2050: Brave New World

At first I thought this was a joke, but after reading it, the authors are serious. Right now it is a scientific forecast, but, believe me, if people begin to want this, it will become a constitutional issue sooner rather than later. Here is the link. Here is an excerpt:

"Forecast: Sex and Marriage with Robots by 2050
By Charles Q. Choi, Special to LiveScience

Humans could marry robots within the century. And consummate those vows.

"My forecast is that around 2050, the state of Massachusetts will be the first jurisdiction to legalize marriages with robots," artificial intelligence researcher David Levy at the University of Maastricht in the Netherlands told LiveScience. Levy recently completed his Ph.D. work on the subject of human-robot relationships, covering many of the privileges and practices that generally come with marriage as well as outside of it.

At first, sex with robots might be considered geeky, "but once you have a story like 'I had sex with a robot, and it was great!' appear someplace like Cosmo magazine, I'd expect many people to jump on the bandwagon," Levy said.

Pygmalion to Roomba
The idea of romance between humanity and our artistic and/or mechanical creations dates back to ancient times, with the Greek myth of the sculptor Pygmalion falling in love with the ivory statue he made named Galatea, to which the goddess Venus eventually granted life.

This notion persists in modern times. Not only has science fiction explored this idea, but 40 years ago, scientists noticed that students at times became unusually attracted to ELIZA, a computer program designed to ask questions and mimic a psychotherapist.

"There's a trend of robots becoming more human-like in appearance and coming more in contact with humans," Levy said. "At first robots were used impersonally, in factories where they helped build automobiles, for instance. Then they were used in offices to deliver mail, or to show visitors around museums, or in homes as vacuum cleaners, such as with the Roomba. Now you have robot toys, like Sony's Aibo robot dog, or Tickle Me Elmos, or digital pets like Tamagotchis."

In his thesis, "Intimate Relationships with Artificial Partners," Levy conjectures that robots will become so human-like in appearance, function and personality that many people will fall in love with them, have sex with them and even marry them."

As the Instapundit likes to say, there's more--read the whole thing.

Incorporation: Structural Provisions vs. Individual Liberty Interests

Does the Nebraska Legislature have the power to declare war against, say, Iran or Canada? Could we argue that the answer is yes, because the power of Congress to declare war has been incorporated and applied to the states via the Due Process Clause of the 14th Amendment?

When talking about the Doctrine of Incorporation it is important to distinguish structural provisions defining the power of Congress--which are not incorporated--and individual rights deemed to be so fundamental as to support incorporation. In the words of Justice Stevens, "the idea of liberty" is the source of the incorporation doctrine.

Our class discussion will focus on incorporation of the Establishment Clause and we will try to determine whether the EC is a liberty provision, a structural provision, or in part the one and in part the other.

We will not spend much time talking about the cases in the casebook other than to point out the tests they employed for incorporation:

1. Palko--In Palko, the Court talks about incorporation of the "freedom" of speech, "freedom" of the press, and "freedom" of religion and says the test is whether an individual liberty interest contained in the Bill of Rights is "implicit in the concept of ordered liberty, and thus, through the Fourteenth Amendment becomes valid as against the states."

2. Duncan v. Louisiana--the test for incorporated individual liberties is whether the liberty in question is among the "fundamental principles of liberty and justice which lie at the base of all our civil and political institutions," or whether the liberty is a "fundamental right" and "basic in our system of jurisprudence."

Does the Establishment Clause create a liberty interest? Or is it a structural limitation on the power of Congress to enact laws "respecting" an Establishment of a national religion? When the Court says that the EC forbids government from "endorsing" religion or "advancing" religion, is it recognizing a limitation on the power of government to, for example, express certain ideas in the public square, or creating an individual liberty interest?

If the latter, exactly what is the liberty interest protected? If the former, then how is it possible to talk about incorporation of a non-liberty, structural limitation on the power of "Congress?"

