these laws do not create a slippery slope towards same-sex marriage or civil unions. Thus, for instance, an editorial in the Boston Globe, Oct. 15, 1989, at A30, said "[A proposed antidiscrimination law barring sexual orientation discrimination in credit, employment, insurance, public accommodation and housing] does not legalize 'gay marriage' or confer any right on homosexual, lesbian or unmarried heterosexual couples to 'domestic benefits.' Nor does passage of the bill put Massachusetts on a 'slippery slope' toward such rights." See also Phil Pitchford, Council Members Wary of Partner Registry, Riverside Press-Enterprise, Apr. 30, 1994, at B1, quoting Riverside Human Relations Commission member Kay Smith as saying that "[t]hose that truly have a problem with homosexuality will see [a domestic partnership proposal] as part of the 'slippery slope' [toward gay marriages] . . . . But, this legislation needs to be looked at on the face value of what it is, and it really does very little." And see the Editorial, A Vote Against Hate, Louisville Courier-J., Feb. 3, 1994, at 6A, rejecting as "arrant nonsense" the claim that a hate crime law "would lead to acceptance of gay marriages."
Yet the New Jersey Supreme Court's equal protection argument begins by citing such non-same-sex-marriage, non-civil-union gay rights laws (citations omitted):
In addressing plaintiffs’ claimed interest in equality of
treatment, we begin with a retrospective look at the evolving
expansion of rights to gays and lesbians in this State.
Today, in New Jersey, it is just as unlawful to
discriminate against individuals on the basis of sexual
orientation as it is to discriminate against them on the basis
of race, national origin, age, or sex.
Over the last three decades, through judicial decisions and
comprehensive legislative enactments, this State, step by step,
has protected gay and lesbian individuals from discrimination on
account of their sexual orientation.
In 1974, a New Jersey court held that the parental
visitation rights of a divorced homosexual father could not be
denied or restricted based on his sexual orientation.
Five years later, the Appellate Division stated that the custodial rights of a
mother could not be denied or impaired because she was a
lesbian. This State was one of the first in the nation to
judicially recognize the right of an individual to adopt a same-sex
partner’s biological child. Additionally, this
Court has acknowledged that a woman can be the “psychological
parent” of children born to her former same-sex partner during
their committed relationship, entitling the woman to visitation
with the children. Recently, our Appellate
Division held that under New Jersey’s change of name statute an
individual could assume the surname of a same-sex partner.
Perhaps more significantly, New Jersey’s Legislature has
been at the forefront of combating sexual orientation
discrimination and advancing equality of treatment toward gays
and lesbians. In 1992, through an amendment to the Law Against
Discrimination, New Jersey became the
fifth state in the nation to prohibit discrimination on the
basis of “affectional or sexual orientation.”
In making sexual orientation a protected category, the
Legislature committed New Jersey to the goal of eradicating discrimination against gays and lesbians. In 2004, the Legislature added “domestic partnership status” to
the categories protected by the LAD.
The LAD guarantees that gays and lesbians, as well as samesex
domestic partners, will not be subject to discrimination in
pursuing employment opportunities, gaining access to public
accommodations, obtaining housing and real property, seeking
credit and loans from financial institutions, and engaging in
business transactions. The LAD declares that
access to those opportunities and basic needs of modern life is
a civil right.
Additionally, discrimination on the basis of sexual
orientation is outlawed in various other statutes. For example,
the Legislature has made it a bias crime for a person to commit
certain offenses with the purpose to intimidate an individual on
account of sexual orientation, and has
provided a civil cause of action against the offender. It is a crime for a public official to deny a person
any “right, privilege, power or immunity” on the basis of sexual
orientation. It is also unlawful to discriminate against gays and lesbians under the Local Public
Contracts Law and the Public Schools Contracts Law. The Legislature, moreover,
formed the New Jersey Human Relations Council to promote
educational programs aimed at reducing bias and bias-related
acts, identifying sexual orientation as a protected category,
and required school districts to adopt antibullying
and anti-intimidation policies to protect, among
others, gays and lesbians.
In 2004, the Legislature passed the Domestic Partnership
Act, making available to committed same-sex
couples “certain rights and benefits that are accorded to
married couples under the laws of New Jersey.”
