Dorf on Standing

"The Supreme Court Oral Argument in the Global Warming Case Reveals What's Wrong with the Standing Doctrine"

Friday's Class: Focus on Three Cases

We are finishing the list of assignments right on schedule, but we will need to limit our focus somewhat concerning assignment number 22.

For Friday, December 1, 2006, please read all of assignment 22, but we will spend our class time on 3 cases:City of Cleburne (p.918), Romer(p.926), and Bruning(re-read your printout from link supra).

This Term's Racial Affirmative Action Cases

Today's USA Today has this article that includes this key passage:

The school districts in Louisville and Seattle are at the heart of a pair of legal disputes, now before the U.S. Supreme Court, that test whether public schools can use race as a factor in determining where students go to school. The cases, to be heard by the court Dec. 4, have drawn national attention because they could affect policies in districts across the country.

The key legal question in the Louisville and Seattle lawsuits — which were filed by parents of white students who weren't allowed to attend the schools of their choice — is whether school-assignment plans that use students' race as a factor violate the Constitution's guarantee of equality.

It's an emotionally charged issue that gives the court its first chance to weigh in on racial policies since Chief Justice John Roberts and Justice Samuel Alito joined the nine-member court last term. The new justices are former government lawyers who, early in their careers, showed reluctance toward government race-based policies.

Alito's actions in the cases could be especially significant because he replaced the retired Sandra Day O'Connor, who often joined the court's four-member liberal wing to form a majority in favor of affirmative action policies. In 2003, her vote in a case involving the University of Michigan law school ensured that colleges could consider applicants' race to achieve diversity.

The Court and Partial Birth Abortion: Two Views

New York Times

Washington Times

Partial Birth Abortion Cases to be Argued This Wednesday

Update: Howard Bashman has a preview of the partial birth abortion cases (which will be argued today) here. His prediction: "I expect that the Supreme Court will uphold the constitutionality of this federal law by a vote of 5–4, and in the aftermath of such a ruling states too will be free to ban the procedure by enacting similarly worded statutes."


Today's Chicago Trib has this article.

I will post the transcript of the oral argument as soon as I get a link.

Michigan Voters Abolish Racial Preferences

Not to be lost among all the results from yesterday's election returns is the Michigan ballot issue that would "prohibit the University of Michigan and other state universities, the state, and all other state entities from discriminating against or granting preferential treatment based on race, sex, color, ethnicity or national origin." That initiative won by a 58-42 vote of the people despite almost unanimous opposition from the powers that be in that state.

Here is today's coverage on the issue from the Detroit Free Press.

Lawrence Questions

1. Did Lawrence apply a kind of "medium rare scrutiny" to the Texas sodomy law?

2. After Lawrence, may a state criminalize prostitution or do consenting adults have a right of sexual autonomy that includes exchanging sex for money or money's worth?

3. May a state prohibit same sex marriage after Lawrence? In other words, may a state make it a crime for same-sex couples to cohabit as a "married" couple? What about a man who cohabits with more than one woman and holds himself out as "married" to both? Is there a difference between formal recognition of some new form of "marriage" and criminal proscription of that type of "marriage?"

4. What is the holding (the constitutional doctrine) of Lawrence? Is Lawrence basically Lochner with Mr. Vatsyayana's Kama Sutra substituted for "Mr. Herbert Spencer's Social Statics?"

5. Suppose the state of Texas re-enacts its sodomy law and bases its defense of the law on public health rather than public morality? Is public health a legitimate government interest? Is male on male anal sex associated with any rational public health concerns?

Lawrence and a Sexual Autonomy Right to Obscenity

Eugene Volokh analyzes "whether Lawrence v. Texas means that obscenity laws are unconstitutional, on a sexual rights theory even if not a speech rights theory." His analysis is available here at his blog The Volokh Conspiracy.

Racial Preferences on Ballot in Michigan

The NYTimes has a story today that begins:

Three years after the Supreme Court heard Jennifer Gratz’s challenge to the University of Michigan’s affirmative action policy, she is still fighting racial preferences, this time in a Michigan ballot initiative.

“We have a horrible history when it comes to race in this country,” said Ms. Gratz, 29, a white applicant who was wait-listed 11 years ago at the state’s flagship campus here. “But that doesn’t make it right to give preference to the son of a black doctor at the expense of a poor student whose parents didn’t go to college.”

The ballot initiative, Proposition 2, which would amend Michigan’s Constitution to bar public institutions from considering race or sex in public education, employment or contracting, has drawn wide opposition from the state’s civic establishment, including business and labor, the Democratic governor and her Republican challenger. But polls show voters are split, with significant numbers undecided or refusing to say where they stand.

Passage would probably reinvigorate challenges to a variety of affirmative action programs in other states.

We will read the Michigan racial preference cases that triggered this initiative later this semester. Initiatives like this tend to poll under the radar, because many people fear saying they support a measure against the wishes of the ruling establishment and the shapers of what is politically correct. I think it will pass because people tend to vote their true conscience in the privacy of the voting booth. And most people do not believe that racial preferences are consistent with the promise of racial equality under the 14th Amendment.

Scalia on Judicial Independence vs. Judicial Activism

Here is an excerpt of what Hizzoner had to say:

Scalia, during a talk on the judiciary sponsored by the National Italian American Foundation, dismissed the idea of judicial independence as an absolute virtue. He noted that dozens of states, since the mid-1800s, have chosen to let citizens elect their judges.

"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."

Here is a link to the AP article.

More on Partial Birth Abortion case

Gonzales v. Carhart: The Supreme Court Once Again Considers "Partial-Birth Abortion" by Sherry Colb is online at Findlaw.

Religious Liberty in the UK--Not!

Here is a link to an article about religious persecution directed against Muslim women by UK government officials. Here is a key excerpt:

A British government minister joined an increasingly bitter debate about the rights of Muslim women to veil their faces, saying a teaching assistant should be fired for insisting on wearing one in school.

Phil Woolas, the government's Race and Faith minister, was quoted by the Sunday Mirror newspaper as demanding that Aishah Azmi, a Muslim teaching assistant, be fired for refusing to remove her veil at work.

"She should be sacked. She has put herself in a position where she can't do her job," Woolas said.

....

The debate on the veils began earlier this month, when Jack Straw, the former foreign secretary who now serves as leader of the House of Commons, said Muslim women visiting his office should remove their veils.

Lochner and the Liberty of Consenting Adults

Notice that Lochner views Substantive Due Process as protecting the liberty of consenting adults to enter into any contract that pleases them, so long as no third party is harmed by their conduct. The decision protects the right of adults to choose--to make economic choices and to enter into economic relationships with other consenting adults.

Should laws that restrict the right of consenting adults to agree to wages, hours, rents, and other terms and conditions of their economic lives be held to violate the "liberty" protected by the Constitution? Does government have the right to impose a particular view of social justice and public morality on consenting adults who wish to enter into "unfair" or "immoral" or "unhealthy" agreements?

If you think the right of consenting adults to agree to labor on terms of their choosing is not a protected constitutional liberty, what about the liberty of consenting adults to engage in various types of sexual conduct and relationships? Should the state be allowed to regulate consensual sexual conduct under the police power--the power to pass laws to advance public health, safety, morals or the general welfare?

In other words, if you believe that the Constitution protects the "liberty of the citizen to do as he likes [in the bedroom] so long as he does not interfere with the liberty of others to do the same," (Holmes opinion at p. 520), then shouldn't adult citizens also have the right to do as they please in their economic lives? If your answer is no, why is paternalism and public morality a legitimate basis for legislation in the conference room, but not in the bedroom?

Why should we think SubstantiveDue Process protects the sexual autonomy and right of choice of adults, but not the economic autonomy and right of choice of adults? Is it because the one liberty is "fundamental" and the other is not? How do you know this? Which language or principle in the written Constitution supports your analysis?