Is there a difference between a law requiring students to pray in the public schools and a city policy of having a Nativity display in a public park during the Christmas season? What is the difference in terms of incorporation of "liberty" interests?

Nebraska and South Dakota Marriage Amendments: Similar But Different

Here is the Nebraska Marriage Amendment:
Article I-29
Marriage; same-sex relationships not valid or recognized.
Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska.

And here is the South Dakota marriage amendment:

Art. XXI, § 9.
Only marriage between a man and a woman shall be valid or recognized in South Dakota. The uniting of two or more persons in a civil union, domestic partnership, or other quasi-marital relationship shall not be valid or recognized in South Dakota.

How are these provisions different?

Disclosure: I was one of the Framers of the Nebraska Amendment and the sole Framer of the South Dakota Amendment. The South Dakota language is what I wanted to do in Nebraska, but someone (a non-lawyer) made a change at the last moment in Nebraska. I will explain in class.

In Citizens for Equal Protection v. Bruning, Pls. sued the Attorney General and Governor to permanently enjoin them from enforcing the Nebraska Marriage Amendment. Exactly which pending, imminent or threatened enforcement actions on the part of the AG and the Governor were Pls seeking to enjoin? Was either the AG or the Governor doing anything in the present or in the immediately foreseeable future to enforce the Amendment? If not, do Pls have standing to enjoin non-existent and non-threatened enforcement actions?

Under the 11th Amendment, is this really an action to enjoin state officials from taking unconstitutional action, or is this more accurately described as a suit against the State of Nebraska by Pls who have a generalized grievance against the State Constitution?

As an advocate who advised the the AG's office concerning this case, I was delighted that we lost the standing and 11th Am issues, because the 8th Circuit reached the merits and upheld the constitutionality of the Marriage Amendment (a ruling which is now the law of the 8th Circuit). But I continue to believe that the court lacked jurisdiction in this case under both Art. III and the 11th Amendment.

By the way, does the Nebraska Marriage Amendment prohibit same-sex "marriages" in Nebraska? If two people of the same sex "marry" in, say, a church located in Nebraska that performs same-sex "marriages" is this "marriage" prohibited by the Amendment? Does the Amendment prohibit a same-sex couple from living together and considering their relationship a "marriage?" Does the Amendment prohibit a private employer from providing various benefits to same-sex employees and their significant others?

Does the U.S. Constitution require states to recognize as a "marriage" any kind of consensual relationship for which people wish recognition and public benefits? If not all consensual relationships must be recognized, which ones? Why these and not others? We will consider many of these questions in a few weeks when we study the 14th Amendment and equal protection and due process.

My Article on Justice Thomas and "Partial Incorporation" of the EC

Was distributed in class last week.

If you missed it, a few copies are available in the handout racks outside the South Side Faculty Suite.

It is assigned as part of assignment 11.

Speaking of Mary jane

Drug laws raise all kinds of interesting constitutional questions. Here is a recent post from the Religion Clause blog:

Hawaii Supreme Court Rejects Free Exercise Defense In Marijuana Case

In State v. Sunderland, (HI Sup. Ct., Sept. 21, 2007), the Hawaii Supreme Court held that the First Amendment's Free Exercise clause is not a viable defense to a prosecution under state law for illegal possession of marijuana. The court also found that defendant Joseph Sunderland failed to preserve for appeal his argument that use of marijuana for religious purposes in his own home is protected by his right to privacy. Three justices dissented on this point, but, after reaching the merits of the privacy argument, only one of those three
concluded that Sunderland's defense should prevail. (Text of dissents 1, 2, 3).

Unintended Consequences of the "Evolving" Constitution

Sometimes when the Court creates new constitutional doctrine in one area, it causes unintended consequences in another area.

For example, when the court expands Congressional power to regulate local economic activity as interstate commerce (local equals interstate, non-commerce equals commerce--see Wickard), it brings state and local government employment within the scope of the new & improved Commerce Clause. Thus, when Congress seeks to impose federal wage and hour laws on state government as an employer, a clash between sovereigns that could not have occurred under the original Commerce Clause becomes a serious problem under the new & improved Commerce Clause.

