September 30, 2004

CBS Brings You Forged Debates!

So . . . will I get linked by Instapundit if I write something like:

    When selecting your broadcast station for tonight's debates, beware that CBS has planned to graft in a cybergenic Bush-look-alike programmed with a vocabulary of six to answer questions in lieu of the real one. Har har, CBS is, like, sooo unreliable.


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Only One Little Indian

Eugene Volokh takes issue with the notion that using "Indian" to signify the native peoples of the American continents is a "goof." The Slate Explainer column

gives no survey evidence that American Indians really perceive this as a "goof." It simply says that they "often dislike this simplest of monikers," with no indication of how "often" this is. Is it that 10% of Indians dislike it? That 30% dislike it and 70% are just fine with it? That 30% dislike it, 20% like it, and the rest have no opinion?
I don't think that the only problem here is how Native Americans feel about the use of the term "Indian"; the concerns of South Asians should be relevant as well.

People are genuinely confused by the double usage of "Indian" to identify two very distinct groups of people. When I've said "Indian" in response to queries about my ethnicity, some questioners have replied, "Oh, what tribe?" Or better yet, "My grandfather was half Cherokee." No, not that kind of Indian.

Stephen Colbert clarifies with "Sitting Bull or Gandhi?" but this is dubious outside the Daily Show context. Language ought to be used in ways that maximize listeners' understanding, and multiple meanings for a single word cloud that understanding. As I don't think there's much dispute that the people whose near ancestry actually lies in India have the best claim to "Indian," let the Native Americans go find their own word.

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Don't Be the Last on Your Block

To read about Justice Scalia's Tuesday night visit to Harvard University (The Crimson; the official story). No video available as of yet.

The money quote, at least according to Atrios:

I even take the position that sexual orgies eliminate social tensions and ought to be encouraged.
UPDATE: Alas, the Crimson misquoted Scalia. His actual statement was, "I even accept for the sake of argument that sexual orgies eliminate social tensions and ought to be encouraged." Apparently the misquote was partly due to the Crimson reporter's not having a tape recorder, remembering the Mississippi speech at which recorders were forcibly erased.
"There had been a miscommunication on whether we could have a recorder," Crimson Managing Editor Elisabeth S. Theodore said. (Scalia's policy allows print reporters to use tape recorders to check accuracy.)

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Today / September 30

Today in History (1962) - C�sar Ch�vez founds the United Farm Workers, and James Meredith integrates the University of Mississippi.

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September 28, 2004

If 14+15, Why Not 14+19?

My private theory on why nearly every person admitted to Columbia Law School in August was female is that the admissions office belatedly realized the gender imbalance and tried to correct it at the last minute with the waiting list admits. So, for what may be the first time in my life, I am an affirmative action beneficiary, and I'm gratified to see my support for the policy finally pay off.

Even for those who think that race-based affirmative action is unconstitutional, this isn't a problem. First, as a private university Columbia is not a state actor; second, and more importantly, the 14th Amendment is not interpreted to require gender equality to the degree that it is perceived to require racial equality. Of course, the 14th says nothing about either race or gender, but the popular reading is to sort of mush the 15th Amendment into the 14th, so that if you squint hard enough, it becomes "No State shall [... blah blah... ] equal protection of the laws on account of race, color, or previous condition of servitude."

What I've been wondering about for some time is why we don't use a similar reading that would squash the 19th Amendment into the 14th as well. After all, the 15th and 19th have the exact same text, except where the former says, "on account of race, color, or previous condition of servitude," the latter says, "on account of sex." Using the same strict scrutiny for gender that we use for race could create upsets everywhere, from forcing women into Selective Service registration to making the legal recognition of same-sex unions constitutionally necessary.

Who needs the Equal Rights Amendment when we have the 14th plus the 19th?

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September 27, 2004

Today / September 28

Today in Terrorist History (1973) - ITT Building in New York City bombed to protest ITT's involvement in the September 11 Coup in Chile. Twenty-seven years later, the Al Aqsa Intifada begins after visit of Ariel Sharon to the Al Aqsa mosque.

