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Friday, February 28, 2014

Rev. Joe Book Review: Converting Kate

I re-read this book, discussed here. The author was inspired from personal experience. She is not listed as writing another book since then, which is unfortunate. Showed talent. To preview a bit, it concerns a teenager whose dad died (a skeptic), pushing her to doubt the fundamentalist faith of her mom. Deals with a new town etc.

I am Curious

Two versions (yellow and blue) were made using extensive footage for this 1960s Swedish art film that might have a few scenes of nudity, but if you are looking for porn, look elsewhere. A bit of male nudity/touching penis, which still is taboo even today, might have got it in trouble. Unlike some tacked on, this actually has "social value," even a MLK interview!

A decade ago ...

A comment in a blog comment on the release of Lawrence v. Texas. The "time" is here.

Grapefruit Season Time

I make fresh grapefruit juice (half-grapefruit per 48 oz. or so of water), but darn if there is only pear juice in the frig at the moment. Anyway, Colon is a bit old and Chris Young a tad expensive, but if the Mets can handle getting a Tejeda replacement, the off-season might seem more satisfactory. Ike Davis is enough stress. Reliever could help too.

Thursday, February 27, 2014

Nixon on Privacy

Good catch. Full remarks cited in comments.

Veto of Arizona SB 1062

Along with red states not rejecting Medicaid expansion, you take victories when you can, and the veto of the right to discriminate bill is appreciated. It is helpful to explore its breadth. See, e.g., here. Plus, it shows that use of broad generalities (comments) like "religious liberty" as applied to public places ("private" businesses too) takes you only so far.

"Federal Judge Urges Full Equality for U.S. Territories"


Wednesday, February 26, 2014


SCOTUS is back from a break and various things have occurred thus far as seen at SCOTUSBlog and here (see my comment) as to three justices voicing concern about the latest complications with lethal injection drugs. This includes orals on EPA regulations and cases touching upon searches of the home and other matters. Nothing landmark, but interesting dissent by CJ Roberts in a pre-trial forfeiture case involving funds for lawyers.

TV Watch

The Fosters (aka "how did Brandon and/or Marianna act stupid this time?") was okay as was the return of Rizzoli & Isles, which not only had a "hey, it's the kid from Shake It Up," but a sad "death watch" for a regular who viewers know committed suicide in real life.


Read a couple pretty good books. One, The H. L. Hunley: The Secret Hope of the Confederacy about an attempt to successively use a submarine offensively and the later discovery of the lost ship. Another, full ride, a young adult book about a teen daughter whose father's crimes lead to shame and fears of danger. It covers a lot of ground, ultimately a sort of coming of age story. The author is a leader in YA fiction.

Tuesday, February 25, 2014

"The Banality of Wrongful Executions"

It is not my leading reason for opposing the death penalty, but the numbers cited here suggests perhaps I undersell it a bit. Also, one reason is that so few murderers actually get sentenced to die or avoid execution in a range of ways. Good read.

Saturday, February 22, 2014

RIP George Anastaplo

He lost his case but not everyone is the subject of a dissent read at the justice's funeral. Sounds like he had a long and productive life. Need to read something by him now!

Few Things

Working off a laptop this week -- those things are kinda annoying. Keys too small. Second, why isn't the minimum wage tied to inflation or something? Finally, looking at Kermit Roosevelt's myth of judicial activism book. Spirit is okay, but discussions of particulars pretty thin. And, the substantive due process 'dis is as usual pretty weak.

Tuesday, February 18, 2014

[insert name here]

I grew tired of Chris Hayes some (the tie might have been the clincher ... really Chris?) and haven't been watching Melissa Harris-Perry either, but well, knew she wasn't pregnant. So, where did the baby come from?! She explains. Don't see a name.

Could marijuana reforms end up making our roadways much safer?

Sometimes, you have to think a bit outside the box. Like "value voters"? Sure. They aren't just conservatives. Liberals have values too.

The Pauline Approach?

Paul in Galatians opposed those who argued that a follower of Christ could not eat with Gentiles who were not circumcised -- it was a sign of a major debate in the early years of Christianity, Acts 15 trying to paper over differences aside. Jesus might have associated with various types of sinners (though some gospels verses suggest he generally stuck with Jewish sinners), people then and some now think it immoral to associate at all with certain types of people based on belief or the like. 

This event came to mind when reading Andrew Sullivan's analysis of the "Christianity" of a Kansas bill (like anti-abortion laws, the effort isn't limited to one state) that would increase the ability of people (even public officials) to discriminate against gays (or more than you can now) for religious reasons.  Sullivan:
Now, these bills involves public conduct (accommodations and even public officials in some cases -- after all, who was left defending the anti-SSM marriage laws in one or more states? officials who provide the licenses!), but he makes a more general point here. And, putting aside some will not give much credence as to what that Catholic anti-Christ says, I think Sullivan is ultimately correct. He is also right about how horrible such bills are as to long time strategy.  And, as suggested by the lunch counter example, I fail to understand why sexual orientation should be different here than race or gender, including the "let's compromise and make it only somewhat harder for gays" approach.

As some district court judges have been reminding us as to SSM, tradition alone will not save actions in this area. But, there is a familiar feel to these arguments.


* The title of this piece might be deemed ironic, given a few verses from his epistles often are used against gays and lesbians. Still, whatever sorts of people he was talking about, did he not sell them tents or something?

Monday, February 17, 2014

The Fosters

Nothing profound -- the opening group scene was nice but not grand, e.g., -- but enjoyable episode. Brandon is upping it a notch in bad. Mike's "not gf" is a familiar face.

A bit of story and acting talent works here too ...

Beverly Lynne, who I like along with [Brandin] Rackley because she actually has some personality and isn't just like a walking silicone experiment, is great here.
A bit of love for two stars of the soft porn market. I have commented now and then about late nite porn and lots of it is lame. One episode of some series had a basically normal couple trying to have a baby. We had nudity and sex. It was quite good. Little goes a long way here.



Bad history: President's Day Edition

Commercials are so imperfect in this department. Heard one connecting Lincoln with the transcontinental railroad. Not really that connected and it was completed years after he died.