Does Congress' power to regulate interstate commerce apply when Congress enacts laws regulating the activities of state government? Who should decide the terms and conditions of employment between state government and state employees performing the functions of state government? Congress? Or state law?

Up In Smoke

Here is the full SCOTUS opinion in Gonzalez v. Raich in which the Court upheld the authority of Congress under the Commerce Clause to prohibit the local cultivation and use of "medical marijuana" as permitted by California law. Don't worry about reading the full opinion, we have an edited version in our casebook supplement.

Here is the oral argument transcript.

Here is an article that suggests that as a result of the case it is federalism that has gone up in smoke. Here is an article written by Pl's counsel, Randy Barnett, and here is an interesting excerpt:

It comes as no surprise that I admire Justice Thomas's opinion. His opinion now establishes that there are not two principled originalist justices on the Court today, but one. To me, this means that when it comes to enumerated federal powers, there is only one justice who is clearly willing to put the mandate of the Constitution above his or her own views of either policy or what would make a better constitution than the one enacted.

And here is an interesting post from the Volokh blog:

Raich and Prosecutorial Discretion: Bloomberg has an interesting story about the consequences (or lack thereof) of yesterday's Raich decision:

Federal law enforcement officials in San Francisco said they don't intend to crack down on medical pot users, who under California state law are allowed to buy and smoke marijuana with a doctor's permission. About 40 marijuana clubs in the city, which operate without interference from local police, are likely to continue in the wake of the Supreme Court decision that federal drug laws ban use of medical pot. "We respect the state law," said Javier Pena, special agency in charge at the San Francisco office of the U.S. Drug Enforcement Agency. "I can't tell you we are going to shut down all those clubs tomorrow. Our efforts will remain targeted at the trafficking organizations. We've never targeted the user, the sick people, the dying people." The DEA in San Francisco has shut down two of the city's pot clubs and arrested two people in connection with club operations in the last two years, said Casey McEnry, an agency spokeswoman. . . . California Attorney General Bill Lockyer said the U.S. has always been able to prosecute medical marijuana users for violating federal drug laws and has rarely done so. "This doesn't represent a big change for the potential for federal enforcement," Lockyer said in a telephone interview. "Our medical marijuana users were always exposed to the possibility of federal prosecution; there haven't been that many."

This is an important point, I think. The idea of the federal government going after very ill people who are growing marijuana for medical purposes strikes many (including me) as an obvious misuse of power, if not an outrageous one. But the reality is that prosecutions, while not nonexistent, are rare. Giving the feds the power to bring cases doesn't mean that they actually will, and history suggests that they usually don't. As a result, Raich doesn't mean the difference between a world with home-grown medical marijuana for the very ill and a world without it. Rather, it means a world in which home-grown medical marijuana is advertised and public versus a world in which the practice is more quiet and the feds mostly look the other way.

And here is an interesting post from Lyle Denniston over at the SCOTUS blog:

Monday, June 06, 2005

Commentary: Justice Kennedy and the "war on drugs"

Posted by Lyle Denniston at 08:30 PM
Justice Anthony M. Kennedy's role in Monday's 6-3 decision in Gonzales v. Raich, upholding sweeping power for Congress to criminalize even personal, medical use of marijuana, may be baffling from the perspective of his accustomed role in supporting state power against overreaching congressional legislation. But there is perhaps a different, and simpler, explanation for his vote with the majority (his silent vote, as Ann Althouse points out in her post below). Kennedy, it has been clear for some time, has little tolerance, judicial or otherwise, for those who are users of drugs, or who resist drug control measures.

Three fairly recent examples suggest that the Justice has a zero-tolerance point of view.