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Belated Congratulations

To Melissa Head, who volunteered to serve with the U.S. Army Corps on Engineers in Iraq, for passing her bar exam. Being in Baghdad, Head took her professional oath and was sworn in to the Iowa Bar Association Tuesday via video-teleconference.

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September 26, 2004

Torts and Socialism

In the introduction to Tort Stories, editors Rabin and Sugarman use the Palsgraf case, a thrice told tale, to illustrate some of the themes that run through their own volume. One of these is the socioeconomic context of the stories:

Noonan makes much of the fact that Mrs. Palsgraf was poor and that not only was the defendant railroad quite wealthy, but also the judges who then sat on the Court of Appeals themselves were from the upper middle class. Surely it is not the primary role of tort law to transfer money from the rich to the poor.
Because suits can be brought by the rich against the poor, certainly a more equitable distribution of wealth is not the theoretical purpose of tort law, even if it may be the practical tendency. But this made me wonder whether the perception and reality of economic inequality in the United States has led to our being a more litigation-prone culture than our European counterparts. Mrs. Palsgraf, making about $500 a year and unable to pay her $70 doctor's bill, may not have brought a suit against Long Island Railroad if she had not seen it as a way to solve her economic problems. In a modern EU country, however, the social safety net would have covered her health care and probably even supplemented her income, particularly after the disability caused by the accident prevented her from working. Although the majority of tort reform advocates probably would consider it a cure worse than the disease, greater governmental assistance might well reduce the American inclination to litigation when disaster strikes.

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September 25, 2004

Today / September 25

Today in History (1789) - The Bill of Rights passes the United States Congress; (1957) - Central High School in Little Rock, Arkansas is integrated through the use of U.S. Army troops; (1981) - Sandra Day O'Connor was the 102nd Justice sworn in as an Associate Justice of the Supreme Court of the United States, the first woman to hold the office.

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September 23, 2004

Legally Gossipy

Those inclined to take an "underneath their robes" view of the Supreme Court may enjoy not only the Vanity Fair article linked by Will Baude, but also these photos by David Hume Kennerly. I challenge alleged Ruth Bader Ginsburg admirer Wings & Vodka to purchase one of these depictions of his beloved.

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Today / September 23

Today in SCOTUS History (1971) - Justice John M. Harlan retires after 16 years on the Court supporting racial equality, defending federalism and opposing the incorporation of the Bill of Rights into the Fourteenth Amendment. His last opinion was a dissent in the Pentagon Papers case.

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September 22, 2004

Damn You Socrates

Reported by an acquaintance who is in a different Civil Procedure class:

Professor: Is [blah] what the Court of Appeals is saying?
Student: I think so, yeah.
Prof: (silence)
Prof: Or?
Student: Or... not?
Prof: (silence)
Student: Definitely not.
Prof: Good. The next question is, is it about the facts or the law?
Student: Well... the law.
Prof: (silence)
Prof: Or?
Student: I meant the facts.
Prof: In which case you would be right. Moving on --

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September 21, 2004

Today / September 21

International Day of Peace. Also the 67th anniversary of The Hobbit's publication.

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Dusting Off the Slate

From the stone age of online writing (i.e. March 2000), a question by Randy Cohen:

"This is something any member of the public could have felt while handling, pushing, grabbing ... ," said Jeffrey Lamken, a U.S. assistant solicitor general, to a skeptical Supreme Court Tuesday.
"At least in my experience, people don't take it out and feel it," Justice Ginsburg demurred.
"It does seem to me that another passenger does not have the right to start squeezing my ... ," argued Justice Kennedy.

In this case, Bond v. United States, who squeezed what?
(Note: For responses to No. 392, the penis-free zone is invoked.)

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September 20, 2004

Come Together (in the Hoosierdome)

With the comments section of this post going slightly off-topic -- from Scalia's grudging Johnson vote for the First Amendment protection of flag burning, to his enthusiastic dissent from Lawrence and heckling concurrence in Barnes -- I thought I should corral the arguments on the latter topic together.