With same-sex partners in mind, the Legislature declared
that “[t]here are a significant number of individuals in this
State who choose to live together in important personal,
emotional and economic committed relationships,” and that those “mutually supportive relationships should
be formally recognized by statute,” The
Legislature also acknowledged that such relationships “assist
the State by their establishment of a private network of support
for the financial, physical and emotional health of their
participants.” ...
In passing the Act, the Legislature expressed its clear
understanding of the human dimension that propelled it to
provide relief to same-sex couples. It emphasized that the need
for committed same-sex partners “to have access to these rights
and benefits is paramount in view of their essential
relationship to any reasonable conception of basic human dignity
and autonomy, and the extent to which they will play an integral
role in enabling these persons to enjoy their familial
relationships as domestic partners.”
Aside from federal decisions such as Romer v. Evans and
Lawrence v. Texas, this State’s decisional law and sweeping
legislative enactments, which protect gays and lesbians from
sexual orientation discrimination in all its virulent forms,
provide committed same-sex couples with a strong interest in
equality of treatment relative to comparable heterosexual
couples.
Later in the case (opinion pages 48-49 and 51-52), the court refers back to this reasoning, and uses it as an integral part of its equal protection argument.
Now maybe this entire discussion, though detailed and prominently placed, is all makeweight; maybe the court would have reached the same result even if such laws hadn't been enacted, and would have found that something else besides those laws "provide[s] committed same-sex couples with a strong interest in
equality of treatment relative to comparable heterosexual
couples." But if we take the New Jersey Supreme Court at its word, it sounds like in New Jersey antidiscrimination laws, domestic partnership laws, and hate crime laws did indeed help bring about same-sex civil unions, just as they did in Vermont (PDF pages 59-61) and, as to same-sex marriage, in Massachusetts.
One can condemn this slippery-slope effect, or praise it. (I support same-sex marriages and civil unions as a policy matter (see PDF page 37), but I don't think that state courts should mandate them as a constitutional matter.) But I think that one can't dismiss the possibility that slippery slope effects, good or bad, are indeed present here, and can be present in similar contexts. And this is so even when, as a purely logical matter, the initial steps (employment discrimination bans, domestic partnership laws, hate crimes laws, and the like) are eminently distinguishable from the final step (same-sex civil unions).
Interesting Result from a Survey of American Jewish Opinion:
American Jews are thought by many to be overwhelmingly liberal, but they apparently don't perceive of themselves that way. According to a recent poll, here is how American Jews characterize their political views:
Extremely liberal 4%; Liberal 26%; Slightly liberal 12%; Moderate 32%; Slightly conservative
10%; Conservative 12%; Extremely conservative 3%; Not sure 2%
So, while self-described liberals outnumber self-described conservatives, it's by 42% to 25%, with 32% describing themselves as moderates. Put another way, self-described moderates and conservatives in the Jewish community outnumber self-described liberals by 57% to 42%.
I can think of two plausible explanations for these results, which show a far less liberal Jewish community than one might expect based on reputation. One is that Orthodox Jews, Israelis, and immigrants from the former USSR, all of whom tend to be conservative relative to the general Jewish population, (I'm not certain that this is true of Israelis, but anecdotally they tend to be significantly more conservative than American Jews on at least military and church-state issues) are gradually becoming an increasingly large fraction of the Jewish community, and this is gradually making the community more conservative.
Another possibility is that the results are deceiving, and that many self-described "moderates" are only moderate compared to the people they tend to hang around with--disproportionately well-educated blue state urbanites working in professions that tend to be politically liberal (medicine, law, education, etc.) In other words, it's possible that many self-described Jewish moderates are really, in general American political terminology, quite liberal.
Of course, these two explanations are not contradictory, and both may be true. Does anyone know of other surveys that provide data that might shed more light on these subjects?
Third Way Result in New Jersey Marriage Case:
In what looks like a Vermont-style ruling, the New Jersey Supreme Court has unanimously ordered the state to grant all of the privileges and rights of marriage -- but not necessarily the word "marriage" -- to same-sex couples. The opinion is here.
The legislature has 180 days to act. The court leaves open the possibility that gay-marriage litigants can come back to the state courts at a future date and request full marriage.
Three justices concurred, saying that the state should have been required to grant full marriage under state law. Litigants thus fell one vote short of a majority for same-sex marriage.
I'll have more to say about the decision when I've had a chance to look at it in detail.