"Moderate" Justices and Ideological Decisionmaking

Are so-called "moderate" Justices, such as O'Connor and Kennedy, less (or more) likely to engage in ideological judging? Over at the Volokh Conspiracy, Ilya Somin says perhaps more:

Indeed, in two important ways moderate jurists may be more prone to ideological judging than more extreme ones. First, moderate judges such as Justices O'Connor and Kennedy, are more likely to favor complex balancing tests than strong liberals and conservatives, who are more likely to favor bright line rules. Balancing tests tend to leave more scope for judicial discretion (and thus ideological decisionmaking) than rules do.

Second, I suspect that moderates are less likely than comparative extremists to realize that their political preferences are the products of a contestable ideology rather than of simple, nonideological "common sense." Indeed, Garrow's own article partially endorses this fallacy, to the extent that he assumes that moderate views are, by nature, less "ideological" than extreme ones. Of course, if you believe that your views are just common-sense truths that only extremist wingnuts/moonbats could disagree with, you are less likely to be hesitant about imposing them on others through the use of judicial power.

Hmmm. What do y'all think?

Does the Court Follow the Times?

Todd Zywicki has a great post over at the Volokh Conspiracy. Here is a major excerpt:

New York Times Hypothesis:

Awhile back, around the time of Lawrence and Grutter in particular, the hypothesis was floated--mainly in jest, I assume--that the best predictor of Surpreme Court outcomes in many socially and politically controversial cases was the conventional wisdom of America's political and legal elite. And that this consensus could be captured in an operative variable as being the expressed position of the New York Times Editorial Board (perhaps the Washington Post Editorial Board as well).

The Court's ruling in Kelo got me thinking about this hypothesis again, and so I went back and looked at the New York Times Editorials in three recent cases that came to mind as perhaps the most obvious tests of the hypothesis--Kelo, Raich, and Granholm. Sure enough, traditional legal variables seem to do fairly poorly in predicting the results in those cases, as many have noted. The composition of the majorities and minorities are all over the place with little consistency.
But one variable does hit the mark three out of three times--in each case, the Supreme Court ruling met with the approval of the New York Times Editorial Page. Moreover, Kennedy--who has typically been characterized by critics as being the most susceptible to being swayed by elite opinion--voted with the Times, I mean the majority, in each of the three cases (by my calculation, he was the only one who did so).

In addition to Lawrence and Grutter, of course, the New York Times variable also accurately predicted the outcome in the Campaign Finance Reform case. I haven't double-checked whether Kennedy voted with the majority in each of those three as well.

To the best of my knowledge, no one has ever taken the "New York Times Hypothesis" seriously enough to test it empirically, but at first glance at least, it looks like it has some pretty good predictive power. If someone has run regressions on this, obviously I would be interested in the results.

Justices just want love--from people in power. So they do what it takes to earn that love.

"New Supreme Court Term Promises Early Drama"

A nice preview: Link

Public Expression of Religion Act

From the Religion Clause blog:

By voice vote yesterday, the House Judiciary Committee approved H.R. 2679, the Public Expression of Religion Act. The bill, which now goes to the full House of Representatives, would limit relief in Establishment Clause claims to issuance of an injunction, and would deny the award of attorneys' fees and expenses to plaintiffs who win Establishment Clause lawsuits. Americans United For Separation of Church and State strongly criticized the Committee's action. AU Executive Director Rev. Barry W. Lynn said: "This bill is nothing more than an attempt to scare people away from having their day in court. The House Judiciary Committee should be ashamed of itself for passing such a blatantly un-American scheme."

Notice this is a way to check the Court's EC jurisprudence without limiting its jurisdiction. The provision denying attorney's fees in EC cases is huge!

Newdow as a Standing Decision

link

House votes to protect Pledge

Link

Excerpt:

The House yesterday voted to protect the "under God" phrase of the Pledge of Allegiance from judges who might declare it unconstitutional, the measure being another element of the Republican-pushed values agenda in the lead-up to the fall elections.

Supporters said the Pledge Protection Act, which passed on a 260-167 vote, was necessary because of court decisions such as a 2002 ruling in California from the 9th U.S. Circuit Court of Appeals. The court ruled it an unconstitutional "endorsement of religion" to require public-school students to recite the Pledge in its current form. In 1954, Congress added the words "under God" to demonstrate opposition to atheistic communism.

The Pledge Protection Act was backed by 221 Republicans and 39 Democrats, with eight Republicans, 158 Democrats and the chamber's only independent opposed.

"Judges should not be able to rewrite the Pledge," said Majority Whip Roy Blunt, Missouri Republican.

The measure denies federal courts the jurisdiction to rule on interpretation of the Pledge and forbids the Supreme Court from ruling on Pledge appeals. State courts would be free to decide the matter as a state issue.

"We must step in," said Rep. Todd Akin, the Missouri Republican who sponsored the bill. He called it Congress' responsibility to "stand up to the court when they are misusing the Constitution."

Alito Article

From How Appealing (link):

"Alito: The life and times of a justice in the making." Because The Newark (N.J.) Star-Ledger is a newspaper whose articles do not remain online for long, I'm going to break with my usual vacation-week practice to note that today's edition of that newspaper contains an article headlined "Alito: The life and times of a justice in the making."

The article explains, "With the court in summer recess, Sam Alito and his wife, Martha-Ann, agreed earlier this month to their first interviews since he was confirmed. They talked about the Senate hearings, about her tearful breakdown during a now famous session. He also spoke about the inner workings of one of the most closely watched courts in the nation's history."

President Refusing to Enforce Laws He Deems Unconstitutional

Suppose the Supreme Court decides a case, as it did in Plessy v. Ferguson, that reverses Brown v. Board and holds that racially segregated public institutions are not unconstitutional. Now suppose further that Congress passes a law (over the President's veto) that requires public buildings and public facilities to be segregated by race.

The President issues a statement declaring that he disagrees with the Supreme Court's interpretation of the Equal Protection Clause and declares that he will not enforce the segregation law because he believes it is unconstitutional.

Is it proper for the President to follow his interpretation (as opposed to the Court's interpretation) of the Constitution when carrying out his power to "take care that the Laws be faithfully executed" and his oath to "preserve, protect and defend the Constitution of the United States."

The Great Debate

Here are a couple of questions I submit to you all for comment.

1. There seems to be a consensus that judicial restraint is good and judicial activism is bad. But not everyone agrees what these terms mean. What do you think? What is judicial activism and why is it bad? When should courts exercise restraint?

2. Justice Brennan reads the Constitution as protecting liberty by means of "majestic generalities" such as the "ideal of human dignity." Assuming human dignity is a constitutional ideal, is it one capable of application? How does a Court know what human dignity means in the context of constitutional litigation? Is this any different from reading the Constitution as a general directive to judges to decide all important public policy issues based upon their own subjective preferences (their own view of what "human dignity" means)? Is this consistent with the Constitution's explicit recognition of the most important freedom of all, the freedom of a people to participate in democratic self-government through law?

UT Link

link

Now imagine that UNL had an official website that gave some advice about "Spirituality and Fears About the After Life" that included some advice:

James Smith, who was raised in a liberal Unitarian church, suffered from his fear that a truly Holy God could not possibly ignore the reality of sin.

" I was raised in a church that teaches that salvation is universal and is earned, regardless of what you believe, by living a good life. But I know that I am not good, at least not in the eyes of a holy and righteous God. I realized that trusting Jesus and the blood He shed for me on the cross was the only way for me to get past my guilt and my sins. The God I really believed in was a God who was both Holy and Merciful. His holiness demanded that He hate my sin, but in His mercy and His love he sent his Son to die for those who trust in Him."

This is an experience many people go through. Faced with a conflict between their religion and their concept of what God must really be like, they come to realize that a truly righteous God can not grade on the curve and that a truly merciful God would create one path--the way of the Cross--to save those who accept His mercy."

Would this statement of spiritual counseling from UNL officials violate the EC?

Poway Editorial in Wash Post

Link

Link Fixed: Christian Legal Society v. Walker

I fixed the link in the syllabus for this case. Here it is as well. This time I mean it!!!