If I understand him correctly, Will Baude says that with Lawrence's having eliminated public morality as a rationale for banning certain behaviors, no basis remains for the government's banning nude dancing in clubs or mass flashing in sports arenas, provided that all present consent to the nudity. (Irrelevantly, I'm fascinated by the suggestion that Lawrence could overturn laws against suicide, which I had not previously considered to be about public morality so much as about incentivizing people who really want to kill themselves to do it properly and not muck about with these stomach-pumping cries for help.)

I didn't realize that strip clubs and the Hoosierdom, places of "exhibition or entertainment," could be considered private places. Wouldn't both be governed by federal anti-discrimination law as "public accommodations," in a way that one's bedroom is not? That is, I can prohibit entry to my own home to any person for any reason, but a strip club and the Hoosierdome cannot use race and gender to keep people out.

Assuming that I'm correct about the legal nuances of private versus public, Lawrence would protect genital waving in one's home or any other place that cannot be considered a public accommodation. This strikes me as a pretty good distinction, since one would like to be able to discriminate regarding the genitals one sees in one's home without fear of violating the Civil Rights Act of 1964, whereas in entering a strip joint or sports arena, one must take one's chances.

Lawrence eliminated the government's ability to interfere in one's entirely private actions solely in the name of public morality. There's no reason why anyone would even know what two people are doing in their own home, assuming that they don't make enough noise to wake the neighbors. Indeed, this was part of the concern over the police power to bust into people's houses on suspicions that their relationship is going far too well not to include illegal activities. As Justice Kennedy said in the majority opinion in Lawrence, "Liberty protects the person from unwarranted government intrusions into a dwelling or other private places. In our tradition the State is not omnipresent in the home."

If the state's interest in preventing racial and gender discrimination is insufficient to overcome the a priori presumption in favor of the home's inviolability, how much less is the government's interest in maintaining public morality able to surmount it?

(And isn't that a typically liberal hierarchy of governmental priorities?)

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Today / September 20

Today in History (1850) - The United States Congress abolished the slave trade in the District of Columbia as part of the legislative package called the Compromise of 1850.

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September 19, 2004

Today / September 19

Talk Like a Pirate Day, also the live simulcast and rally of "Battle for Marriage III," popularly considered to be a poor rip-off of Parts I and II.

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September 18, 2004

I Heart Scalia

Apropos some recent discussion both online and off about Justice Scalia's jurisprudence, I wanted to review my personal favorite: his vote with the majority in the 5-4 Texas v. Johnson decision. Scalia did not voice a concurrence at the time, though I think his sentiments about the Constitutional necessity of reversing a flag-burner's conviction were similar to Kennedy's. Since then, Scalia has said, "I would have been delighted to throw Mr. Johnson in jail. Unfortunately, as I understand the First Amendment, I couldn't do it."

Texas v. Johnson is a case that I think demonstrates Scalia's textualist tendencies more than any originalist ones. There's little basis for assuming that the First Amendment was intended to protect burning the American flag, but because such an action is clearly expressive conduct, intended to make a political statement, it must not be restricted. It makes for an interesting contrast with Virginia v. Black, wherein Scalia voted with the majority to maintain a state ban on cross-burning.

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September 17, 2004

Today / September 18

Today in History (1850) - Congress passes the Fugitive Slave Act. Like the Constitution, it never uses the word "slave" but refers to "fugitives from labor."

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September 16, 2004

Istanbul, Not Constantinople

As I've been discussing American adultery bans, I felt obliged to note that the Islamic-majority nation of Turkey has rejected criminalizing adultery after public outcry and EU disapproval. This strikes me as the appropriate mechanism for eliminating such legislation; the political mechanisms of citizen protest and compatibility with an entity one wishes to join are better than attempts to find such laws unconstitutional.