Two are other "silent" votes he has cast: joining the opinion written by Justice Clarence Thomas in U.S. v. Oakland Cannabis Buyers' Cooperative, decided May 14, 2001, finding no medical necessity exception to the Controlled Substances Act, and joining Thomas' 6-3 opinion in Board of Education of Independent School District No. 92 of Pottawatomie County v. Earls, decided June 27, 2002, upholding the most sweeping drug-testing policy yet to come before the Court -- a testing requirement for any public school student seeking to take part in any extracurricular activity, the near-equivalent of a universal testing policy.

The third example is perhaps the most telling: when the Earls case came before the Court, there was evidence that the young woman who challenged the policy, Lindsay Earls, had never used drugs herself. But that did not deter Kennedy at the oral argument on March 19, 2002. Turning red, he told Ms. Earls' attorney: "No parent would send their child to a 'druggie' school, except perhaps your client." He likened a drug test to a rule requiring students to wear a school uniform. With evident sarcasm, he also remarked: "It is hardly a revelation that the government is concerned about drugs among our youth. This is not exactly rocket science."
Perhaps there are some sacrifices of federalism doctrine the Justice is willing to make, as he may have done on Monday.

Class Schedule

Because our classes are for 60 minutes (instead of 50 minutes), we are supposed to cancel 7 classes this semester.

Here are two of the seven:

1. No class Wednesday September 19

2. No class Wednesday September 26

"The lady doth protest too much, methinks."

Here is a statement Justice O'Connor recently made in protest against statements made in Congress decrying "judicial activism":

"I, said O’Connor, am against judicial reforms driven by nakedly partisan reasoning. Pointing to the experiences of developing countries and former communist countries where interference with an independent judiciary has allowed dictatorship to flourish, O’Connor said we must be ever-vigilant against those who would strongarm the judiciary into adopting their preferred policies. It takes a lot of degeneration before a country falls into dictatorship, she said, but we should avoid these ends by avoiding these beginnings."

And here is something I wrote in response:

Well, let's rewrite this eloquent statement of Justice O'Connor just a teensy, little bit:

"I, said Braveheart, am against judicial decrees driven by nakedly partisan reasoning. We must be ever-vigilant against those who would strongarm the People by imposing their preferred policies from the Bench. It takes a lot of degeneration before a country falls into judicial dictatorship, but we should avoid these ends by avoiding these beginnings."

The fact that the Justices are beginning to act so defensively encourages me that they are beginning to get it. Checks and balances are necessary on the judiciary no less than on the executive and legislative branches.

"Depends What the Meaning of 'Judicial Activism' Is"

An interesting article (link) By the way, this article contains links to other articles you may wish to read.

Here is another classic article, STRICT CONSTRUCTIONISM AND THE STRIKE ZONE, by Prof. Doug Linder.

Con Law Book Recommendation

Constitutional Law--National Power and Federalism: Examples and Explanations (Examples & Explanations Series) (Third Edition 2004)

Here is a link to Amazon.

It seems like it got mixed reviews on Amazon, but I like this book a lot. It is the one I recommended to my son when he took Con Law at Minnesota a few years ago. It provides nice summaries of doctrine with some good hypos for analysis. Just a good supplement to your casebook reading.

McCardle Discussion

I really enjoyed today's class discussion. I know large classes are not always conducive to discussion, but please feel free to speak up and debate these important issues about the meaning of our rights and liberties.

I made a few additions to my blog post (immediately below) on McCardle and the Pledge hypo to highlight some of the questions that arose in class today.

Feel free to post comments and to continue the discussion and debate on line.