NJ Gay Marriage Decision:
Howard has posted it here. The key passage seems to be this: Although we cannot find that a fundamental right to same-sex marriage exists in this State, the unequal dispensation of rights and benefits to committed same-sex partners can no longer be tolerated under our State Constitution. With this State’s legislative and judicial commitment to eradicating sexual orientation discrimination as our backdrop, we now hold that denying rights and benefits to committed same-sex couples that are statutorily given to their heterosexual counterparts violates the equal protection guarantee of Article I, Paragraph 1. To comply with this constitutional mandate, the Legislature must either amend the marriage statutes to include same-sex couples or create a parallel statutory structure, which will provide for, on equal terms, the rights and benefits enjoyed and burdens and obligations borne by married couples. We will not presume that a separate statutory scheme, which uses a title other than marriage, contravenes equal protection principles, so long as the rights and benefits of civil marriage are made equally available to same-sex couples. The name to be given to the statutory scheme that provides full rights and benefits to samesex couples, whether marriage or some other term, is a matter left to the democratic process.
Now That's Lousy Software Design:
The Daily Progress (Charlottesville) reports:
Democratic U.S. Senate nominee Jim Webb of Falls Church is one of several candidates whose full names have been cut off the final page of the electronic ballot voters will use this year in Charlottesville, Falls Church and Alexandria.
Election officials said it’s possible that some confusion may result when voters reach the summary page of the ballot but stressed that it will not cause votes to be cast incorrectly and that Webb’s full name appears on the ballot’s first page, where voters choose for whom they vote.
A conference call among election officials in Richmond, Charlottesville and Northern Virginia worked out uniform language that will be posted on signs in every affected polling station, telling voters about the problem.
Webb’s name on the summary page will be listed only as “James H. ‘Jim’” and Republican U.S. Sen. George Allen’s party affiliation also will not appear on the summary page in the three cities using Hart InterCivic electronic voting machines....
On top of that, the bug has been known for some time: "[T]he city has used the same machines in 11 elections since purchasing them in 2002," and various candidates' names have been truncated, including Webb's in the June primary. Not a glitch that will affect that many votes, I suspect, but still pretty embarrassing and needless.
The Mental Tyranny of Legal Concepts:
One of the comments to my Rep. Alcee Hastings post reads:
What do you suggest instead, hold a new (show) trial just for this purpose? It is a dilemma, but it seems the only solutions are to treat him as if he were guilty or treat him as if he were innocent. I would prefer the latter.
This, it seems to me, is a good example of how people sometimes give legal definitions and judgments more influence than they deserve. When we're deciding whether to put someone in prison for a crime, the main options under U.S. law is to find him guilty or find him not guilty (which is to say treat him for legal purposes as if he were innocent). There are some departures even from that -- for instance, he could be found not guilty by reason of insanity and then locked up -- but that's the general rule where the criminal judgment is concerned.
But we aren't talking here about whether Rep. Hastings should be thrown in jail for his crime; of course, he can't be, because he was acquitted. We're talking about whether he should be given the chairmanship of the House Intelligence Committee. Nothing says that this decision must be driven by the outcome of the criminal trial, or for that matter by the outcome of the impeachment trial, which found him guilty and removed him from the federal judgeship.
Say you were considering hiring a babysitter, and you learned that she had been tried for and acquitted of child molestation, or for that matter of theft from an employer's home. Would you say "the only solutions are to treat her as if she were guilty or treat her as if she were innocent," and "prefer the latter"? I doubt it; I suspect you might want to either categorically refuse to hire her (which might be a shame if it turns out she really was innocent, but you don't want to run the risk), or at least investigate the matter further.
If, for instance, she had been found liable in a civil trial, under a preponderance of the evidence standard (which is my sense of what tends to be used in impeachment trials), you might find that this is ample justification for not hiring her. The rules that we use in daily life for deciding whom to trust need not perfectly or even closely track the rules that the criminal law uses for deciding whom to imprison. (Some jurisdictions do bar some forms of employment discrimination based on arrest record, or in some cases -- outrageously, in my view -- based on conviction record, but assume there is no such rule applicable there, just as there isn't one applicable to the House chairmanship decision.)