Sunday, February 16, 2014

Good Luck Charlie

Ah. It's time for another Nick or Disney show to end its run. This show was very good but weaker of late. A telling thing for those who paid attention is the child actress became much less comfortable on camera. Note her in the final video diary (really? come on folks!). Overall, however, the series finale was pretty good. Not completely, but nice send-off.

The Croods

The film is somewhat lacking in story for its length but looks great plus the voice work (especially Nicolas Cage and Emma Stone) was good.  It concerns a cautious cave family that is forced to change -- some dramatic license as  to reality (rather advanced language), but not quite "Flintstones" territory. Academy Award nomination. Nice extras.

Rev. Joe -- Girls of Nazareth (and Riyadh)

If Jesus had a sister, she was lost to history.

- description on back of Leslie Cannold's fictional The Book of Rachael
The best we get really (other than some later account, like those who discussed Jesus' younger years and such) is Mark 6:3:
James later became the leader of the Jerusalem Church (he is not James the Apostle), even mentioned by Josephus. There are also some accounts that have Simon* follow him after James was killed. The Jerusalem Church from my understanding lost prestige after the Jewish Wars and things moved to Paul and Peter ... and Rome. The epistles of James and Jude (unclear authorship) as well as some often forgotten references that show James to be so important that Peter worries about his opinion (e.g., Paul saying that Peter stopped eating with Gentiles)  provide reminders.

I have not read the book yet. Leslie Cannold is best known as an Australian feminist and scholar, who wrote a very good book entitled The Abortion Myth that helps reaffirm my belief that choosing abortion can be a moral choice (that is moral too, but either way, it is a moral choice).  The Bible has a lot of potential as a source of material for female characters, including alternative viewpoints. More films should be done about it. Did not really like The Testament of Mary: A Novel by Colm Toibin, but it is an example of the genre.  Peter O'Toole was reported to have a small role in an upcoming movie on Mary as well.  

Meanwhile, there is Girls of Riyadh, the "fictional tale of the loves, dreams and disappointments of four young women in the capital" of Saudi Arabia -- as one account of the resulting controversy (that spells her last name wrong) summaries. The author is a twenty-something Saudi who at the time (mid-2000s) came to the U.S. to study dentistry (a family business) and also is listed to now have a technical book out on that subject.  But, there is clearly some writing talent in the family too.

The book is set up as a mysterious young witty female Saudi talking about her friends in a series of emails provided to people on a distribution list on Fridays.**  Each account is prefaced by a short introduction with excerpts from various figures who would be familiar to the original Saudi audience (plus a few others, including Mark Twain!), personal sentiments from the author and comments related to all the attention and feedback she received from the rather revealing accounts. The four young women are all well off Saudis (suggested by their travels alone), but mostly unlucky in love with many of the men put in a negative light. We are coyly told at one point that as new husband tried to do something that really offended his wife (who does like Sex in the City -- must be a Charlotte!) without being told what it is and the book is not explicit in that sense. But, talk of homosexuality, lying about cosmetic surgery, a wickedly on point summary of various types of men and women and so forth make the controversial reaction unsurprising.

It is true that it has "chick lit" qualities and even as to the Saudi life, it provides only a certain window into another world. Still, even on that level, it is pretty engaging chick lit.  Also, the book does provide some insights into another world, one that is not so different in various ways, but enough to be notable.  The life on a Saudi college campus or a young woman going to med school?  The meeting before a wedding.  Touches of regional poetry and the like.  Next, I really liked the voice of the narrator. She is playful while also being intuitive of the feelings of the four women being discussed. Each one are their own person with stories we care about.  A few years of their life is handled well.

The book is recommended and even those who don't like the genre might like at least some of it -- the introductions alone! Here is The Guardian review.  As to its suggestion that the book is still "conservative" in certain ways, well, what does one expect from a well to do Saudi women really?  The summary in the review suggests the book is pretty risque all the same, even if author said in an interview a couple years ago that Saudis have "nothing to revolt against like neighboring countries."

Well, don't know about that, but let's continue to hear their voices.


* The brief Wikipedia page and this entry from the Catholic Encyclopedia suggest "Simon" here might not even be Jesus' brother (or half-brother), but the child of another person.  In context, seems to me they are all his siblings -- make them half-siblings if that is required for doctrinal reasons.

** As she notes in a footnote in the English version, Thursday and Friday is the weekend pursuant to Friday being the Muslim holy day.  The footnotes provide useful information about various references that might confuse Western readers. She notes she also had to change some of the language, since some of the local dialect used would be lost in translation.  Didn't we talk about the perils of translation recently?!

One thing that is striking is that the a lot of the material will sound familiar to the average young woman. Reference to one character being too much like the lead in the film Clueless. Two characters taking part in chat-rooms and instant messaging. A certain modern woman mentality in the narrator, even if she is a Saudi  Muslim woman (be sure to include the proper honorific when mentioning Muhammad!).  Then, again, it is written by a member of the elite, who was at the time studying in this country. 

Saturday, February 15, 2014

Hockey is Not My Thing But ...

Pretty exciting finish today, if not quite "Miracle on Ice" territory.
Meanwhile, in the "is everyone gay" area ... good job, really!

Money is Not My Thing

Someone asked me about minimum wages recently and -- I'll be honest -- looking into it was the first time I realized my state just raised it to $8 (will be $9 in 2015).  Overall, read a bit on this subject and basically economics is not my thing. Seems to me that a minimum tied to inflation is fair. The value of unemployment benefits to stimulate also sounds reasonable.

Friday, February 14, 2014

Virginia is for lovers

Update: The original reports only had links to .pdf files that I had some trouble downloading -- on my home computer, some just plain don't load very well.  Here is a good "Scribd" copy that is often available but was not at first in this case. 

Note, e.g., in the facts how not being a spouse led to failure of visitor's privileges. Such things are much less likely to happen these days, but being "married" or a "spouse" still has a certain social (and at times legal or official) cachet that even "civil union" or the like does not.  Likewise, even when possible, certain things cost more time and effort. By now, these facts are old news ... though for some, I don't think they are.
Loving v. Virginia held that the right to marry cannot be denied on grounds of race.  Replace "race" with "sex" (or "sexual orientation," which hits to the motivations and intents of the laws, "sex" explicitly the classification made) and the case can be made to include same sex couples. Some strongly dispute that. I'm with Mildred Loving.