Diversity and Tolerance For Me, But Not For Thee

The August 18, 2007 issue of World Magazine has a very interesting article about a recent study of religious bias among college professors. Here is the article:


Tenured bigots
Back-to-school: It is a statistical reality that most faculty members don’t like evangelicals, and they aren't ashamed to admit it Mark Bergin
David French has known for years that college campuses are bastions of anti-evangelical bias. He knew it when he served on the admissions committee at Cornell Law School and watched his colleagues ridicule evangelical applicants as "Bible thumpers" or members of the "God squad." He knew it during his tenure with an education watchdog organization that routinely challenged university speech codes bent on silencing evangelical viewpoints. He knew it when he shifted into his current role as director of the Alliance Defense Fund's Center for Academic Freedom, a position from which he's filed numerous lawsuits on behalf of victimized evangelical students.
But only now can French declare with certainty that his anecdotal observations accurately represent a widespread statistical reality. In a recently released scientific survey of 1,269 faculty members across 712 different colleges and universities, 53 percent of respondents admitted to harboring unfavorable feelings toward evangelicals.
"The results were incredibly unsurprising but at the same time vitally important," French told WORLD. "For a long time, the academic freedom movement in this country has presented the academy with story after story of outrageous abuse, and the academy has steadfastly refused to admit that the sky is blue—that it has an overwhelming ideological bias that manifests itself in concrete ways. This is another brick in the wall of proving that there's a real problem."
Unlike much of the previous foundation for that proof, this brick hails from a non-evangelical source. Gary A. Tobin, president of the Institute for Jewish and Community Research, set out to gauge levels of academic anti-Semitism compared to hostility toward other religious groups. He found that only 3 percent of college faculty holds unfavorable views toward Jews. In fact, no religious group draws anywhere near the scorn of evangelicals, Mormons placing a distant second with a 33 percent unfavorable outcome.
Tobin was shocked. And his amazement only escalated upon hearing reaction to his results from the academy's top brass. Rather than deny the accuracy of Tobin's findings or question his methodology, academy leaders attempted to rationalize their bias. "The prejudice is so deep that faculty do not have any problem justifying it. They tried to dismiss it and said they had a good reason for it," Tobin told WORLD. "I don't think that if I'd uncovered bigotry or social dissonance about Latinos, women, blacks, or Jews, they would have had that same response."
Cary Nelson, president of the American Association of University Professors (AAUP), told The Washington Post that the poll merely reflects "a political and cultural resistance, not a form of religious bias." In other words, the college faculty members dislike evangelicals not for their faith but the practical outworking of that faith, which makes it OK.
Other prominent voices from the academy have suggested that the anti-evangelical bias does not likely translate into acts of classroom discrimination. Tobin intends to test that claim with a subsequent survey of 3,500 students in the coming academic year. "My guess: You can't have this much smoke without some fire," he said.
French can readily testify to that. Before the Alliance Defense Fund filed a federal lawsuit last year, Georgia Tech University maintained speech codes forbidding any student or campus group from making comments on homosexuality that someone might subjectively deem offensive. What's more, students serving as resident advisors were required to undergo diversity training in which moral positions against homosexual behavior were vilified and compared to justifying slavery with the Bible.
In another landmark case at Missouri State University, junior Emily Brooker objected to an assignment in which students were asked to write their state legislators and urge support for adoptions by same-sex couples. The evangelical social-work major was promptly hauled before a faculty panel and charged with maintaining an insufficient commitment to diversity. The panel grilled Brooker on her religious views without her parents present, convicted her of discrimination against gays, and informed her that to graduate she needed to lessen the gap between her own values and the values of the social-work profession.
The Alliance Defense Fund sued Missouri State on Brooker's behalf, pressuring the university into dropping the discrimination charges and paying for Brooker to attend graduate school. An independent investigation into the incident found such widespread intellectual bullying throughout the university's school of social work that investigators recommended shutting the program down and replacing the entire faculty.
Earlier this year, the Missouri House of Representatives passed the Emily Brooker Intellectual Diversity Act, a bill now pending Senate approval that would mandate efforts from the state's public colleges to prevent "viewpoint discrimination." The AAUP has written the state Senate urging that it not pass "such dangerous and unnecessary legislation" because "there is no evidence that a widespread problem exists."
But Robert Shibley, vice president of the Foundation for Individual Rights in Education (FIRE), told WORLD his organization can hardly keep up with intellectual intolerance and free-speech infringements against evangelical and conservative groups. "College campuses overall are not living up to the ideal of having a marketplace of ideas, of having true intellectual diversity to go along with racial and religious diversity," he said. "In too many cases we see groups—evangelical Christians and conservatives, primarily—face sanctions or punishments that are more severe than those of groups with other viewpoints. Or they're punished for things that other groups wouldn't be punished for at all."
French says the continued advancement of evangelicals to high places within academia is critical to effecting change. During his stint on the Cornell Law School admissions board, the longtime lawyer and evangelical stuck up for at least one highly qualified applicant whose previous work as a part-time pastor nearly generated a rejection letter.
"I said, 'Wait a minute. My own religious background makes this poor guy look like a heathen, and I'm on this committee. I think we should give him another look,'" French recalls. "I actually had people, to their credit, come up and apologize to me afterwards for adopting an unthinking stance towards this student. Having a living, breathing, in-the-flesh Christian with ideas and thoughts and whom people could occasionally respect made a difference."
That's multiculturalism at its best.