We can all think of lots of other examples. In most areas of life, we don't make our decisions about people based on whether there's proof beyond a reasonable doubt that they're guilty of something; nor we should we. Such a standard of proof is animated by the special concerns posed by the government's punishing someone for a crime, concerns based on the extremely harsh consequences of such punishment to the defendant, and on the potential for government abuse if the standard were lower. Those concerns don't carry over into other parts of life, including into the decisions about whom to appoint to high and responsible government office.
Let me close with a related story. Several years ago, on a law professor discussion list, someone complained about people (not just professors writing law review articles, but laypeople) calling O.J. a murderer; he had been acquitted of murder, the professor said, so he wasn't a murderer. So I responded that, because he had been found guilty in the civil trial, we should instead call him an "intentional tortfeasor." I meant this as a joke, but, as I recall, some people thought I was serious, and approved of my proposal seriously.
But that can't be right. We shouldn't demand that laypeople adopt either legalese words, or use ordinary English words only in their technical legal meaning. To a lawyer, at least in many contexts, "murderer" may mean "someone who has been convicted in a criminal trial of murder." To a layperson, "murderer" may mean "someone who is in fact guilty of murder."
Those who call O.J. a murderer are saying that they think he's a murderer. The fact that the legal system found this only by a preponderance of the evidence and not beyond a reasonable doubt doesn't make such a statement wrong -- just as one can call someone a murderer even if he has never been tried (for instance, because he died before a trial could take place), and no legal finding of murder has been made. That the legal system adopts a "prove it to a jury beyond a reasonable doubt" standard in some context doesn't mean that we need to adopt the same standard in some other context, whether that context is casual conversation or judgment about who should get a House Committee chairmanship.
"In Accordance With Fair Use ... We Forbid Any Reproduction":
The "This article is copyright protected and Fair Use is not applicable" line seemingly no longer appears in new articles on the North Country Gazette site, but the "In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette" remains on the front page. Why should people trust the accuracy of the articles on the site, if the site's claims about copyright law are inaccurate?
UPDATE: The line, now written as "This article is copyright protected. Fair Use is not applicable.," is back at the bottom of new North County Gazette posts.
Tuesday, October 24, 2006
New Jersey marriage decision Wednesday:
So says the state supreme court's media notices page. Expect a decision at 3 p.m. Eastern.
UPDATE: The oral argument, from last February, is available for viewing here.
Deans Not So Impressed With Harvard 1L Curriculum:
The National Law Journal has an interesting article on how Deans at several top law schools are reacting to Harvard's requirement of a first-year courses on international law and regulation. Turns out they aren't particularly enthusiastic. An excerpt: Stanford Law School Dean Larry Kramer said his school. . . has decided to follow a more traditional approach in its first-year curriculum and to leave the other courses for the second and third years of law school.
"The first year is the one year that works," he said. "It is rather bizarre that, in general, law schools have focused on reforming the first year when the problems and failures in the curriculum are all in the second and third years."
Harvard decided to modify its first-year curriculum because of the "imprint" that the initial year of study has on law students, said Martha Minow, a Harvard Law School professor who spearheaded its curriculum reform project.
"To postpone introduction to legislation and regulation is to communicate to students that it's an add-on. To postpone introduction to international law is to say 'that's for later,' " she said.
Minow also said that the changes at other schools influenced Harvard's revisions. "We are simply enacting what a lot of people have talked about and what a lot of people have done in pieces," she said.
Although Northwestern University School of Law recently altered its first-year legal research and writing course to include a broader communications and legal-reasoning component, it does not plan to change markedly its 1L curriculum, said the school's dean, David Van Zandt.
"I'm not a big fan of what Harvard's done," he said. I'm not sure I'm persuaded by Professor Minow's theory that international law and regulatory courses should be required 1L courses to "imprint" their importance. First, I don't know how much of an "imprint" 1L year courses actually make. My guess is that most students tend to forget the substance of their 1L courses more quickly than their later courses, both because they are further away in time and because the 1L year tends to be so stressful. I'm also not sure that locating a course in the first year vs. the second year sends a particularly strong signal. Constitutional law is a second year course at Harvard, but that doesn't communicate to Harvard students that constitutional law is an unimportant topic that's "for later." If anything, I wonder if the opposite may be true: requiring a course after the first year may signal that a course is so important that you have to study it when you have the basic courses down and can fully understand and appreciate its importance.