Poway Hypos

Was the problem for the court in Poway that the banned t-shirt used the word "shameful?" Suppose instead pro-family students wore t-shirts on National Day of Truth proclaiming:

"THE TRUTH SHALL NOT BE SILENCED"

"ONE MAN ONE WOMAN ONE FAMILY"

Would a t-shirt such as this have passed muster under the 9th Circuit's reading of Tinker?

Suppose in, say, Kansas a public school student is disciplined for wearing a t-shirt on the National Day of Silence proclaiming:

"HOMOPHOBIA IS SHAMEFUL"

Could this shirt be banned under Poway due to disruptions that occurred at last year's Day of Silence? Would it matter if the school banned the anti-homophobia t-shirts while permitting students to wear pro-family t-shirts such as the one in the first hypo above?

Let's talk about these issues in today's class!

The Right Not to Read a Book With Whores In It

What I would like you all to do is post a comment sharing your views about Hentoff's great chapter on the "right not to read" a book contrary to one's conscience.

Please. Everyone. Speak up! Fill cyberspace with your intelligence!

Nat Hentoff is an old style ACLUer, one who believes that free speech and freedom of thought are at the very core of liberty. He is a friend (well, a friendly acquaintance) of mine and I always enjoy reading his columns. He brings the eye of a journalist--an eye for facts and human details--to his analysis of legal issues.

Mt. Soledad Cross Litigation

Link

Excerpt:

"Seventeen years of legal wrangling later, the 29-foot monument still crowns a hill over the Pacific – defended by city ballot measures, federal legislation and even one congressman's appeal for presidential intervention.

Now the Supreme Court has weighed in, and the case of the Mount Soledad cross may set a precedent on whether the government can let religious symbols be maintained in public places.

State and federal judges have ordered the cross removed, saying it represents an unconstitutional endorsement of one religion. Earlier this month, the Supreme Court halted an order that the city take it down by Aug. 1, giving state and federal courts time to hear appeals this fall."

UPDATE (from How Appealing blog):

"Senate approves transfer of cross; Passage unanimous; Bush expected to sign": The San Diego Union-Tribune today contains an article that begins, "The U.S. Senate approved a plan yesterday to transfer land beneath the Mount Soledad cross to the federal government, bolstering supporters who have been fending off efforts to remove the monument for nearly two decades."
And The Los Angeles Times reports today that "U.S. Senate Votes to Acquire Site of Cross."

Can a Christian Club be Christian?

From the How Appealing blog:

"Kent school Bible club dispute becomes a federal case;

Court fight centers on 'Christians only' membership limit": Yesterday's edition of The Seattle Post-Intelligencer contained an article that begins, "It seemed a simple idea: two high school girls who wanted to start a Bible club at Kentridge High School. But the once-quiet grumbling over their Christians-only membership plan has now erupted into a full-scale federal case. On Thursday, a three-judge panel of the 9th U.S. Circuit Court of Appeals, meeting in Seattle, sat rapt as lawyers argued on the one hand for religious freedom and, on the other, against allowing discrimination in a public school district."
The Ninth Circuit has posted online the oral argument audio at this link (Windows Media format).Posted at 02:35 PM by Howard Bashman

If our schedule permits, we may listen to this oral argument in class--RFD

RFRA Case Decided

From How Appealing:

Today's U.S. Supreme Court Order List and opinions in argued cases:


1. In Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, No. 04-1084, Chief Justice John G. Roberts, Jr. delivered the opinion on behalf of a unanimous Court affirming the Tenth Circuit's ruling that the federal government failed to demonstrate, at the preliminary injunction stage, a compelling interest in barring respondent's sacramental use of the hallucinogenic tea known as hoasca. You can access the syllabus here; Chief Justice Roberts's opinion here; and the oral argument transcript here.

Maine Discriminatory Voucher Case

From the Religion Clause blog:

Cert. Filed In Maine School Voucher Case

A petition for certiorari has been filed in the U.S. Supreme Court seeking review of the Maine Supreme Court's decision in Anderson v. Town of Durham, according to today's New York Sun. The decision upheld a state school voucher program for students from small towns with no high schools. Towns may pay for those students to attend a non-sectarian public or a private school, but they may not pay for attendance at religious parochial schools. (See prior posting.)



And here is more from How Appealing:

The Institute for Justice yesterday issued a press release entitled "Parents Ask U.S. Supreme Court To End Religious Discrimination & Vindicate Full School Choice." A copy of the petition for certiorari filed yesterday can be viewed at this link, while the Main Supreme Judicial Court's ruling is available here.Posted at 08:58 AM by Howard Bashman

Guns (and Knives) Save Lives

This is not a Religion & the Constitution post.

From the Volokh Conspiracy (link):

Three Cheers for Mr. Cope:

The AP reports:

Two victims of a knife-wielding grocery store employee remained hospitalized Saturday after the man attacked eight co-workers and was finally stopped by a witness who pulled a gun, authorities said....

Elartrice Ingram, 21, was charged with nine counts of attempted first-degree murder, police said....

Ingram, chasing one victim into the store's parking lot, was subdued by Chris Cope, manager of a financial services office in the same small shopping center, Memphis Police Sgt. Vince Higgins said.

Cope said he grabbed a 9mm semiautomatic pistol from his pickup truck when he saw the attacker chasing the victim "like something in a serial killer movie."

"When he turned around and saw my pistol, he threw the knife away, put his hands up and got on the ground," Cope told The Associated Press. "He saw my gun and that was pretty much it." ...

While I'm at it, and since a tangential search came up with it, I might as well add this:

With Australian outback hero Crocodile Dundee as her inspiration, an 80-year-old British pensioner foiled a knife-wielding burglar with an even bigger blade of her own.

When woken by a masked man holding a knife, Winifred Whelan screamed and ran downstairs to the kitchen.

Grabbing a giant carving knife, she told the startled intruder "You call that a knife? This is a knife" in an echo of the famous scene in the Crocodile Dundee film when actor Paul Hogan confronted a New York mugger.

As she took on the intruder, her husband grappled with his accomplice.

Good work.

Summer 2006: Assignments

Casebook: William Cohen, The First Amendment (Foundation Press 2003)
Online Materials: Professor William Linder's Exploring Constitutional Law (Link)

I. Establishment Clause

1. Casebook p. 464-482; Linder Introduction (Link); Engel v. Vitale (Link); Handout 1

2. Casebook p. 482-487: Handout 2; Selman v. Cobb County School District (link); Prof. Linder's page on "The Evolution Controversy" (Link)

3. Casebook p.487-515; Handouts 3 and 4

4. Ten Commandments decisions (McConnell et al on line text--link)

5. Casebook p. 516-550

6. Casebook p. 550-560; Rosenberger Oral Argument

7. Newdow case (Link) ; Casebook p. 311-313

II. Free Exercise Clause

1. Babylon Five: Believers episode (in class viewing); Linder Introduction (Link)

2. Reynolds case (Link); Casebook p. 560-567; Goldman case (Link); Lyng case (Link)

3. Casebook p. 567-578; Handout 5; Handout 6 (Lukumi and Axson-Flynn)

4. Locke v. Davey (Handout 7)

5. Casebook p. 578-588; Cutter v. Wilkinson materials (Link)


III. Religion and Freedom of Expression: Public Forum Analysis, Public Schools, Subsidized Speech, and Expressive Association

1. Casebook p. 206-228

2. Casebook p. 228-244

3. Casebook p. 262-279: Poway case (Link) and (Link); Nat Hentoff, The Right Not to Read a Book with Whores in It (on Reserve in Library)

4. Casebook p. 279-298 (Re-read Locke v. Davey Handout 7)

5. Casebook p. 311-324; Christian Legal Society v. Washburn University (Link);Christian Legal Society v. Walker (Link)

"Religious Indoctrination" vs. "Secular Indoctrination"

Joe asks:

"Prof. Duncan: How would you define "secular indoctrination"? Is it indoctrination in the belief of atheism or indoctrination in the belief that religion and government are both best served by remaining separate? Perhaps this is where we differ. To me, secularism is not a faith or an anti-faith; it is, by definition, religious neutrality.Joe."