I didn't see reports until now, good timing really, but a federal district judge out of Virginia added to the stream of rulings holding that same sex couples have the right to get married by the state.  Like the judge out of Utah, she saw it as a "right to marry" case --  the couples “ask for nothing more than to exercise a right that is enjoyed by the vast majority of Virginia’s adult citizens.” Meanwhile, equal protection is also not met, even using a lower level of scrutiny pursuant to current circuit law.

The state, after the recent elections, did not defend the law -- two state clerks who issue marriage licenses stood in to made the case.  The state from my understanding supported a stay (with was granted) to avoid recent actions where couples rushed to get married until one was granted by a higher court. It would be likely the 4th Circuit, one of the more conservative ones, would grant one -- even noting the 10th Cir. did not (state bumbling helped), the later move by the USSC there (if without comment) would probably be informative.  No federal appellate court has dealt with the issue on the merits post-Windsor though the 2nd and 9th have granted heightened scrutiny to sexual orientation.

The opinion starts with a quote from Loving's statement. Happy Valentine's Day to all, black or white, young or old, gay or straight.


The Bible has some good stuff in it. I Corinthians 13 is one of my favorites [NRSV except as noted]:

The "through a glass, darkly" translation appeals to me though it is not found in various versions -- this one, e.g., used a different phrasing. Thus, I inserted it in! Seriously, I discuss the point here, including how one version uses "charity" for "love."  The letter has some bits that might be missed -- a sort of apocalyptic message ("the complete comes").

I know a couple who is choosing this time to try marriage again, after a first attempt that failed. The woman was married once before that! So, these two should forewarned by now, but good luck and wishes all the same. As Justice Douglas (married four times) once wrote:
It is not always about love, but it helps.

Thursday, February 13, 2014

The rapist/murderer of Jimmy Ryce (9) executed

CHAVEZ, JUAN C. V. PALMER, WARDEN, ET AL. The application for stay of execution of sentence of death presented to Justice Thomas and by him referred to the Court is denied. The petition for a writ of certiorari is denied.
This is the last of three brief USSC orders, which is typical of a large part of the few orders one finds on the website (aside from periodic scheduled days when groups of orders come down; many actions -- such as Alito recently temporarily staying an execution -- are not located there).  That is, brief denials of last minute applications to stay execution.  Now and then, one or more justices might note their disagreement.  A bit notable.

I'm against the death penalty, though some executions are harder to take than others. For instance, a person was recently executed for killing a store owner during a robbery, something that was found to have been premeditated (though his wife was also shot but not killed). This to me should not be a death penalty offense, even if you support the death penalty. It is a horrible crime that warrants a long prison sentence. Nonetheless, as noted in a case back in 1980:
There is no principled way to distinguish this case, in which the death penalty was imposed, from the many cases in which it was not.
Yes, a premeditated murder of this sort is "distinguishable" enough to warrant more prison time, maybe even a life sentence given his record. But, if we look at the actual grouping of those executed, is this the "worse of the worst"?* As Justice Marshall noted separately (and Justice Blackmun ultimately rested his opposition on), even if one accepts the death penalty, the inability to put forth a process that non-arbitrarily as a whole separates the wheat from the chaff here makes the penalty on that ground alone unconstitutional.  Or, at the very least, bad policy.  This is useful to remember -- constitutional sounding language can be used to address good policy. See, e.g., the thread in the Holder voting rights issue I referenced the other day.
The fact that each of us is unique is a proposition so obvious that it surely requires no evidentiary support.
Justice Stevens eloquently discusses the problem with "victim impact" evidence being used during the sentencing phrase of capital trials.  In a later case, he included a link to one of the two videos found on the USSC website attached to cases (he has the other one too), one that provides a sort of home movie of the victim. When these cases come up and people are concerned about the legality of it all and such, many call attention to the victims. One person at Sentencing Law and Policy Blog, a corporate attorney from my understanding, is quite visceral on the point, opposing those who put in place moratoriums of executions and the like as moral reprobates who spit on the victims, more or less.  But, there are rules in place here. They apply even to convicted murderers.

During a trial, victims often have a hard time of it, simply testifying or watching hard, even without the defense in various cases trying to call doubt on what they said or trying to block what they deem justice.  But, execution in the name of victims, such as the little boy (picture here) in this case doesn't really do it. What at the end of the day does executing an arbitrary number of people do there? Some oppose the death penalty, sometimes the feelings split among the survivors.  As noted in Stevens' concurrence in Baze v. Rees, our system of execution draws out things and complicates the lives of victims in some ways that counsel not having it occur.  In Kennedy v. Louisiana, some victim advocates opposed execution for child rape for various reasons.  The crime here is also against the state, one reason why death eligible defendants don't suddenly not get the death penalty if the victims' family opposes it.

More about the facts of the crime and execution can be found here, including a summary of his legal claims (including the usual concern about lethal injection procedures, a trend these days).  Yes.  But, would such would-be child abductors suddenly not do it because they will get life imprisonment?  Some people in prison at some point rather die. I surely don't begrudge the father here his opinions on the matter -- people think death is worthy for much less than the despicable act at issue here.  And, I am glad he and his family used the horrible crime to do some good.  Plus, it is fitting and proper to each time not just report the murderer and his (as is usually the case) story, but talk about the victim or victims.

I just don't think executing people is the appropriate answer, and such "worst of the worst" type crimes (if there is a small list, something like this probably is on it) do not change my mind. There are various reasons to oppose the death penalty.  Even in cases of this sort, repeatedly, there is some concern with the procedure involved. Torture is not appropriate even for Bin Laden. The death penalty is not "torture" (though a few times at least, the actual execution was inhumane and a lingering death) but it is such a categorical wrong.  If a person seems pretty guilty but there is even some reasonable doubt type evidence not allowed, people repeatedly are worried in these cases, even if the crime is horrible. This case is likely a more "pure" case than that and I can rest on principle. Still, even beyond that, how can be assure only the worse of the worst with no significant problems will be executed? Are the rest just allowable?