Any thoughts?

"Michigan federal district court upheld the inclusion of churches in a local government's grant program for brick-and-mortar projects"

From Religion Clause blog:

In an important Establishment Clause decision yesterday-- apparently a case of first impression-- a Michigan federal district court upheld the inclusion of churches in a local government's grant program for brick-and-mortar projects. American Atheists, Inc. v. City of Detroit Dowtown Development Authority, (ED MI, Aug. 8, 2007), involved a challenge to a Facade Improvement Plan (FIP) designed to enhance the appearance of a portion of the city of Detroit in anticipation of the 2005 Major League Baseball All-Star Game and the 2006 NFL SuperBowl. Under the program, approved applicants could receive up to 50% of the cost of improvements to building facades and parking lots-- with specified upper limits on reimbursements. Among the projects funded were nine by churches.

Focusing particularly on the Supreme Court's 2000 decision in Mitchell v. Helms, the court held the fact that churches are pervasively sectarian institutions does not automatically disqualify them from participating in an otherwise permissible aid program. It also held the fact that funds are granted directly to churches does not invalidate the FIP so long as the program does not discriminate on the basis of religious sect and so long as the reimbursements do not amount to government endorsement of a church's message. The grants are not forbidden just because they may free up funds for religious purposes that the churches would otherwise have used for building repairs.

Applying these criteria, the court upheld grants for most of the church repair projects, but found that aid to three projects was unconstitutional because it would be perceived as government support for the advancement of religion. The prohibited projects were repair of two stained glass windows displaying religious images and projects involving monolithic signs that "identify and solicit the churches as sites of Christian worship".

The decision is covered today by the Detroit News and in an Alliance Defense Fund release yesterday.

Diversity Schmiversity

The downside of diversity:A Harvard political scientist finds that diversity hurts civic life. What happens when a liberal scholar unearths an inconvenient truth? Here is an excerpt from the Boston Globe article:

IT HAS BECOME increasingly popular to speak of racial and ethnic diversity as a civic strength. From multicultural festivals to pronouncements from political leaders, the message is the same: our differences make us stronger.

But a massive new study, based on detailed interviews of nearly 30,000 people across America, has concluded just the opposite. Harvard political scientist Robert Putnam -- famous for "Bowling Alone," his 2000 book on declining civic engagement -- has found that the greater the diversity in a community, the fewer people vote and the less they volunteer, the less they give to charity and work on community projects. In the most diverse communities, neighbors trust one another about half as much as they do in the most homogenous settings. The study, the largest ever on civic engagement in America, found that virtually all measures of civic health are lower in more diverse settings.

"The extent of the effect is shocking," says Scott Page, a University of Michigan political scientist.

"The Only Supreme Court Editorial You Need To Read"

I was searching the archives of this blog, when I found this oldie you might enjoy.