Well, if you look at recitation of the Pledge as a kind of indoctrination, you could view it as in part religious indoctrination ("under God" indoctrinates children with the idea that God exists and our Nation is subordinate to Him) and in part secular ideological indoctrination (the idea that America and its flag stand for one Nation, indivisible with liberty and justice for all).

More broadly, every day public schools take positions on controversial issues and seek to inculcate impressionable children in certain so-called common beliefs and values--patriotism, celebrate diversity and multiculturalism, gay pride and gay rights, break down traditional gender roles by encouraging girls to strive for important careers, environmentalism, etc. Now I embrace many of these secular beliefs, but that does not change the fact that public schools are using governmental power to indoctrinate impressionable children in controversial ideological assertions.

If it is improper and unconstitutional for the public schools to coerce religious beliefs on impressionable children, why isn't equally improper and unconstitutional for the public schools to coerce impressionable children into adopting controversial secular beliefs and ideas?

From a religious liberty perspective, a strictly secular public school curriculum is neutral toward religion only in the sense that it marginalizes all religious perspectives about what is true, what is good, and what is lovely. As Michael McConnell has put it so eloquently: "A secular education does not necessarily produce atheists, but it produces young adults who inevitably think of religion as extraneous to the real world of intellectual inquiry, if they think of religion at all."

I would love to hear your thoughts about whether a government school monopoly is consistent with freedom of thought, freedom of belief, and freedom of intellectual inquiry.

"One Nation Under God"

I would like everyone to post a comment discussing the following issue:

Given the Establishment Clause doctrine (Lemon test, endorsement test, etc.) we have discussed so far, how should the case be decided when a public school student and her parents challenge the constitutionality of the Pledge of Allegiance under the EC? Explain your reasoning.

C'mon give it a try. It's something to do while staying inside on a hot weekend.

Nebraska Marriage Amendment Upheld by 8th Circuit

From the How Appealing blog:



BREAKING NEWS -- Eighth Circuit reverses federal district court ruling that had declared in violation of the U.S. Constitution an amendment to Nebraska's Constitution barring same-sex marriage: You can access today's ruling of the U.S. Court of Appeals for the Eighth Circuit at this link.
The federal district court's ruling, which the Eighth Circuit reversed today, can be accessed at this link.Posted at 11:14 AM by Howard Bashman

This is not a "Religion and the Constitution" issue as such, but I thought some of you may have been following this case with interest. I have a kind of "parental" interest since I was one of the drafters of the Nebraska Marriage Amendment. So I am a very proud "founding father" today!

More on Property and Religious Liberty

From the Religion Clause blog:

"New Illinois Law Protects Condo Owners' Right To Put Up Mezuzahs

Illinois Governor Rod R. Blagojevich today signed legislation that was designed to guarantee condominium owners the right to observe their religion at home, specifically including the display of objects on their front door. (Press release.) The legislation, S.2165 was prompted by several cases where Chicago co-op boards passed rules banning the display of religious symbols in hallways-- including barring Jewish residents from placing mezuzahs on their doorposts. The bill passed unanimously in both the state House and the Senate. It becomes effective January 1, 2007."

Any thoughts?

Up Ya Nose, Wid A Rubber Hose

Here is a link to Scalia's Sicilian "gesture."

Yo. Check it out.

Bushit!

Here is a post from the Volokh Conspiracy:

Profanities on Bumper Stickers:

The Atlanta Journal-Constitution reports that a motorist was ticketed for having a bumper sticker that said "I'm Tired Of All The BUSHit"; according to the police officer, the county "had an ordinance about lewd decals." (Thanks to Orin for the pointer.)

The police officer unfortunately didn't know that the state had a Supreme Court decision about lewd decals, too (though "profane decals" is probably the more sensible term here): Cunningham v. State, 400 S.E.2d 916 (1991), which struck down on First Amendment grounds an ordinance that banned affixing to a car "any sticker, decal, emblem, or other device containing profane or lewd words describing sexual acts, excretory functions, or parts of the human body." The Georgia Supreme Court in Cunningham quite sensibly held that Cohen v. California, 403 U.S. 15 (1971), which upheld Cohen's right to wear a jacket that said "Fuck the Draft," applied equally to bumper stickers; because of this, the court set aside a conviction for displaying a sticker that said "Shit Happens."

Seems to me that the DeKalb County Police Department owes someone an apology, at least.

You would think policeman's time would be better spent going after thieves and violent criminals than political bumper stickers. It's almost enough to make me want to run out and get one of those bumper stickers for my car. Almost!

Christophobia in Public Schools?

Here ia an excerpt from a Liberty Counsel press release that may be of interest:

U.S. Supreme Court May Hear Liberty Counsel Case Regarding Censorship Of A Kindergartner’s Art Poster That Contained A Picture Of Jesus

Washington, DC – The U.S. Supreme Court will decide soon whether to hear a case involving a school district’s censorship of a kindergartner’s art poster that contained a picture of Jesus. Representing Antonio Peck, the student whose poster was censored, Liberty Counsel filed a brief late yesterday with the Court.

When attending kindergarten at the Baldwinsville Elementary School in Syracuse, New York, Antonio’s teacher instructed the class to draw posters regarding their understanding of the environment. Antonio drew a poster depicting children holding hands circling the globe, people picking up garbage and recycling trash. The left side depicted Jesus with one knee to the ground and two hands stretched toward the sky, although Jesus was not named. This poster was displayed for half a day on the cafeteria wall, along with 80 other student posters, during an event where parents were invited to view their children’s artwork. But unlike the other kindergarten posters, school officials folded Antonio’s poster in half in order to censor Jesus. School officials said the poster violated “church and state” and would give the impression that the school was teaching religion, even though the poster was clearly a kindergartner’s artwork. Folding the poster made it look odd. Antonio’s name at the bottom was cut in half. When he saw his poster folded, Antonio felt ashamed in front of his classmates and his parents, because school officials told him and his parents why his poster was folded. He then assumed he did something wrong and was being punished. When school officials refused to remedy the matter, apologize or adopt a policy to prevent future censorship, Liberty Counsel filed suit.

In 2000, the federal trial court ruled that the school had the right to censor the poster because of “church and state” concerns. On March 28, 2001, a court of appeals, in a 3-0 decision, reversed the decision and sent the case back to the trial court. In 2004, the same federal trial court judge again ruled for the school. Liberty Counsel appealed, and on October 18, 2005, the Second Circuit Court of Appeals again ruled 3-0 in favor of Antonio. The Second Circuit joined the Ninth and the Eleventh Circuits in holding that public schools may not censor a student’s viewpoint on a permissible subject matter when it is responsive to a school assignment or program. The First and Tenth circuits hold that viewpoint discrimination in the curricular context may be permissible. The School District filed a Petition requesting that the Supreme Court hear the case and rule that school districts may censor religious viewpoints of students. Liberty Counsel’s Brief argues that the Second Circuit’s decision that schools may not censor religious viewpoints of students is correct. Liberty Counsel’s brief also points out that Justice Samuel Alito, while on the Third Circuit Court of Appeals, wrote that schools may not censor religious viewpoints of students when they address permissible subjects in response to class assignments or instruction.

Any thoughts?

Scalia Excerpt From Georgia v. Randolph

From Prof. Wagner's blog, Ninomania:

Justice Scalia, responding to Justice Stevens's concurrence in today's decision on consent searches, Georgia v. Randolph:

There is nothing new or surprising in the proposition that our unchanging Constitution refers to other bodies of law that might themselves change. The Fifth Amendment provides, for instance, that “private property” shall not “be taken for public use, without just compensation”; but it does not purport to define property rights. We have consistently held that “the existence of a property interest is determined by reference to ‘existing rules or understandings that stem from an independent source such as state law.’ ”.... This reference to changeable law presents no problem for the originalist. No one supposes that the meaning of the Constitution changes as States expand and contract property rights. If it is indeed true, therefore, that a wife in 1791 could not authorize the search of her husband’s house, the fact that current property law provides otherwise is no more troublesome for the originalist than the well established fact that a State must compensate its takings of even those property rights that did not exist at the time of the Founding....