Don Ryce himself does not have the right to shoot the person here to gain justice.  Few would blame him if he did.  But, he could not. I don't think the state should either. I put Jimmy Ryce and his father here to show that I am not forgetting about them. Execution in their names doesn't do it for me.**


* Elsewhere, I was criticized for using this colloquial test because there is no legal rule of that sort. Cf. Kennedy v. Louisiana:
Yes, the ruling specifically concerned not executing a rapist of a child (notable in the case at issue), but past rulings drew lines even there. As do each and every state -- murder is not death eligible without a "plus."

**  Anyway, as I noted, it doesn't really work like that.

Other cases exist where families of the death penalty made their opinions known and the person was still executed. A local case involved two brothers who had different opinions. It might somehow be appropriate to factor in such sentiment somehow but what ultimately matters is what the legislature, prosecutors and juries decide within certain legal limits.

Wednesday, February 12, 2014

My Future Boyfriend

Sara Rue is very "Sara Rue-y" in this romantic fantasy.  Enjoyable holiday fare. 

Judge: Kentucky Must Recognize Same-Sex Marriages

It is a bit off to speak of "Justice Kennedy" instead of the Court in Windsor, and the opinion does provide a test, but this twenty-three page ruling (specifically about recognition of other of states' SSMs but clearly supporting more) covers a lot of ground very well. Notable too the state's defense appears to be a bit lackluster; meanwhile in Nevada.

42 (Jackie Robinson)

I was watching a bit of last night and hey ... that racist Philly manager (Ben Chapman) is being played by good old boy "Wash" from Firefly! Ron Darling (Mets announcer) made an unexplained dismissive comment among general praise as to the accuracy of the movie. Well, that's film for you. Movie looks a bit corny, but only saw a bit to be fair.

Rules of Engagement

WGN had this on 12/12:30 and then 11:30/12, good end of the day watching, but recently took it off. Have some sort of mini-marathon tonight. Pops up other places too. This was one of those shows the lingered on, usually airing mid-season (the first season was only seven episodes, starting right after the Super Bowl, which long term you think -- hey, this was a pretty good show overall.  Not quite Wings, which used to be the king of syndication on certain channels, but something like that.    
Two couples and their single friend deal with the complications of dating, commitment and marriage. It looks at different relationships in various stages, starring Patrick Warburton and Megyn Price as a long-married couple, Oliver Hudson and Bianca Kajlich as newly engaged sweethearts, and David Spade and Adhir Kalyan (the latter added in season 3) as their still-single friends. They often gather to enjoy a meal at "The Island Diner".
That's the Wikipedia summary. Patrick Warburton (lovable big doofus) and David Spade are familiar faces playing familiar roles (Spade is more of a sex crazed sort here, but his asshole qualities with some implication that deep down he is not totally a jerk is pretty standard). The other guys are good too, Oliver Hudson (Goldie Hawn's son) over time having his character get more and more stupid.  I have noted here and elsewhere that the women, especially Bianca Kajlich (playing Jen), in time was just not given enough to do.  The women in effect played straight roles to their goofy mates, but when given a chance, are good actresses too. Megyn (Audrey) particularly has some moments where we see perhaps why she hooked up with Jeff.  AK as Spade's assistant also was good. As were a few guest stars, though a gay friend story-line didn't work too well.

The series was pretty good thru its run though it had some off episodes. Re-watching some of them (just watched S1 on DVD, with some extras), there are some pretty risque bits. Adam confusing "anal" for "annual" is but one of various sex jokes or a great episode where Spade's girlfriend kept on saying double entendres, apparently without knowing it.  The clip I found is one of the "you are being bad" episodes (probably shouldn't be seen as too representative, but the show has its moments*).  Given the length of the run, that engagement is pretty long. As is the trying to have a baby story-line, which pops up in S1, eventually involves a lesbian surrogate and is completed in the series finale where not only does she give birth, but it is announced that Audrey herself is now pregnant.**

 It is a sign of a good (and comfortable) show that you can watch the same episodes again and again while still enjoyable them. You see this, e.g., on shows like M*A*S*H and the like. This is one of those shows.  The last episode of The Fosters, e.g., is one I probably could watch again. Felt that way about the first batch, not so much the next few.  I plan to watch this show straight thru on DVD (the last season isn't available at my library, but it might be soon), though I might skip an episode here or there in the process. Enjoyable, not profound, but enjoyable, things should be honored from time to time.  Kudos ROE.

And, happy Lincoln's Birthday


* Another bit that you might think would not get approval has Audrey going along with it when her co-workers think she is pregnant, the show ending with them thinking she had a miscarriage ... which she goes along with as well. The episode btw gives the actress a chance to show her chops.  She also was good a few years back in Grounded for Life.

** A few of the final episodes are a bit weak though they have nice touches, like one when Timmy's parents come to visit, the show ending with the whole cast involved in a typical Bollywood musical number, in traditional garb.  The finale is overall nice, but has a stupid bit that is more so because it ignores that Timmy already is a citizen. It was the subject of an earlier episode.

Colbert has an anti-marijuana voice on

Guess diversity is good, but the guy's views are pretty misguided.

Tuesday, February 11, 2014

Two Things

The abortion rate is down so you might think (negatively or not) that anti-abortion laws factored in. The data seems to suggest otherwise including the pregnancy rate going down too.  Felon voting disenfranchisement has long been a concern of mine, though it has gone down in the last decade. Kudos to Holder's recent remarks on the subject.

Holder's SSM Announcement and Related Issues

I briefly mentioned it, but SCOTUSBlog now has a link to the text of the attorney general’s new Justice Department policy directive on the recognition of same-sex marriages. [See here for an analysis suggesting how far reaching though arguably -- I'm somewhat dubious as noted in a comment -- not far enough!] Some of this is just a basic following of the Windsor ruling though even there litigants have been known to not overly enthusiastically followed such directives. 

Here, however, the Administration led the way.  The memorandum noted, e.g., that the administration on its own (before Windsor) put in place a policy of not using sexual orientation as grounds for peremptory challenges pursuant to its judgement that sexual orientation classifications warrant heightened scrutiny.  J.E.B. v. Alabama (gender) held that classifications warranting rational basis review are not subject to the stricter test applied to race/ethnicity.  The 9th Cir. recently determined heightened scrutiny is warranted in this context though the case is still pending (en banc review would not be surprising). 