Over at the Volokh Conspiracy, Orin Kerr has this very efficient and very funny model editorial complete with fill-in-the-blanks for liberals and conservatives to use:

The Only Supreme Court Editorial You Need to Read:

Lots of editorials and opinion pieces are being penned about the future of the Supreme Court these days, and it occurs to me that all of this writing is terribly inefficient. We could condense most of the different editorials and opinion pieces into a single essay, with one caveat: you just need to insert the proper words depending on whether the authors are liberal or conservative. Here is that single essay, with the bracketed sections containing the word or phrase to insert for liberal authors followed after the slash by the word or phrase to insert for conservative authors.

The Future of the Supreme Court
July 7, 2005
The Washington [Post/Times]

The retirement of Sandra Day O'Connor presents a major opportunity for President George W. Bush. It is essential to our Nation that he choose her replacement wisely.

Although nominated by Ronald Reagan, Justice O'Connor turned out to be surprisingly [enlightened/unprincipled]. Her jurisprudence was [pragmatic/random], which tended to frustrate [conservative wingnuts/believers in a written Constitution]. While Justices Scalia and Thomas voted to [turn back the clock/ follow the Constitution], Justice O'Connor frequently voted in a way that was quite [reasonable/result-oriented].

News reports speculate that President Bush may nominate Attorney General Alberto Gonzales, Jr. to replace Justice O'Connor. If so, it will be a major [relief/disappointment]. While Gonzales has a proven record of loyalty to the President, he does not appear to be a [nut/conservative]. He [may not/ may] vote the right way in many cases, but [he is as good a nominee as we're likely to get/ I doubt it].

Other individuals often named as possible nominees to replace Justice O'Connor are much [worse/better]. Nominating an [extreme/actual] conservative like J. Michael Luttig would signal to all Americans that the Constitution is [on life support/back].

The conservative base has made its position loud and clear: it wants Bush to nominate a strong conservative to the Supreme Court. He should [ignore/listen to] them. The stakes are too high to do otherwise. The fate of our Constitution, and our Nation, hangs in the balance.

Analyzing "Slippery Slope" Arguments

From Volokh Blog:

Slippery Slopes in 10 Pages:

Ward Farnsworth's The Legal Analyst includes a chapter on slippery slopes that's generally based on my Mechanisms of the
Slippery Slope article.

As is usually the case with Ward's work, it's extremely well written, and I can't imagine a better 10 pages on the subject. If you don't want to read my whole law review article (and who really wants to read whole law review articles?), read Ward's
10 pages instead -- many thanks to Ward and his publisher for letting me put the chapter on my site -- or, better yet, read his
whole book.

I have heard good things about this book and I strongly recommend you read the linked excerpt on "slippery slopes" an issue that often arises in Constitutional Law (an EC version is "If we allow Nativity displays, we take a step on the slippery slope toward theocracy").

Nebraska "Judge orders prison to meet religious diet needs"

From the National Paper of Record:

Tecumseh State Correctional Institution officials and a Muslim inmate are attempting to revise food service at the prison so the inmate can have access to kosher foods.

U.S. District Judge Joseph F. Bataillon ordered the revision after the inmate, Mohamed El-Tabech, sued corrections officials under the U.S. Constitution and the Religious Land Use and Institutional Persons Act.

The 2000 act prohibits governments from imposing a substantial burden on inmates’ religious practices without a “compelling governmental interest” and unless the burden is the least restrictive to achieve that interest.

El-Tabech said in the 2004 lawsuit that prison officials were violating his rights under the Constitution and the act by denying him access to a kosher diet and interfering with his prayer schedule. El-Tabech, 49, also claimed he needed to shower daily in keeping with beliefs he based on the Quran. He is currently permitted three or four showers a week.

Bataillon held a non-jury trial on the lawsuit was in
Omaha in May.

Attorneys for the state argued El-Tabech’s diet requests would
increase the costs of food and food preparation, and might create a perception of favoritism among other inmates. In addition, the state said that El-Tabech’s food request, if granted by the judge, could trigger an increase in religious
diet requests from other inmates.