Finally, I must express grave doubt that today’s decision deserves Justice Stevens’ celebration as part of the forward march of women’s equality. Given the usual patterns of domestic violence, how often can police be expected to encounter the situation in which a man urges them to enter the home while a woman simultaneously demands that they stay out? The most common practical effect of today’s decision, insofar as the contest between the sexes is concerned, is to give men the power to stop women from allowing police into their homes—which is, curiously enough, precisely the power that Justice Stevens disapprovingly presumes men had in 1791.

Any thoughts?

Is It Good For the Goose Too?

"Should Men Have the Right to a "Financial Abortion"? A Biological Father Cries Sex Discrimination When Forced to Pay Child Support for an Unwanted Baby" (Link)

Excerpt:

Many men are quite angry about how little control they currently exercise over their reproductive lives. When a man decides to have consensual sexual intercourse with a woman, he risks unwanted fatherhood: If the woman conceives, it is she, and she alone, who decides whether to terminate her pregnancy. And that is true even if the woman falsely claimed that she was using birth control, that she had been told by a doctor that she could not conceive, or that if she did conceive, she intended to get an abortion.

In short, the argument goes, a woman has the ability forcibly to place her unwitting partner or ex-partner in a position he never wanted to occupy - that of a father - with all of the financial and emotional baggage that the status carries.

Should Men Have the Ability to Force Abortion? An Unpopular View

Some fathers' rights advocates feel so strongly about this reproductive inequity that they maintain that if either a man or a woman wants to terminate a pregnancy, against the wishes of the other partner, he or she should be able to do so. According to the New York Times magazine, Michael Newdow, for example, railed against "the imbalance in reproductive rights - women can choose to end a pregnancy but men can't…." Newdow then cut himself off, in order, he said, not to "alienate" the interviewer.

(As readers may recall, Newdow is the man who unsuccessfully sued to stop his biological daughter's school from having the children recite the Pledge of Allegiance. Possibly confirming Newdow's sense of how little control he exercises as a father, the Supreme Court denied Newdow standing to pursue the lawsuit, because of his status as the noncustodial parent, coupled with the Court's deference to California domestic law).

The "angry" men have a point. No? Should the law empower one sex partner (the woman) to impose parenthood on the unwilling father of her child? If women have total control over their reproductive freedom (as Roe and Casey mandates), should they not also have total responsibility for supporting the children they choose to bring into the world?

Hmmm. What are your thoughts? Should men and women have equal reproductive autonomy rights?

Too Much Diversity For Diversity Day?

Here is an excerpt from a press release of Liberty Counsel, a public interest, civil rights/civil liberties law firm:

March 22, 2006

School Decides to Cancel Diversity Day Rather than Include Viewpoint of Christians and Former Homosexuals

Viroqua, WI - Viroqua High School officials chose to cancel tomorrow's Diversity Day activities after Liberty Counsel presented legal precedent requiring inclusion of the viewpoints of Christians and former homosexuals.

The school scheduled sessions for the students that presented the viewpoints of Hmong, Jews, Muslims, Native Americans, African-Americans, homosexuals, Latinos, Buddhists, the physically disadvantaged, and the economically disadvantaged, but not Christians or former homosexuals. Diversity Day would have been held tomorrow, March 23, 2006.

After a school official stated that the viewpoints of Christians and former homosexuals would be excluded, a resident contacted Liberty Counsel on behalf of many other concerned Viroqua residents.

On March 9, Liberty Counsel sent a letter to the District Administrator, explaining that the censorship of the viewpoints of Christians and former homosexuals violated the Establishment Clause and the Fourteenth Amendment equal protection guarantee. Liberty Counsel sent another letter on March 14 to the District Administrator and Board of Education. Two days later, the District Administrator confirmed in a telephone call that Diversity Day had been cancelled.

Apparently, diversity is good so long as it is the right kind of diversity.

Any thoughts?

More On Catholic Charities Case

It is ironic that those who claim to march under the banner of tolerance are themselves so intolerant of religious liberty. Jeff Jacoby has a great column in the Boston Globe on this issue. Here is an excerpt:

Is this a sign of things to come? In the name of nondiscrimination, will more states force religious organizations to swallow their principles or go out of business? Same-sex adoption is becoming increasingly common, but it is still highly controversial. Millions of Americans would readily agree that gay and lesbian couples can make loving parents, yet insist nevertheless that kids are better off with loving parents of both sexes. That is neither a radical view nor an intolerant one, but if the kneecapping of Catholic Charities is any indication, it may soon be forbidden.

''As much as one may wish to live and let live," Harvard Law professor Mary Ann Glendon wrote in 2004, during the same-sex marriage debate in Massachusetts, ''the experience in other countries reveals that once these arrangements become law, there will be no live-and-let-live policy for those who differ. Gay-marriage proponents use the language of openness, tolerance, and diversity, yet one foreseeable effect of their success will be to usher in an era of intolerance and discrimination . . . Every person and every religion that disagrees will be labeled as bigoted and openly discriminated against. The ax will fall most heavily on religious persons and groups that don't go along. Religious institutions will be hit with lawsuits if they refuse to compromise their principles."

People often ask: "How does homosexual marriage and civil unions affect your marriage and your family? Why do you care enough to oppose it?" The Catholic Charities case illustrates my normal response to this question. I am opposed to gay rights/marriage laws because, as Prof. Glendon says above, once enacted they become the wedge to persecute religious institutions and religious individuals. The gay rights political agenda is designed to "usher in an era of intolerance and discrimination" directed at anyone who does not openly embrace and celebrate homosexuality.

Here is a link to the essay by Prof. Glendon quoted by Jacoby.

Zones of Tolerance

My friend, Prof. J Bud from UT, has some interesting things to say about tolerance and the modern culture wars. Consider this excerpt (from J. Budziszewski, The Revenge of Conscience (1999) at 53-54):

The bottom line is that Neutrality is no more coherent in the matter of religious tolerance than it is in tolerance of any other sort. What you can tolerate pivots on your ultimate concern. Because different ultimate concerns ordain different zones of tolerance, social consensus is possible only at the points where these zones overlap. Note well: The greater the resemblance of contending concerns, the greater the overlap of their zones of tolerance. The less the resemblance of contending concerns, the less the overlap of their zones of tolerance. Should contending concerns become sufficiently unlike, their zones of tolerance no longer intersect at all. Consensus vanishes.

This, I believe, is our current trajectory. The embattled term 'culture war' is not inflammatory; it is merely inexact. And we can expect the war to grow worse. The reason for this is that our various gods ordain not only different zones of tolerance, but different norms to regulate the dispute among themselves. True tolerance is not well tolerated. For although the God of some of the disputants ordains that they love and persuade their opponents, the idols of some of the others ordain no such thing.

By the way, J Bud's book is well worth reading while sitting on the beach at Cancun or Deltona over Spring Break.

Gay Rights vs. Religious Liberty: Catholic Charities Driven Out of Adoption Ministry in Massachusetts

Update: Here is an excellent essay on this issue written by constitutional law scholar, Dean John Garvey.

Here is an excerpt from the Boston Globe's coverage of this issue:

In a stunning turn of events, Archbishop Sean P. O'Malley and leaders of Catholic Charities of Boston announced yesterday that the agency will end its adoption work, deciding to abandon its founding mission, rather than comply with state law requiring that gays be allowed to adopt children.

The Rev. J. Bryan Hehir, president of Catholic Charities of Boston, and Jeffrey Kaneb, chairman of the board, said that after much reflection and analysis, they could not reconcile church teaching that placement of children in gay homes is ''immoral" with Massachusetts law prohibiting discrimination against gays.