A word on this matter.  There are a small bunch of Supreme Court cases by this point involving sexual orientation, including allowance to block gays from parades and associations or require an "all comers" rule that includes them as applied to official college associations.  Still, the issue of heightened scrutiny has been somewhat creatively avoided.  Romer and Windsor both in effect noted the laws in question were so blatantly discriminatory (the difference as compared to normal practice was a red flag in both cases) that rational basis was not met. And, in the latter case it is specifically noted careful scrutiny is warranted when that occurs.*

Lawrence v. Texas held that even rational basis review doesn't warrant denying intimate association liberties to them.  The case noted it did not apply to various things, including marriage, but since marriage is itself a liberty that is part of the class covered, the official sanction required to me does not seem to warrant a special rule. And, some federal courts (as did Massachusetts, leading them all) have begun to agree.  Also, that ruling concerned matters like privacy that past cases held to be fundamental rights.  This led various people to determine that some sort of heightened review was warranted, at least intermediate scrutiny.

The ruling rested on substantive due process though it had a section that discussed how equality interlocked with that in various ways:
Such is clearly apparent in Windsor, which uses the Due Process Clause (the federal government involved, the Equal Protection Clause doesn't do it, so the equal protection component of due process was applied).  As noted in the footnote, this was also noted in CLS v. Martinez:
The 9th Cir. in the case cited used Windsor as the basic grounds to hold that sexual orientation warranted heightened scrutiny, but that is a bit dubious -- the ruling used rational basis plus because the law was blatantly discriminatory (a paraphrase, but to me a reasonable one). Are peremptory challenges applied to gays such a law or to cite O'Connor's rule, "a desire to harm" a group?  Except for a race, ethnicity and gender, both sides are generally allowed such challenges for a range of personal characteristics (religion is an interesting case -- at times, this is treated as ethnicity, at least Jews and Muslims were in past cases).  Marriage is a fundamental right, but I take being married can be grounds for a challenge. Personal characteristics like mental illness or retardation also can be grounds for challenge. J.E.B. v. Alabama says as much.

The Administration and others have argued that sexual orientation warrants heightened scrutiny. I firmly agree.  Various cases have been easy. Rational basis, perhaps with a bit of teeth, was enough. Peremptory challenges to me might be a good case to move the law in this area. Sexual orientation fits the rules for heightened scrutiny.  The 9th Cir. is right that the language in various decisions sends such a message even though the rulings rely on somewhat narrower grounds. And, given action here is so closely tied to orientation, heightened scrutiny in one area (as the 9th Cir. did for "don't ask, don't tell" on substantive liberty grounds) should apply to the other. Challenges by orientation is likely to be based on various protection actions (if not in every case). 

Until then, the Administration works with what is available. For years, it has worked within the rules to give benefits to same sex couples, such as hospital visitation rules and so forth.  These are not trivial matters -- they are basic everyday things that are quite important to those involved. Now, it can work with marriage rights.  As I noted the last time, these repeatedly involve things that cannot simply be handled by private agreement. The "solution" to take the government out of the marriage business won't solve everything, since the new rules still would have to deal with allotment of government benefits. Some don't want them applied to same sex couples, even under "civil unions" or whatever. Some examples include bankruptcy, prisons, health benefits, survivor benefits, spousal privilege and protections from harm to spouses pursuant criminal law.

The Administration has decided that these rules don't apply to marriage-like unions like civil unions or domestic partnerships. This was a subject to various posts at Volokh Conspiracy.  I think this a reasonable move because these unions are not quite marriage, even if they technically apply the same government privileges and immunities (which they don't in all cases).  This makes them unconstitutional alternatives to marriage and for similar reasons treating them like it under current federal law (though we can change the statutory law) is questionable.

They have determined what matters is "where the marriage is celebrated." IOW, if a same sex couple gets married in N.Y. but moves to a state that itself does not recognize marriage, in effect, their federal marriage rights are vested and retained. A conservative was on the t.v. yesterday complaining at this, citing the federalism language in Windsor, though the ruling is based on equal protection principles. And, regardless, the state is still able to deny marriage rights under a strict reading of its tenets (its spirit plus other cases ... something else), since for the time being, giving that N.Y. couple federal rights when they move to Alabama allows Alabama still to deny them state rights.  NY doesn't allow the death penalty, but federal crimes committed here can and have been subject to federal capital punishment rules.  A two tier approach is possible.

The conservative was correct to note the soft power of administrative regulations being applied here. This underlines if matters who holds executive power, including in the middle tier of the Jackson Youngstown grouping (executive has discretion, legislature does not clearly set rules).  It also shows how court rulings can push but other actors have an important role in determining how far. (This factors into the "living constitution" book by David Strauss as well.)  The courts have a special power to say what the law is, but they aren't the only one. As Justice Kennedy noted in a somewhat different context:
I will end with a probably largely off topic tidbit that is weakly connected since I think constitutional (and other legal) principles also often should in some fashion honored by the general public (comment).  Rule by "we the people" warrants some degree of that.  This also might touch a bit upon something referenced yesterday about personal faith and belief in what is behind the law, not merely following it in some fashion when you need to do so.  Eh -- suffice to say, I know someone who is breaking the law for a tax break while benefiting specifically from the community whose taxes are being avoid.  I won't say more, but this upset me more than a few other people I discussed it with.  Not being high and mighty here, and the person is not some sort of moral reprobate for doing it, but it's a problem.


* There continues to be to me tiresome complaints that Kennedy's reasoning is so hard to explain, other than flowery language (do these critics say the same thing when "state dignity" is referenced or when Scalia doesn't tell us what level of scrutiny is warranted in Heller? from experience, the answer is continuously, "no"), but the basic "rational basis plus" principle has been apparent for years.

Breyer cited it during the Windsor oral argument though Clement (this not being one of the times he is concerned about federal power) was annoyed at another level of review.  Justice O'Connor, voicing something that clearly has five votes at this point (in CLS v. Martinez, the majority cited another part of her concurrence), noted separately in Lawrence:
What does "more searching" mean?  Yes (he says a bit tiredly) that is somewhat vague. This makes it novel as to constitutional tests, how? What are "reasonable" searches? What is an "exceedingly persuasive justification" (the rule as applied to sex/gender)? Since even race classifications are allowed in a few cases (e.g., affirmative action), what are the contours there?  What is "actual" malice? One can go on. Somehow, we manage, but here, it's a big problem? Why exactly? 