In distinguishing the context of the proposed adultery law from those currently standing in the U.S., keep in mind that the greatest lobbying effort against it came from Turkish women. Until only eight years ago, Turkey punished a man for adultery if he kept a mistress, i.e. maintained a residence for his non-spousal sex partner. Women, on the other hand, were guilty of adultery just for having sexual relations with men other than their husband. The highest court found that law unconstitutional for its discrimination against women; to my knowledge, Turkish jurisprudence has no "right to privacy" that would enable defendants to challenge an equitable adultery prohibition at all.

(Post title via Waldo Jaquith)

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September 15, 2004

Reaching Roe Again

As you may have heard, the Fifth Circuit rejected a request to reverse Roe v. Wade on straightforward justiciability grounds (i.e., the "live controversy" expired decades ago). Matto Ichiban, however, favorably quotes the following passage from the concurring opinion:

    [T]he problem inherent in the Court�s decision to constitutionalize abortion policy is that, unless it creates another exception to the mootness doctrine, the Court will never be able to examine its factual assumptions on a record made in court. Legislatures will not pass laws that challenge the trimester ruling adopted in Roe (and retooled as the "undue burden" test in Casey. No "live" controversy will arise concerning this framework. Consequently, I cannot conceive of any judicial forum in which McCorvey�s evidence could be aired.

Matto seems to find this concern persuasive:

    The only way for a court to revisit Roe in its entirety would be for a state to outlaw abortion through its legislature, wait for someone to challenge the law on due process grounds, and then rule accordingly.

    But in that case, also interestingly, abortion opponents would not be able to litigate the case [that] revisits the issues they hope to overturn (except indirectly through the government). This puts the state in the position of being a social activist: It must flout the law in order to bring about a substantive change at the Supreme Court level. Off the top of my head, I can't think of any other similar ruling completely shielded from subsequent Supreme Court review like this.

For starters, it would seem that any law declared unconstitutional would create the same problem. A rehearing would presumably require relegislating the unconstitutional law. That's what happens when laws are declared unconstitutional. I see no problem in the ordinary citizen's inability to relitigate a state government's interests in law-making power. Ordinary citizens can't challenge Lawrence, for instance, because the unconstitutionality of anti-sodomy laws is a limit directly imposed on the state, not the citizens. It thus makes perfect sense that the state must be the interested party in "directly" relitigating constitutional issues, just like the state is the relevant interested party in directly passing laws that citizens support.

But the issues in Roe as in Lawrence or any similar cases would probably have little trouble finding their way to a Supreme Court willing to reconsider them. If a state is unwilling to pass laws identical to the unconstitutional ones, it need only pass laws pushing the limits of the holdings in question. A state law extending permissible waiting periods for abortion, for instance, would undoubtedly give the court a chance to consider, and overrule, Roe if it wanted. The concurring opinion underestimates courts' willingness to address issues that are not squarely presented.

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Today / September 16

Today in History (1940) - United States government first adopts peacetime conscription under the Selective Training and Service Act.

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Today / September 15

Today in History (1857) - Chief Justice and U.S. President William Howard Taft is born. In Japan, September 15 is Respect for the Aged Day.

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A Question

If I could have dinner with anyone living, Tom Stoppard would surely be up there, with John Kerry a close twelfth, but if I did have dinner with Kerry, and if I could have one question answered by him honestly, I'd ask, "Senator Kerry, why is your campaign a piece of shit?" (Scroll a bit.)

Link from Professor Leiter, who supposes Kerry just doesn't really want to be president.

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September 14, 2004

Are There AKs 1-46?