''This is a difficult and sad day for Catholic Charities," Hehir said. ''We have been doing adoptions for more than 100 years."

Catholic Charities of Boston began in 1903 as an adoption agency primarily serving Catholic children left by parents who died or abandoned them.

Officials in government, social services, and gay-rights groups expressed disappointment about the decision. Catholic Charities is widely respected among adoption providers and has handled more adoptions of foster children than any other private agency in the state.

Here is a related article from the Globe. The Church is opposed to facilitating adoptions by homosexual couples because it believes this harms the child. Here is the Church's position:

But a conflict between the Catholic bishops of Massachusetts and Beacon Hill has been evolving for several decades, as state policy makers have adopted an increasingly expansive view of gay rights, starting with a nondiscrimination measure in 1989 and culminating in 2004, when Massachusetts became the only state in the nation to legalize same-sex marriage.

At the same time, the Vatican, often guided by the theologian who is now Pope Benedict XVI, became increasingly alarmed at the growing tolerance of homosexuality in the West, and in 2003 Benedict issued a doctrinal statement opposing same-sex unions and declaring that ''allowing children to be adopted by persons living in such unions would actually mean doing violence to these children, in the sense that their condition of dependency would be used to place them in an environment that is not conducive to their full human development."

I admire the Archdiocese for obeying God rather than Caesar. Even though many children will suffer as a result of losing this service, perhaps in the long run government will learn that religious liberty is at least as important as sexual autonomy. Religious organizations perform many important charitable services, and, if they are run out of states with draconian gay rights policies, those states (and the most vulnerable persons in those states) will suffer a great loss.

What do y'all think? Should gay rights laws be subject to a religious liberty exemption? Or are gay rights more important than religious liberty?

Freedom Fries Anyone?

UPDATE: Lest we be seen as being too hard on the French, how would this case come out under Smith and the Free Exercise Clause? Suppose the State of Nebraska adopts a generally applicable "no headgear" rule for driver's license photos? Do Sikhs have a free exercise right to keep their turbans on when being photgraphed for a driver's license?

What about it Marco and others? Do the Red Sox play in the eastern division of the Freedom League?


France doesn't get religious liberty. Here is a post from the ACS blog:

French Sikhs Lose Appeal, Must Remove Turbans

The French Council of State, the country's highest administrative body, has ruled that Sikhs must remove their turbans when being photographed for a driver's license. In reversing its previous decision on the matter, the body found that the no turban rule was necessary in "the interests of public security and protection of order" and not an infringement on Sikh's freedom of religion. French Sikhs have urged President Jacques Chirac to intervene on their behalf and are threatening to take the matter to the European Court of Human Rights if nothing is done to ameliorate the situation. This decision comes on the heels of a controversial French law prohibiting French school children from wearing conspicuous religious symbols in public schools, which has raised the ire of many French religious minorities.

Don't Sue, Don't Lose

Here is an excerpt from an article on today's major Supreme Court decision:

Supreme Court Sides With College Military RecruitersBy Tony MauroLegal TimesMarch 6, 2006

Rejecting the views of some of the nation’s top law schools and professors, the Supreme Court on Monday upheld the so-called Solomon Amendment, which requires universities receiving federal funds to give equal access to military recruiters on campus.

The unanimous decision was a sharp rebuke of the legal academe, many of whose members objected on First Amendment grounds to hosting military recruiters, because of the armed forces’ policies against allowing open homosexuals in their ranks.

Writing for the 8-0 Court, Chief Justice John Roberts Jr. said the academics’ arguments “trivialize” some of the Court’s First Amendment precedents while “exaggerating” others. Justice Samuel Alito Jr. did not participate in the ruling.

“This decision will force our schools to carve out an exception to our nondiscrimination policies for the military, and that is unfortunate,” said Carl Monk, executive director of the Association of American Law Schools (AALS), which has opposed discrimination in legal education on the basis of sex since 1970. But he said law schools will obey what is now “the law of the land.” Monk expressed the hope that “the day is not far off when gays and lesbians will be able to serve as military lawyers.”

Here is a link to the Court's decision.

More Foreign Law

The Religion Clause blog has this interesting post:

Anti-Evolution Litigation Hits Russia

Islam Online yesterday reported that a 15-year old Russian student, Masha Shraiber, and her father are suing to require Russian state schools to teach Creationism along with Darwin's theory of evolution. The suit, seeking a rewrite of textbooks, argues that teaching only evolution violates the freedoms of religion and conscience protected by the Russian Constitution. Plaintiffs in the case are being supported by three lawyers representing the Russian Orthodox, Muslim and Jewish communities, all of which support the teaching of Creationism.

I am definitely warming toward foreign law. Balanced treatment is constitutionally required, not constitutionally forbidden! Of course, the court hasn't ruled yet.

Notice one other thing. Notice that even this newsy post is biased in the way the headline presents the issue--this litigation is not "anti-evolution," is it? The litigation is really about ending the monopoly that evolution has been awarded in government schools. It is equal treatment, not anti-evolution. No?

Ginsburg Catches A Few zzzzzzs in Court

Link. You have got to see the hilarious artist's rendition.

I guess we should call this judicial non-activism!

Kirpans Are Kool in Kanada

The Supreme Court of Canada has ruled "that barring Montrealer Gurbaj Singh Multani from wearing his dagger-like kirpan to school violates the nation's Charter of Rights and cannot be considered a reasonable restriction on his right to freedom of religion." Here is a link to a news report of the case.

Here is a link to the SCC's opinion.

Hmmm. Maybe I should rethink my views about the citation of foreign decisions in US constitutional law opinions. Maybe Nino is wrong? Naaaaw!!

Ash Wednesday Issue

Howard Friedman posts a very interesting issue over at his Religious Liberty blog. Here is the passage:

"In Bakersfield, California, parent Nona Darling is complaining to school authorities about policies that make it difficult for children to miss school for religious holidays. Darling wanted to take her children out of school at noon on Ash Wednesday to attend services. However, the school said that if she did, the children would be given an "unexcused" absence. The Bakersfield Californian yesterday said it is not clear to what extent the school's policy, that gives excused absences for doctor's appointments, sickness, and funerals, but only in limited situations for religious observances, reflects the state's education code."

This looks like a pretty clear violation of Free Exercise under Smith, both because the policy is substantially underinclusive ( the broad exemptions for doctor's visits, sickness, and funerals--what about for weddings and varsity athletics?--appear to render the mandatory attendance policy non-generally applicable) and because it appears to contain an individualized exemption process for determining which religious observances are excused and which are not.

Any thoughts?

Presentations

I thought Kim and Marco did great jobs yesterday. Interesting issues, and very good presentations.

I want to apologize to Marco for the abrupt end of class. I know many of you have evening plans, but I think from now on we should budget, say, an extra 15 or 20 minutes to give everyone an opportunity to finish their presentaions.

Hopefully, the computer problems we had yesterday won't reoccur, so we should be able to finish on time. But if we need an extra 15-20 minutes to allow a student to finish his or her presentation, then so be it. If you have to leave at 6:30 on the dot, that's ok. But the rest of us should plan on staying til the last out in the 9th inning.

Have a great weekend. Rick Duncan

Nino on Foreign Law in American Opinions

Hot off the press!

Here is a link to a speech Justice Scalia gave earlier this week.

Proposed Nebraska Constitutional Amendment

LR 254CA, recently inroduced by Sen. Landis, would send to the voters of Nebraska the following proposed amendment to the Nebraska Constitution:

"This state shall not make or enforce any law which infringes upon or interferes with the privacy of the person, family, home, property, documents, correspondence, or information of any person unless the rights of others are directly infringed or unless public safety can be ensured by no lesser means."