Monday, February 10, 2014

The Fosters

Liked it.  The snow was a bit corny (fit into a plot point) though it did something a bit notable -- it is a bit hard to get a sense of time on this show, partially since I don't recall them celebrating any holidays yet.  Snow suggests winter ... and the dad appeared to be watching football when he died. Glad B/C might have moved on. Annoying at this point.

A New New Testament Update

I received A New New Testament for Christmas and have a habit now of reading a book or so every Sunday, having read the general explanatory material (around 100 pages). The editor provides a brief commentary before each book, which at times tends to be somewhat weak.

As noted, there are generally no footnotes, the few pointing out their value at times -- e.g., "apostle" is noted to be translated as "ambassador" or generally "one who is sent" or messenger (so "ambassador to Christ" would be appropriate because here the messenger is particularly important).  Paul insists that he deserves this title though a common understanding is that there were only twelve apostles.  An understanding of what the word means helps to show its usage. "Church" is another word whose origins in the original Greek adds something to usage.  Sometimes the nuances are really lost -- the particular word used for God in the Old ("Old") Testament is a case in point -- the modern reader will miss that "Yahweh" or "El" is not the same thing.  Various words used for "wisdom" also -- one of the few footnotes notes this, particularly because wisdom often was seen in feminine terms ("Sophia"). 

[Understanding of the times is also very useful. See, e.g., this discussion of the norms as to dress etc, which helps explains Paul's instruction that women cover their head in church.  Unlike the "Paul" command for women not to speak in church, this is much more clearly something he wrote.]

The version here also tries to universalize the translations, changing pronouns for instance, when it is appropriate.  One useful website provides a mass of translations of the texts (the same applies another place where there are more than one translation of non-canon works, such as the Gospel of Thomas), and the different nuances of the language is at times remarkable.  This is not limited to this area -- translators of Homer, e.g., provide a range of possibilities.  Take Galatians 6:
My friends, if someone is caught in any kind of wrongdoing, those of you who are spiritual should set him right; but you must do it in a gentle way. And keep an eye on yourselves, so that you will not be tempted, too. Help carry one another's burdens, and in this way you will obey[a] the law of Christ. If you think you are something when you really are nothing, you are only deceiving yourself. You should each judge your own conduct. If it is good, then you can be proud of what you yourself have done, without having to compare it with what someone else has done. For each of you have to carry your own load.
This is the "Good News" translation, which sounds like the Bible that we were given in high school.  But, there are various others, though the basic message of this worthwhile text basically holds. The NNT version tosses in some feminine pronouns ("her" for the more generic terms used).  Some say "works" for "conduct" (a big debate is the importance of "faith" vs. "works").  The King James version opens thusly:
It also says "fulfill" instead of "obey" the law of Christ. I don't know how much different that is, though "a man" clearly furthers a sexist mind-set, but the flavor of the language does matter.  The value of good literature is not just its message, but how it goes about promoting that message. Such would apply here, surely. I noted how a basic thing like a good font helps reading the book. Imagine back when the text had no verse numbers to space things out.  Or, even, ancient texts that provided what might appear like one long run on sentence with minimal marks for clarity, basic things like quotation marks or even (earlier on) vowels not in place. Imagine trying to read that.  Blah.

The reading is informative. Martha Nussbaum -- noted here since she wrote one of the books in the series referenced last time -- once noted the value of reading certain philosophical works to get a fuller understanding of sexual orientation issues.  I admit to have read little Greek philosophy though the parable of the cave intrigued me years back when I first read it and probably should have read some more in that department. Reading religious works also is worthwhile. Just what do these people some big segment of this country believe to be scripture say? 

Galatians is one of the highlights -- one summary noted it is the epistle that others are compared to determine if Paul truly wrote them, including as a basic summary of Paul's early career and beliefs as compared to the more sanitized Acts version. For instance, a reference is made to "the present evil age" -- apocalyptic concerns a major influence on early Christians.  The letter also summarizes Paul's belief that faith in Jesus Christ is central, not following "the Law" (Torah), particularly circumcision.  He does some scriptural analysis to back this up, which seems more for the benefit of some of his Jewish critics than for the non-Jewish converts he is explicitly addressing.  The "faith" v. "works" debate is a major Christian dispute, one that comes up again in James.*

Personally, along with many, this material works better if taken with a grain of salt as well as a good degree of flexibility. This includes uses the material metaphorically, which Paul himself does some in this very epistle. The Jewish thinker Philo (whose life overlapped Paul) also used that approach in various ways.  The "spirit" or "spiritual" matters to me is a major example of putting this in action.  The general understanding then was that there was an actual "spirit" involved with some physical form -- a force of God or spark within (see various gnostic writings). It also, fascinatingly enough, was used by non-Christian writers of the time -- see, e.g., how Seneca uses "holy spirit" and a form of the "divine spark" within us idea of Gnostics here.  It again is useful to understand Christianity didn't arise in a vacuum.  But, it can be seen metaphorically, like we use "spirit" in various ways now -- "spirit of '76" etc. 

I have read a few books in the volume, including from the non-canonical pile (e.g., The Thunder, Perfect Mind), and will continue.


* "Faith" as well as "belief" is one of those basic things that  to me becomes more confusing upon contemplation. What exactly is this "faith" particularly?  The word "faith" in part translates as "trust," which in practice is not just based on what you see (e.g., the doubting Thomas story though there the other apostles had some ground to believe he rose from the dead based on various facts) ... so we have a "leap of faith" concept here.  This turns off some people -- religion is seen as blind faith, not reason.  OTOH, as seen by reference to Seneca et. al., philosophers also used language of "God" and "holy spirit" mixing in appeals to reason and "natural law" arising from it.

Paul here suggests that religion often is a matter of rules, doctrine and practices. I think a basic point here is a certain emotional connection to God (goodness, rightful conduct), not just following rules is important. Many accounts suggest conversion (as was Paul's apparently) is just that sort of thing. A certain feeling comes over you.  Why is stealing wrong?  Because it is "the law"? No, because it hurts people. Why does that matter?  If people merely cite the law, it sounds a bit cruel even.  People want you to believe that certain things are wrong. 