Although I didn't mourn the end of the Assault Weapons Ban -- the legislation in question seemed overly focused on superficial features of the firearms, instead of on what those guns could do -- this USA Today article did raise a brow:

The expiration of the 10-year-old ban on 19 types of assault weapons Monday drove up business at some gun stores and set off sparks in the political world. [...]
Castle said gun manufacturers have offered discounts and pre-orders for months. "The gunmakers are salivating," he said. "I hate to think of what can happen now." [...]
Dave Anver, president and CEO of Dave's Guns in Denver, said he has already seen "a huge spike," with 15 to 20 walk-ins inquiring about buying new rifles by midday Monday and numerous inquiries via phone and e-mail. Bernie Esguerra, owner of Bernie's Sports Center in Lilburn, Ga., said customers have been placing orders for the weapons for months. "It's like they were keeping the food away from you and you got hungry. It's human nature," he said.
Last night on the Daily Show, noting that the ban would expire in an hour, Jon Stewart remarked, "I have AKs 1 through 46. Now I can finally complete my collection!"

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September 13, 2004

What Bush May Do to the Court

Apropos some speculation about Bush's impact on the Supreme Court, should he be reelected, it's worth noting that Bush has never--to my knowledge--articulated a coherent or satisfying theory of judicial action. Presidents and presidential candidates just don't typically do such things. But Bush has certainly mentioned the courts, almost always in conjunction with "activist judges" and the sanctity of marriage that they destroy; and Bush has certainly made clear his stance on abortion.

Considering that as many as four justices may be on their way out during the next four years, I don't think there's much doubt that Bush's agenda for the Supreme Court will be keenly focused on expanding the power of states to regulate sexuality and abortion. Say goodbye to Roe and probably Lawrence.

Obviously, there are serious scholarly arguments why the Constitution has nothing to say about abortion, gay marriage, or sexual privacy generally. But I'm not holding my breath for another Scalia, who's often admirably principled, unless the champions for the religious right likely to be appointed by Bush are coincidentally principled.

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Today / September 13

Happy [lady's age omitted] birthday to Judith Martin, aka Miss Manners.

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September 10, 2004

Today / September 10

Today in History (1977) - France's last execution is performed by guillotine. Twenty five years later, Switzerland finally joins the United Nations.

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September 9, 2004

Bashman Behindhand

The rare mainstream-media law-related article that I saw before How Appealing linked it: In Nation's Courtrooms, Wounds From 9/11 Persist. It really is worth reading as an overview of how many areas of civil litigation are out there.

This tidal wave of litigation reflects, in yet one more way, just how profoundly Sept. 11 changed the lives of many people in and around New York, who still find themselves bereft, angry, injured or even impoverished. And who turn to the courts, as Americans do, for redress.

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Maybe Litigation Will Make Them Sorry

Despite my sympathy for the family profiled in this article, due to the tragic loss of their young daughter in a drunk driving accident, I cannot condone their decision to "Deliver Message Via Lawsuit," as the headline puts it. While I rarely call "Frivolous!" on cases that make it past the pre-trial motions, this does strike me as a case that ought not to have been brought, even if it is legally valid.

My first Torts session just ended, and I already disagree with the voiced majority opinion of the class that the loss in Hammontree v. Jenner should have been transferred to the epileptic man who caused the accident. Bammer v. Brecht strikes me similarly; the Bammers should not be "made whole" for the loss of their daughter through the monetary penalizing of the Brecht family, whose own child is in prison for a 10-year term on vehicular manslaughter. According to the article, "when the parents of the drunk driver who killed their daughter failed to express remorse, [the Bammers] got an attorney and sued." Both this and the desire to publicize the dangers of drunk driving are not the sort of purpose that lawsuits ought to serve. At least Hammontree sued in part because of the property damage caused, which could be remedied with compensation from the defendant.

In neither case do I see a moral responsibility in the defendant, nor do I see the defendant as having a more powerful position and thus far greater capacity to have prevented the injury than the plaintiffs have. Probably there is no strong legal basis for this feeling, but fortunately my Torts professor wants us to forget everything we know about the subject already and to speak on our raw intuitions of right and wrong, at least for the first few classes.

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September 8, 2004

That Bwessed Awwangement

I repressed the desire to quote the Princess Bride while writing yesterday's post, but a disputatious email has brought it on.