Would this law create a nearly absolute abortion liberty under the Nebraska Constitution? Would it create a right to physician-assisted suicide? A right to possess marijuana in one's home? Car? A right to possess automatic weapons in one's home or car or on one's person? A right to same-sex marriage? To polygamous marriage? Would parents have a right to educate their children as they see fit? To school choice and equal funding for various educational choices? Does privacy in property rights mean that Lochner is now part of the state constitution?

If you answered either yes or no to the above, score yourself 100 per cent. Anything or everything or nothing is possible under the proposed constitutional amendment. It is whatever the state courts want it to be, an open invitation to rule from the bench.

Does this have any chance of getting out of committee? I have no idea, but Prof. Gradwohl says no way it gets out of committee.

Hat Tip: Jim Cunningham of the Nebrsaka Catholic Conference

The Essence of American Liberty

"My job is not to bring people together," Lindsay said. "My job is to teach history. History is not pleasant in many cases, and I made it very clear in class that this is America and you all have the right to offend but you do not have the right to not be offended."

This quote comes from Prof. James Lindsay of CSU, who was commenting on his decision to show copies of the Mohammed cartoons to his Islamic history class.

The right to offend, but not the right to not be offended.

I like that. It sums up the essence of our exceptional notion of free speech.

hat tip: Volokh Conspiracy

Marriage and Demographics

This just in from Maggie Gallagher's marriage think tank:

Ron Lesthaeghe, the dean of European demographers, is in the U.S. this year, turning his formidable intellectual gaze to the American scene. What he has discovered is very interesting (see his paper on American demographic trends here). In general, he finds that America's political divisions are mirrored in dramatic demographic divisions. The Blue States--principally the Northeast, the West Coast, and the upper Midwest--typically have high rates of cohabitation, high average ages at first marriage, low fertility rates, and high abortion rates. The Red States--the lower Midwest and the South--typically have low rates of cohabitation, low average ages at first marriage, high fertility rates, and low abortion rates.

Blue States like Massachusetts look a lot like European countries such as the Netherlands in their tendency to postpone childbearing. Indeed, Blue States resemble Northern Europe in many demographic respects. Bottom line: marriage has ceased to anchor the adult lifecourse in Blue States. Perhaps it's no accident that Blue Staters and Europeans see eye to eye on so many issues.

Red States like Kansas and Alabama, by contrast, have comparatively high levels of fertility, low rates of cohabitation, early ages at first marriage, and so on. These states also tend to be more religious. They most decidedly do not look like Europe. Southern Red States also have high rates of divorce. I think there is something about nominally-religious Scotch-Irish Southerners that makes them more divorce prone (beyond the concentration of poverty in many Southern states). Theories anyone?

Lesthaege also looks at the link between demographics and voting in 2004. He finds an EXCEEDINGLY STRONG LINK BETWEEN DEMOGRAPHICS AND VOTING IN THE 2004 PRESIDENTIAL ELECTION. Money quote:

"On occasion demographers have been quite successful in predicting election results...the very strong negative correlation of -.88 found here between the Second Demographic Transition [his indicator of the deinstitutionalization of marriage]...and the percentage votes for G.W. Bush in the 2004 elections is to our knowledge one of the highest spatial correlations between demographic and voting behavior on record."

This correlation holds up remarkably well after controlling for all the usual suspects: education, income, percent urban, race, ethnicity, and even religion. So there is something about being married with children--above and beyond religious factors-- that makes people vote Republican.

Of course, as others have noted, it is not entirely clear that the Republican Party has done all that much for marriage lately. Perhaps some smart, centrist Democrats will take a look at these electoral trends and realize that they can make inroads in Red America by eliminating the marriage penalties in our tax and transfer systems, promoting community marriage policies, reforming divorce laws, and making the child tax credit more generous. Or perhaps Republicans will see these trends and realize they need to do more to help their base.

Ron. J. Lesthaeghe and Lisa Neidert, "The Second Demographic Transition in the U.S: Spatial Patterns and Correlates,"

Reciprocal Beneficiaries

Colorado may have the answer to the issue of benefits for unmarried persons--not same sex civil unions but reciprocal beneficiary benefits. Ramesh Ponnuru has an interesting article here. And here is an excerpt:

The debate over gays and marriage in Colorado has recently taken a different turn from the national debate. Until a few weeks ago, the debate looked familiar. Gay-rights advocates were trying to get the legislature to enact a bill recognizing civil unions (or “domestic partnerships”) for same-sex couples. Social conservatives were trying to get voters to adopt a constitutional amendment banning same-sex marriage. Now conservative state senator Shawn Mitchell has changed the script by introducing legislation that grants some benefits to same-sex couples — with the support of James Dobson and Focus on the Family.

His legislation results from an asymmetry in the debate. One of the reasons many people support civil unions or same-sex marriage is to get certain practical advantages for gay couples. The main reason other people oppose these policies is that they do not want the government to recognize homosexual relationships as marital, or even as akin to marriage.

Mitchell’s idea is to make certain benefits available to gay couples — and to many other pairs of people. His legislation would make it easier, for example, for gay men to arrange to give each other a say in their medical care by becoming “reciprocal beneficiaries.” But two brothers, or a brother and sister, or two male friends, could enter the same arrangement. Thus there would be no recognition of homosexual relationships as such. (Hence Dobson’s support.)

No benefit would be contingent on any assumption by the government that the beneficiaries were involved in a sexual relationship outside traditional marriage. In extending the benefit, the state would be blind to the precise nature of the relationship between the beneficiaries.

Is this a reasonable compromise, one that provides marriage for married couples and reciprocal benefits for everyone else? Do you think gay rights advocates will accept this compromise?

In effect, this scheme recognizes that there is one unique and ideal kind of sexual/romantic relationship--traditional marriage--and many other perfectly good kinds of friendships, relationships, and attachments, which receive reciprocal benefits.

I like this bill.

More States To Vote on Marriage Amendments

Link.

Here is an excerpt:

Idaho's Senate Feb. 15 sent a state constitutional marriage amendment to voters, making it the fifth state to place such an amendment on the ballot for 2006.Idaho joins Alabama, South Carolina, South Dakota and Tennessee -- all of which are scheduled to vote on state marriage amendments this year. That list is expected to grow. Virginians almost certainly will get to vote on a marriage amendment. Other states, including Arizona, Colorado, Wisconsin and West Virginia, may join the list.

The language of the Idaho amendment, although short, covers both the marriage and civil union issue:

"A marriage between a man and a woman is the only domestic legal union that shall be valid or recognized in this state."

Of course, like the Nebraska DOMA currently before the 8th Circuit, these amendments will likely be challenged in federal court once parties with standing come forward.

This is another good topic for a paper.

Scalia Tees Off on "Idiots"

Who disagree with him (link):

People who believe the Constitution would break if it didn't change with society are "idiots," U.S. Supreme Court Justice Antonin Scalia says.

In a speech Monday sponsored by the conservative Federalist Society, Scalia defended his long-held belief in sticking to the plain text of the Constitution "as it was originally written and intended."

"Scalia does have a philosophy, it's called originalism," he said. "That's what prevents him from doing the things he would like to do," he told more than 100 politicians and lawyers from this U.S. island territory.

According to his judicial philosophy, he said, there can be no room for personal, political or religious beliefs.

Scalia criticized those who believe in what he called the "living Constitution."

"That's the argument of flexibility and it goes something like this: The Constitution is over 200 years old and societies change. It has to change with society, like a living organism, or it will become brittle and break."

"But you would have to be an idiot to believe that," Scalia said. "The Constitution is not a living organism, it is a legal document. It says something and doesn't say other things."

Proponents of the living constitution want matters to be decided "not by the people, but by the justices of the Supreme Court."

I think Nino is wrong. Of course, the Constitution is a living organism. I just had a game of catch with the Constitution yesterday. It was such a nice day, and it had been ages since the Constitution and I had some exercise together. So we said, "what the heck; let's toss the ball a little." LOL

Nebraska Defense of Marriage Case

Over at How Appealing there are a bunch of links to reports on today's 8th Circuit argument. And you can access the oral argument in the case by clicking here (RealPlayer required.