Speech at UPenn Law School on Kelo and Eminent Domain:
VC readers in the Philadelphia area may be interested to know that I will be speaking at UPenn Law School this Wednesday (12 noon-1:20, Silverman Hall, Rm. 240-B) on Kelo v. City of New London, eminent domain abuse, and prospects for reform.
If you read the VC and come to the speech, come up and introduce yourself.
Monday, October 23, 2006
This Blog Post Is Copyright Protected and Fair Use Is Not Applicable:
Who says so? I do! I can just make up the law as I going along, because ... because ... well I just can. OK, I can't, but the North Country Gazette thinks it can; all its articles say at the bottom, "This article is copyright protected and Fair Use is not applicable." Just making it up, as I said.
A contract, even a clickwrap contract (i.e., "To access this site, you must agree to waive your fair use rights") might serve to impose a contractual obligation on you not to copy material, just as a contract to keep facts confidential imposes a contractual obligation on you not to copy material. That copyright law doesn't prohibit fair use copying, or doesn't prohibit copying of facts, doesn't preclude the creation of contracts in which one party promises not to engage in such copying; there's some controversy about that, but I'm pretty confident that this is so. Nonetheless, that requires some manifestation of assent to the contract, and simply visiting a publicly accessible Web page that says "Fair Use is not applicable" surely doesn't qualify.
Thanks for the pointer to David Giacalone, who has more to say about the subject.
UPDATE: Commenter Tony points to yet another lovely item on the front page, "In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette." I take it that they're forbidding the reproduction of this very quote, even in the course of my criticism of their position — nice work if they can get it, but fortunately they can't. We are all quite free to reproduce that quote, and other quotes from their material, of course within the boundaries of fair use (and a quote of a sentence from a work in the course of criticizing the work qualifies).
FURTHER UPDATE: The "This article is copyright protected and Fair Use is not applicable" line seemingly no longer appears in new articles on the site, but the "In accordance with Fair Use of Copyright: WE FORBID ANY REPRODUCTION in part or in whole of The North Country Gazette" remains on the front page. Why should people trust the accuracy of the articles on the site, if the site's claims about copyright law are inaccurate? Related Posts (on one page): - "In Accordance With Fair Use ... We Forbid Any Reproduction":
- This Blog Post Is Copyright Protected and Fair Use Is Not Applicable:
Justice Thomas To Give Papers to UGA, May Teach Class:
From the Athens Banner-Herald (free registration required): U.S. Supreme Court Justice Clarence Thomas ended a two-day visit to the University of Georgia with a short speech upon accepting a Blue Key National Honor Society Service Award on Friday night.
Thomas, a Savannah-area native who was appointed to the high court in 1991 by President George H.W. Bush, said that with all the mistakes made in the United States, up and coming leaders, including those at UGA, have a calling to make a difference.
"At some point, somebody has to stand up and lead," Thomas said in his keynote speech at the annual Blue Key Awards Banquet at the Georgia Center for Continuing Education. "In Washington, there is all this bickering ... but I like the tone of what I hear on this campus."
Thomas said he hopes to return to UGA next year to teach a course in constitutional or educational law and announced that he will leave his papers to UGA.
This week was Thomas' third visit to UGA in the past three years - he delivered the graduation speech at the UGA School of Law in 2003 and since has spoken at the law school at the invitation of a student group. Thanks to How Appealing for the link.
Does reading fiction increase empathy and social awareness?
This recent study seems to show that reading fiction is strongly correlated with high levels of empathy, social understanding, and awareness. On the other hand, there is no similar connection between social skills and reading nonfiction.
Of course, as the authors point out, it is not clear which way the causation goes. It may well be that highly empathetic people tend to read more fiction, not that reading fiction makes you more empathetic. Personally, I hope that it's the latter effect that dominates; I need to justify my reading habits!
A related question: What about the the correlation between social skills and the ratio of fiction books read relative to nonfiction? For example, I probably read much more fiction than the average person, but I also read far more nonfiction than fiction. Does the ratio of fiction to nonfiction say more about my empathy or lack thereof, or is it the absolute amount of fiction read that is decisive?
How much skin color discrimination is there?
This paper by economist Joni Hersch has been getting a lot of play in the blogosphere (e.g. here and here). for apparently proving that, among immigrants to the United States, those with the lightest skin color earn 8 to 15 percent higher pay than those with the darkest possible skin, even after controlling for many other variables such as English proficiency, education, and years since arrival in the US. The skin color effects found in the study go beyond black vs. white differences, since they extend also to other nonwhite immigrant groups such as Indians and East Asians.