Bataillon said in an order last month that the state failed to offer any evidence about the economic consequences of providing
inmates kosher meals or kosher items at the canteen.

The Nebraska Department of Correctional Services does not provide a kosher food option for any inmates at present, the judge said in the order.

Prisoners can abstain from eating religiously prohibited foods and still maintain a nutritionally adequate diet, and they can order items through the canteen, although, Bataillon wrote, “It is not possible to know what foods are kosher before ordering.”

The judge also noted that the defendants are already furnishing prisoners kosher meals at Ramadan “without incident or impact.”

“According to evidence already adduced at trial, ready alternatives already exist to satisfy El-Tabech’s dietary requirements at a (minimal) cost to the prison,” he wrote.

Bataillon gave the state and El-Tabech 60 days from July 17 to decide on the feasibility of modifying the canteen list to indicate kosher items and offering El-Tabech or any other inmates prepackaged kosher meals.

In addition, the judge ordered the parties to consider offering
inmates kosher foods — boiled eggs, uncut or unpeeled fruits and vegetables, for
example — that are already available in the kitchen.

Bataillon rejected El-Tabech’s request for daily showers, writing that the sink in his cell was a “reasonable alternative” on non-shower days.

The judge ordered that El-Tabech’s prayer schedule be posted so that guards can modify activities to reduce disturbances to El-Tabech’s prayer. Bataillon said he did not expect the Tecumseh to alter prison schedules to accommodate El-Tabech’s prayers, however.

Attorneys for El-Tabech could not be reached for comment Thursday.

Holley Hatt, a spokeswoman for Attorney General Jon Bruning, said she expected the prison to meet the judge’s deadline.

El-Tabech, formerly of Lincoln, began serving a life sentence in 1985 for the murder of his wife, Lynn El-Tabech.

Knino Knows

Justice Scalia on judicial hegemony. Link.

Here is an excerpt:

U.S. Supreme Court Justice Antonin Scalia railed against the era of the "judge-moralist," saying judges are no better qualified than "Joe Sixpack" to decide moral questions such as abortion and gay marriage.

"Anyone who thinks the country's most prominent lawyers reflect the views of the people needs a reality check," he said during a speech to New England School of Law students and faculty at a Law Day banquet on Wednesday night.

The 70-year-old justice said the public, through elected Legislatures -- not the courts -- should decide watershed questions such as the legality of abortion.

Scalia decried his own court's recent overturning of a state anti-sodomy law, joking that he personally believes "sexual orgies eliminate tension and ought to be encouraged," but said a panel of judges is not inherently qualified to determine the morality of such behavior.

He pointed to the granting of voting rights to women in 1920 through a constitutional amendment as the proper way for a democracy to fundamentally change its laws.

"Judicial hegemony" has replaced the public's right to decide important moral questions, he said. Instead, he said, politics has been injected in large doses to the process of nominating and confirming federal judges.

I think Scalia has this about right. Despite the Court's complaint about the majority imposing its morality through laws enacted in the democratic process, the Justices are indeed imposing their moral views when they decide cases like Roe and Lawrence. There is no reason to think that a body of unelected lawyers has a better functioning moral compass than the People who are supposed to rule in a free society.

I also appreciate Scalia's willingness to speak up at a time when some of his colleagues on the Court are, like Archie Bunker, trying to stifle criticism of the Court and judicial activism in the name of "judicial independence." Wasn't it Franklin who said what makes America special is "here the People rule"?

I can't help it! Here is another excerpt:

"He said code words such as "mainstream" and "moderate" are now used to describe liberal judicial nominees.

"What is a moderate interpretation of (the Constitution)? Halfway between what it says and halfway between what you want it to say?" he said."

"Make Sure That There Is Nothing in the Religious Upbringing or Teaching That the Minor Child Is Exposed to That Can Be Considered Homophobic":

Here is a post at the Volokh blog that deals with whether a parent's religious views about homosexuality can be taken into account in a custody decision.

Any thoughts?