And the following is an eyewitness account from a lawyer who attended the argument and knows the case well:

I'll send everyone a complete rundown tomorrow, but in short, things could not have gone better for us today.

Two of the three judges openly stated that they didn't think Romer was applicable to Section 29.

In fact, they really didn't want to hear Matt's standing argument, and they directed him to discuss Romer.

I believe the court doesn't want to decide this case on standing because they want an opportunity to chastise the district court's opinion on the merits.

Loken and Bowman (particularly Loken) were very hard on Tamara Lange. She barely got through her first sentence before they peppered her with questions re: the court's Romer analysis. The onslaught didn't subside for at least 15 minutes.

I helped moot court Deputy Attorney General Matt McNair for this argument, and I am sure he did a wonderful job in defending the People's right to say what marriage is--and what it is not-- in Nebraska.

War of worldviews: Christian schools vs. University of California

Check out this article from the First Amendment Center on the subject of tomorrow's seminar.

Daily Kos Poll: Sad Story

Over at the liberal blog, The Daily Kos, they ran a poll asking readers to vote for which person--President Bush or Osama Bin Laden--the voters despised more. Although at one point Bush was winning by a vote of 70-30 percent, after the Blog begged readers to correct this result, they turned it around and Osama won by a vote of 58 to 42 percent. Here is the Blog's own explanation of the embarrassment this caused them:

Osama Poll

The people who saw the poll actually voted that they despise our President more than someone who is accused of killing 3000+ Americans in a terrorist attack.

This cannot stand. George Bush is wrong on almost every issue near and dear to my heart, but he has done it as our elected leader, whether you voted for him or not. Our anger needs to be unleashed at the polls and the elections. They have now deleted the poll from the site due to its embarrassing results.

The poll should have a third option, despise both, since the enemy of my enemy is not always my friend.

But PLEASE PLEASE fellow members of this site, change the results of this poll to the terrorist, and not our President.

Wow! The Daily Kos rightfully expressed its concern that the site was "being marginalized" by the way its loyal readers voted in the poll and expressed its relief that Osama pulled ahead in the end. As one wag put it, it's nice to see that in the end loyal Kos readers "displayed a sense of proportion."

What if "Piss Christ" Had Been About Mohammed?

Eugene Volokh has a great post about the liberal media and double standards concerning art that offends religion.

Any thoughts?

Why Not Eight Justices?

Here is an interesting student op-ed on the size of the Court from the Harvard Crimson.

Here is a money excerpt:

Many of the court’s most controversial rulings have come on 5-4 votes. It’s possible that these votes were so close because the issues at stake were so contentious. But it’s also possible that 5-4 votes lack the imprimatur of authority that wider margins carry. As the current chairman of the Senate Judiciary Committee, Arlen Specter, R-Pa, said after the court issued a 5-4 ruling in the 2000 case Bush v. Gore: “it naturally raises cynicism when you have so many 5-4 decisions.”

The history of the court in the 20th century is replete with instances of high-stakes cases decided by 5-4 margins. Perhaps the most infamous example is the 1905 case Lochner v. New York, in which a five-justice majority struck down a New York State law capping the number of hours that bakers could work. More than three decades later, when the Supreme Court nullified part of the New Deal legislation in the 1936 case of United States v. Butler, it did so on a 5-4 vote as well. Many of Rehnquist Court’s rulings that invalidated federal laws also passed by 5-4 margins, including the 1995 decision in United States v. Lopez that struck down the popular Gun-Free School Zones Act.

But if the court only had eight members, these razor-thin rulings would be a thing of the past. A 5-3 ruling might be more resounding—and potentially less divisive—than a single-vote margin. Alternately, a 4-4 tie would send the case back to lower courts—either to the states or the federal circuits.

Would those 4-4 ties cripple the judicial system? They might have the opposite effect. Different jurisdictions could experiment with their own approaches to complicated legal issues. They would be “laboratories of justice,” to borrow University of Wisconsin law professor Ann Althouse’s phrase—a phrase derived from Justice Louis Brandeis’ remark that decentralizing government could make the states into “laboratories of democracy.” And as these “laboratories” yield experimental results, their findings might help the Supreme Court justices formulate a more carefully-considered ruling if the once-tied cases ever returned to their docket.

In the current climate, 5-4 decisions establish binding precedents—precedents that may then be reversed if one swing justice leaves the bench. For example, Alito’s ascension to the spot formerly held by Justice Sandra Day O’Connor could conceivably lead to the reversal of 5-4 precedents on affirmative action, campaign finance laws, and partial birth abortion. With eight members, the court would need a two-vote margin to establish a new precedent or overrule an existing one.

What are your thoughts? Do you like this better than my proposal to require the Court to act by a vote of 7/9ths?

One advantage is it could be accomplished by a simple act of Congress.

Political footballs and constitutional law

That's the title of a very interesting LA Times article by Rosa Brooks. Here is an excerpt:

On Monday, my constitutional law class will meet for the first time this semester, and I don't have the slightest idea what to tell the students about the subject we'll be discussing for the next 13 weeks.

I've taught the class before, and by now I know most of the canonical cases as well as I know my own phone number. My problem is that I'm no longer sure there's really a subject to teach.

I don't seem to be the only one confronting this problem. As Harvard Law School professor Lawrence Tribe recently observed: "Conflict over basic constitutional premises is today at a fever pitch. Ascertaining the text's meaning; the proper role and likely impact of treaty, international and foreign law; the relationships among constitutional law, constitutional culture and constitutional politics; what to make of things about which the Constitution is silent — all these, and more, are passionately contested, with little common ground from which to build agreement."

As a result, Tribe says he will not attempt to publish a revised version of his much-read treatise on constitutional law. And if Tribe, no shrinking violet, can no longer figure out how to write a treatise on constitutional law, where does that leave those of us lesser mortals who just want to teach the topic in a way that is honest, useful and fair?

Judge Richard A. Posner of the U.S. 7th Circuit Court of Appeals in Chicago, who also lectures at the University of Chicago Law School, joined the fray last year, writing that most constitutional questions "can be decided only on the basis of a political judgment, and a political judgment cannot be called right or wrong by reference to legal norms…. It is rarely possible to say with a straight face of a Supreme Court constitutional decision that it was decided correctly or incorrectly."

What are your thoughts?

UC Case

Here is a link to the complaint in the University of California case.

2006 Seminar: Constitutional Amendments

For class next week (January 19), each of you should come prepared to discuss your own favorite new amendment to the U.S. Constitution. Please come up with a draft of your basic idea for a new amendment to the Constitution. In other words, if you could add one new provision, what would it be?

For example, if I were Platonic Guardian for a Day, I would amend the constitution to require a 7/9ths vote of the Court before declaring federal or state laws unconstitutional? The idea is that duly-enacted laws and the process of democratic self-government should have a presumption of constitutionality that can be overcome only by a strong consensus on the Court that the democratic branches of government have acted outside the Constitution. This allows the Court to exercise judicial review by consensus, but not by a bare majority vote. What do y'all think about my proposed amendment?

Another proposed amendment is that suggested by Professors Carrington and Crampton. Actually, they propose this change to be adopted by statute, but it might better be adopted as an Amendment to Article III. Their suggestion is basically to appoint Supreme Court justices to serve only for a term of 18 years. Here is a link to their proposal. Please come to class prepared to discuss it.

2006 Seminar: Citing Foreign Law in Constitutional Decisions

Here is a link to a recent debate between Justice Scalia and Justice Breyer on how foreign law should be utilized by American courts deciding cases under the U.S. Constitution.

Harvard Professor Mary Ann Glendon has this essay in the WSJ.

Posner.

Jackson.

Here is a link to a discussion of a very important case, decided by the Swedish Supreme Court, concerning a "hate speech" prosecution of Pastor Ake Green for preaching a sermon on sin and homosexuality. And here is a link to the English translation of that Court's opinion.