Hersch's study is well-designed and has some impressive data. But I nonetheless have reservations about it. In particular, it fails to control for two key variables that are highly correlated with skin color among immigrants: cultural similarity of the immigrant's country of origin with the United States and quality of education. These shortcomings do NOT prove that there is no skin color discrimination against nonwhite immigrants. But they do suggest that its effects may not be as large as the study claims.
I. Cultural Similarity.
Immigrants from majority white nations (primarily Canada, Australia, New Zealand, and various European countries) generally come from societies that are much more similar culturally to the United States than those from which most non-white immigrants originate. Cultural similarity makes it easier for immigrants to assimilate (which is surely a strong predictor of economic opportunity), and also to function effectively within US businesses. This point applies even to different immigrant groups of the same race. For example, immigrants from Western Europe or Canada have higher incomes, on average, than my fellow Russian immigrants, despite the fact that both groups are mostly white (even more so in the case of Russians than Western Europeans). This is in part because those countries' cultures and business practices are closer to those of the US than Russia's, so Western Europeans and Canadians can assimilate faster and more completely.
The author of the study could have partially controlled for this variable by, for example, checking to see if the results hold up if immigrants from Europe, Canada, and Australia/NZ are excluded. Note that controlling for English proficiency (as the author does) does not fully address this issue, because schools in many countries culturally very dissimilar to the US teach English as the primary foreign language covered in school curricula.
II. Quality of Education.
The study controls for quantity of education (years of schooling), but not for quality. Unfortunately, however, the majority-white nations that send immigrants to the US have, on average, much better education systems than most of the majority-nonwhite ones. An immigrant who got 12 years of schooling in Germany is probably much better educated than one who got 12 years in a third world nation. Moreover, even within particular countries, it is often the case that whites get better quality schooling than non-whites, in part because of historical discrimination against non-whites . This is certainly true, for example, in South Africa and many Latin American countries. Even employers completely indifferent to skin color could still rationally choose to take these quality differences into account. The author does note that part of the effect she observes may be due to discrimination in immigrants' home countries, but does not consider the ways in which this affects quality of education.
This effect is much harder to control for than cultural similarity. But it might be possible to take a stab at it by, for example, controlling for how well students from the immigrant's country of origin do on international comparisons of basic educational skills.
As noted above, these points do not prove that there is a complete absence of skin color discrimination against either nonwhite immigrants or other nonwhites. They do, however, suggest that the study's findings may be overstated.
Sunday, October 22, 2006
Piracy Patch For Los Angeles Boy Scouts:
The Associated Press reports: A Boy Scout is trustworthy, loyal, helpful, etc., etc. He is also respectful of copyrights. Boy Scouts in the Los Angeles area will now be able to earn an activity patch for learning about the evils of downloading pirated movies and music.
The patch shows a film reel, a music CD and the international copyright symbol, a "C" enclosed in a circle.
The movie industry has developed the curriculum.
"Working with the Boy Scouts of Los Angeles, we have a real opportunity to educate a new generation about how movies are made, why they are valuable, and hopefully change attitudes about intellectual property theft," Dan Glickman, chairman of the Motion Picture Association of America, said in a statement Friday.
Scouts will be instructed in the basics of copyright law and learn how to identify five types of copyrighted works and three ways copyrighted materials may be stolen. I have no idea what it normally takes to earn a Boy Scouts "activity patch," but I actually kinda like this idea. A picture of the patch is available here.
Vicious:
The New York Times public editor changes his mind on "The Times’s decision to publish its June 23 article on a once-secret banking-data surveillance program":
My July 2 column strongly supported [this decision]. After pondering for several months, I have decided I was off base. There were reasons to publish the controversial article, but they were slightly outweighed by two factors to which I gave too little emphasis. While it’s a close call now, as it was then, I don’t think the article should have been published.
Regardless of what one thinks of the merits of the matter, the public editor deserves credit for being willing to publicly correct himself -- and to criticize the newspaper's decision -- when he became persuaded that he and the newspaper were mistaken. (For more details of the editor's reasoning, following the link above.)