There is more to it than that, especially for Paul, since "the law" here is Jewish law, and Paul's mission was preaching to the Gentiles.  And, the New Testament as a whole is not just about faith, but also rules of rightful conduct -- even Paul covers that ground, including in letters clearly his.  Still, faith is very important in these books, and repeatedly as part of a personal emotional transformation of one's self.  Faith or "belief" can be in an ideology based on reason, but that emotional component is key.

Living Constitutionalism

This small volume is part of a series on constitutional topics.  Basically, agree with its "common law" constitutionalism approach, but think others (e.g., Karlan, Breyer, etc.) covered the ground somewhat better. It at times left out important things (e.g., judges are chosen by democratically elected officials) or oversimplified. Decent but mixed review.

Sunday, February 09, 2014

Room 514

A confrontation between a young, beautiful and determined [Israeli] female military investigator and an outstanding commander, accused of overstepping his authority.
An overall good "Film Movement" find at the library.

New rights for same-sex married couples

“In every courthouse, in every proceeding, and in every place where a member of the Department of Justice stands on behalf of the United States,” Holder vowed, “they will strive to ensure that same-sex marriages receive the same privileges, protections, and rights as opposite-sex marriages under federal law.” He also stressed that this will be true, in some situations, for such couples who live in states where their marriages are not officially accepted, so long as federal law is at issue.
Thanks Obama. These things cannot all be handled privately. Government license matter.

Rev. Joe -- If God Didn't Want Loopholes ...


-- Romans 12:19
Per a recent comment on the death penalty, there is a debate on the justice of the death penalty among the leading religions (originalism is selectively applied there) in this country. But, it is telling how Jewish/Islamic sources that interpret verses that seem to allow it often tend to make it about as hard (if not harder) as current case law in this country.

Ghost Ship

Takes a bit of time to get into a good groove and boggles down a bit late dealing with certain theories, but this account (with a reasonable theory added) of the mysterious disappearance of the Mary Celeste's crew in the 1870s was overall an enjoyable read.

Saturday, February 08, 2014

Tinker tinker

As reported in this local article, "unresolved concerns about the drugs used to execute Dennis McGuire last month prompted Gov. John Kasich yesterday to postpone the scheduled March 19 lethal injection of Gregory Lott."
The blog (see links there) has reported various issues involving the death penalty, including possible problems with drug protocols, the possibility of "volunteers"* and gender issues.  The author is wary about the death penalty, but basically deems it appropriate for certain extreme cases -- he to me seems to taunt "abolitionists" from time to time on how to explain why it is not warranted in such cases.   Sentencing Law and Policy Blog is one of my standard sites to check out the status of criminal law issues and has been useful of late to check on the status of this issue. 
A few years before Justice Blackmun wrote these words, he or his office was nice enough to respond to a letter that I sent to his chambers (I tried Stevens and did not get a reply).  My letter included a comment about my opposition to the death penalty (don't recall the wording ... probably praising him but noting this was one level of disagreement). The reply noted thanked me for writing and noted that people will disagree about certain things.  Well, he eventually decided to go the route of Brennan, Marshall, Powell (after retirement) and Stevens, though each did it somewhat differently.  Blackmun, as a sort of vale, rested on the failure to provide adequate fairness. Stevens** et. al. relied on more substantive grounds.  I think the problem both though perhaps the procedural issue is generally a more appropriate concern for the courts.

Society in general supports the death penalty, but in a fashion, a small subset of murderers (if allowed, an even smaller subset of rapists and perhaps others -- like drug kingpins -- would be covered here too) provide "atonement" or some such term (I admit the word might be too um honorable in context) for the rest.  Take Tennessee -- the blog notes that a big influx of execution dates just came in -- ten.  Since the mid-1970s, six executions occurred.  I looked into the matter. As noted in the comments, there were no (none) executions in the state from 1961-1999.  Ten or so occurred in the 1950s. A larger number, going by the records available, were performed from 1910-1949.

Still, I assume event then, it was but a small subset of murderers.  This is pretty much the norm. The numbers are higher is a few "death belt" states, it is true, but even there, it is a small portion of the murder rate. And, we are talking about only about ten or so states at best here with sizable numbers, especially in let's say our current President's lifetime.  Certain heinous crimes will make you more likely to be executed, but even there, only so much.  Also, it is true that there are more people on death row.  The theme, however, holds -- over our history, repeatedly, people sentenced to die in various ways were not executed.  It would require a serious uptick, a lot more than ten at once, to even clear a substantial percentage of those on death row.

The ability of a Republican governor like Kasich to delay with no apparent major complication as to public opinion underlines that the public does not want such an uptick. There will be from time to time some grumbling, but single digit (even over a span of a decade) executions will not appall the public at large.  This adds to my disdain when some make comments about "the left" or "judges" or "abolitionists" or "defense attorneys" blocking death sentences by any means necessary.  Ha. The people at large (including juries, who in most states have basically complete discretion to choose death when prosecutors give them the choice) have the ultimate responsibility here.  While judges, legislatures, governors and the rest "tinker" with death, they mostly look from the sidelines.

The whole process is somewhat depressing, but as long as it is deemed necessary to execute a few people -- via a system that ultimately is pretty arbitrary and is unconstitutional imho on that ground alone -- it will continue.  There will continue to be problems and enough concerns that there might be problems (the "reasonable doubt" standard highlights this -- you can be pretty sure someone is guilty and still worry that the conviction is sound; executions in effect are put to a higher test) for these sorts of things to continue.  Death will remain different enough that even executing heinous murderers will be seen as something we have to be really careful about.

That, imperfect as it is in practice, is somewhat reassuring. 


* He has written in the past suggesting that the harshness of life on death row or even LWOP from what I gather very well might warrant a right in some cases to end one's life.  An intriguing idea that matches his usual reasonableness, including in the face of certain contributors there.

I find it questionable to give such people that right (to be blunt, there are unofficial ways to go), particularly as a matter of line drawing. I feel (a popular link relatively speaking) this way about "death penalty is easier" arguments generally.  That is, it very well might be easier to submit to execution than stay in prison for decades, perhaps in near solitary confinement. But, many non-capital criminals have very long sentences. Should it be "easier" for capital inmates? Where is the line?