I would like, though, a bit of help with the last paragraph:
What kept me from seeing these matters more clearly earlier in what admittedly was a close call? I fear I allowed the vicious criticism of The Times by the Bush administration to trigger my instinctive affinity for the underdog and enduring faith in a free press -- two traits that I warned readers about in my first column.
It is a little odd to see the New York Times as the underdog, even with respect to the Administration (especially the mid-2006 Bush Administration, which was hardly at the peak of its power). But independently of that, could readers please point me to the Administration statements that the editor seems to be referring to as "vicious criticism[s]"? I would genuinely like to be informed about this, since it might provide a better referent for what "vicious" means in political discourse (for instance, for deciding whether particular New York Times columns critical of the Administration are themselves "vicious criticism[s]").
"Voices for the ACLU" Campaign:
In response to the "Save the ACLU" campaign organized by past ACLU supporters and employers has prompted a response from those who continue to support the organization's current leadership, according to this NYT report. "Voices for the ACLU" was created by former ALCU "leaders" who are "dismayed by the ongoing attacks on the ACLU and its leadership by a handful of former staff and former board members and over the disproportionate and distorted coverage they have received in some quarters of the press." Related Posts (on one page): - "Voices for the ACLU" Campaign:
- "Save the ACLU" Campaign:
Scalia & Althouse on the Judiciary:
In a Saturday talk before the National Italian American Foundation, Justice Scalia questioned the importance of judicial "independence" if judges insist on acting as "policy makers," according to this AP report.(LvHB).
"You talk about independence as though it is unquestionably and unqualifiably a good thing," Scalia said. "It may not be. It depends on what your courts are doing."
Scalia added, "The more your courts become policy-makers, the less sense it makes to have them entirely independent." . . .
Take the abortion issue," he said. "Whichever side wins, in the courts, the other side feels cheated. I mean, you know, there's something to be said for both sides."
"The court could have said, 'No, thank you.' The court have said, you know, 'There is nothing in the Constitution on the abortion issue for either side,'" Scalia said. "It could have said the same thing about suicide, it could have said the same thing about ... you know, all the social issues the courts are now taking." . . .
" . . . when you push the courts into that, and when they leap into it, they make themselves politically controversial. And that's what places their independence at risk."
Meanwhile, Ann Althouse wrote an op-ed for the WSJ suggesting that where you stand on judicial "activism" (or how you define it) is often a function of where you sit. It begins:
Everyone seems to oppose judicial activism these days. If you don't like the role the courts are currently exercising, you find a way to call it "activism" and argue that the change you want would be "restraint." But if the status quo pleases you, you insist that what the judges are doing is not "activism," rather, nothing more than what the law requires. Or you concede the existence of activism -- but contend that changing things will only unleash a new form of far more virulent activism.
There was a time -- not all that long ago -- when we openly praised the activist judge and scoffed at the stingy jurist who invoked notions of judicial restraint. That restraint was a smokescreen for some nasty hostility toward individual rights, we'd say. Now we all seem to love to wrap ourselves in the mantle of the new fashion. But that fashion comes at the price of candor.
Read the whole thing.
Sunday Song Lyric:
I finally saw the film " Thank You for Smoking." I liked it, though not quite as muchas the book. The movie used Tex Williams' clever old ditty, "Smoke, Smoke, Smoke that Cigarette," for the opening credits. The song opens this way: Now I'm a fellow with a heart of gold
And the ways of a gentleman I've been told
Kind-of-a-guy that wouldn't even harm a flea
But if me and a certain character met
The guy that invented that cigarette
I'd murder that son-of-a gun in the first degree
It ain't cuz I don't smoke 'em myself
and I don't reckon that it'll hinder your health
I smoked 'em all my life and I ain't dead yet
But nicotine slaves are all the same
At a pettin' party or a poker game
Everything gotta stop while they have a cigarette
Smoke, smoke, smoke that cigarette
Puff, puff, puff until you smoke yourself to death.
Tell St. Peter at the Golden Gate
That you hate to make him wait,
But you just gotta have another cigarette. Interestingly enough, Tex Williams [and Merle Travis] wrote this song in 1947 — before the first Surgeon General's report linking cigarette smoking to lung cancer, and before the condemnation of the health effects of smoking in Reader's Digest.
UPDATE: As noted in the comments, the song should be credited to both Tex Williams and Merle Travis, the latter of whom wrote most of it, though Williams was the first to record it.
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