And, I realize us "abolitionists" are supposed to be a bunch of softies, but honestly, I have little sympathy vis-a-vis some drug offender in for fifteen to twenty or something, about how hard some heinous murderer is finding prison life. They are human beings and deserve some minimum level of care, quite right, but I don't think the death penalty is appropriate to respond to murder ... nor, assisted suicide the solution in this case.\

** Stevens concurred in judgment (in a veiled shot at B/M) because "respect [of] precedents that remain a part of our law." One thing that was off about Stevens' concurrence was his argument that concern for the harshness of procedures of execution clashed with retribution aims (like many, he concluded if there is a sound reason for it as currently applied, that would be the only one really in place) of the death penalty.

On this matter, CJ Roberts was correct -- trying to make execution as painless as reasonably possible does not negate the retribution function -- you still are ending the life after all!  That to me sounds serious enough, if retribution remains a valid purpose in general, including (as noted in Gregg v. Georgia) as a way to satisfy vengeance demands of some segments of society that might wish for more cruel methods. 

Friday, February 07, 2014

Girls United

The Fosters provided five "web episodes" shorts online to continue the story-line at the group home. A bit too "what's your issue" (cutting/HIV+/etc.) but decent. Being Erica did this thing well. Soldier's Girl was on recently. Again, impressive on multiple levels.

Thursday, February 06, 2014

Don't Use Hoffman To Justify the Drug War

Since the sad death of actor Philip Seymour Hoffman is still prominent in the news, bringing with it the predictable wave of hysteria over heroin use and clamors for more restrictions on pain pills, I will use the opportunity to point out the futility of using our criminal laws as a response to heroin addiction, and the origins of heroin. [More..]
Agreed in general. Scope of wrong, not the same as marijuana prohibition but the "drug war" isn't correct simply because hard drugs are involved. RIP.

RIP Ralph Kiner

I only caught him at the end of his career, but Bob Murphy on the radio was great (sounded like he was having a lot of fun in that famous '99 playoff game with the "home run single") and saw the team's "goodbye" when he retired for health reasons. Ralph Kiner hasn't been around much the last two years on broadcasts, so today was no big surprise. Saw bit more of him and can see signs of why he is so beloved as an institution.

The Color of Friendship

At times, Disney re-airs old t.v. films, like this one last night from 2000 about a foreign exchange student (white) coming to stay with (muy surprise to all) a black congressman's family in 1977. Apparently basically true, including neither side not knowing (due diligence is your friend!) the race beforehand. The white girl later disappeared, perhaps tragically.

"Distaff side death penalty developments in Texas and Arizona"

Interesting discussion arising in part from (see comment) the eventual execution of a reprehensible (don't deny that as an "abolitionist") sounding woman -- unlike another case, don't think she had a "find Jesus" moment either. A fraction of violent crimes are committed by women, of course, so any biases (surely there on some level) apply to a smaller subset.

Lake Street Dive

They were on Colbert last night -- good stuff.

Wednesday, February 05, 2014

Pussy Riot Members Take Tour to New York

Ms. Power’s meeting with them also elicited some sarcasm from Vitaly I. Churkin, the Russian ambassador. “Oh, she has not joined the band, has she?” he told reporters during a briefing at the Russian Mission. “I would expect her to invite them to perform at the National Cathedral in Washington.”
Those Russians with their wit.

Twain Not Meeting Edition

I can understand Gov. "I knew he was a bully back the first time he ran" Christie saying he didn't really know someone involved in the scandal just because they went to high school together. I went to school with Soon Yi Previn (of Woody Allen fame) and never met her. Good interview with "Pussy Riot" duo on Colbert last night.

Hobby Lobby and Corporations

I think support of exemptions of the contraceptive mandate can burden religious liberty, especially as applied to for profit corporations. Sounds like on the corporate end, a similar mind-set is present as to the interests of business. Hopefully, this will help.

Tuesday, February 04, 2014

Diminishing TV Viewing

Ziva leaving NCIS made that show dead to me and Downton Abbey's tedium has led me to stop watching that (I switched it on during a break on Sunday ... oh is Edith pregnant now?). Now even repeats -- no more Rules of Engagement at midnight on WGN?! Don't like 30 Rock, never got into Parks and Recreation. The lead actress is kewl and all.

And Also ...

The Fosters is on 9 (EST) and repeated at 10 ... and then The 700 Club is on. That old guy has some funny things to say if you listen to him answering letters (talking about porn, he reminded the nude human body itself isn't sinful), but talk about strange bedfellows. Also, seems Stef's dad is dead. It's too bad, since he was an interesting character who had old fashioned views but was struggling with them. TV struggles with such complexity.

Monday, February 03, 2014

The Fosters

Like various others, really tired of "Callie and Brandon," but as a whole, like tonight's episode. The series feels back on track after a couple episodes a bit off & too focused on Callie. Some good stuff here, including Stef's dad trying to supply a peace offering but Stef having problems with it given past issues. Sorta don't like how it ended though. Rosie O'Donnell also is doing great in her guest role. Nice mix of subplots.

Two things

Snowing today NYC; warm yesterday. Weather is kooky like that over here. Good football timing but it's football - fans should handle some cold. Checking the graphic novels, "Those Left Behind" is in effect the next episode of Firefly. Nice that, ditto the intro by the lead actor. Story okay. Didn't really like the later volume providing Shepherd Book's back-story.

"How TV and Movies Lie About Abortion"

Over a million abortions occur annually, but it is rarely addressed on t.v. or film. And, even then, it is skewered some. I appreciate coverage of the latter point but it being shown at all is still notable these days. Homosexuality underlines the importance of such depictions.


Manning was upset when a reporter wondered if he or the team was embarrassed, but they should have been. Seattle is great, but Denver is pretty good too, and shouldn't have been so manhandled. Its defense actually kept it a game longer than it might have been. Four scores, only 15 points. It too lost steam eventually. After a great game vs. the Pats, they seem not to come to play. Seattle, after some nail-biters, did. And, didn't hear a single "Omaha."

Sunday, February 02, 2014


There were 100-1 odds that the opening score would be a safety. Put aside it being on the first play. The result was about as likely. The kittens in the Hallmark Kitten Bowl might have done better than the Broncos. Seattle blanked the NYG at this field earlier this season. Denver managed to score eight, but really did worse. Commercials mostly eh.