Mawwiage. Mawwiage is what bwings us togethaw today. Mawwiage, that bwessed awwangement, that dweam within a dweam... Then wove, twue wove, will follow you fowever...
I feel better. Now for the email:

I think you're wrong re adultery. There's nothing inherent in adultery that is inconsistent with marriage laws; there's no reason why two people can't be married and sleep around. It's not the norm, obviously, but there's nothing inherent in marriage that prohibits it. Prohibiting adultery prohibits the sexual act, and thus to me seems pretty clearly to fall within Lawrence.
As I noted at the beginning of the earlier post, I agree with Turley on practical grounds; I don't think the state should be prosecuting people for committing adultery. I don't even think that it should be a crime.

But Lawrence did not tear down all prohibitions against sexual acts. Bestiality, incest and many other sexual acts remain illegal, because their illegality rests not in one's choice of action (why should the state privilege vaginal intercourse or mutual masturbation over anal or oral sex?) but in one's choice of partner. The state has a very good reason to prohibit people from having sex with their dogs, brothers and sons, and these reasons are not unconstitutionally discriminatory. They do not distinguish between persons based on their race or gender, but on their relationships.

On the rationale that people who commit adultery are less likely to have lasting marriages -- a hypothesis I have not researched, but that seems plausible -- the state attempts to maintain the health of marriages by prohibiting a behavior likely to undermine the marriage. Of course, there are many other ways to screw up your marriage, and the state does not prohibit spending too much time at work or leaving the toilet seat up. In the pursuit of marital stability, the state clearly makes only a few select limitations on liberty, ones that traditional morality prefers.

Nonetheless, Lawrence's specific reservation on the constitutional protection it grants to sexual acts ("absent [...] abuse of an institution the law protects") makes the adultery prohibition constitutional, if not sensible or effective. There is nothing "inherent" to adoption that prohibits sexual relations with one's adopted child, once she is a consenting adult, except for the fact that this relationship is regulated by the state and the state does not think that sex is compatible with a healthy adoptive relationship, any more than it thinks adultery is compatible with a healthy marriage relationship.

The state may be incorrect in this idea, but the burden of proof seems to be on the adultery and incest advocates. I view the anti-adultery statute rather as Justice Thomas viewed the anti-sodomy statute: "the law before the Court today 'is � uncommonly silly.' If I were a member of the Legislature, I would vote to repeal it."

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Today / September 8

Today in History (1974) - President Gerald Ford pardons former President Richard Nixon for any crimes Nixon may have committed while in office. The Watergate break-in was intended to help Nixon's re-election. Last year, McConnell v. Federal Election Commission was argued.

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September 7, 2004

Meaningful Sodomy, Yes; Adultery, No

In practical terms, I completely agree with Prof. Jonathan Turley's lambasting of adultery prosecutions. These "bawdy courts" are so infrequent and random -- depending entirely on the temperament of local judges, prosecutors and of course the adulterers and spouse involved -- that they do more to create legal commentary than to deter the behavior. Turley's best example of the absurd place of adultery as a "crime" is the commonplace proving and admitting of it in divorce court, without the guilty party's being handcuffed and charged. Speeding also goes unpunished most of the time, but people don't walk into courtrooms and freely declare, "Yes, Your Honor, I usually drive 80 mph."

In legal terms, however, Turley's argument seems much less sound.

Turley takes the case of John R. Bushey Jr., previously discussed at En Banc, and tries to use it to illustrate everything that's wrong with the adultery prohibition. Unfortunately, Bushey's decision to accept community service as punishment, instead of fighting the charges All The Way To The Supreme Court, means that Virginia's statute will go unchallenged for the present.

It should be obvious that such laws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence, but the Court did not actually set these laws aside when it ruled anti-sodomy statutes unconstitutional, even though it stressed that anti-sodomy laws further "no legitimate state interest which can justify its intrusion into the personal and private life of the individual." While the Court did not address anti-fornication or adultery statutes, the dissenting justices specifically noted that the decision placed such laws in jeopardy. Self-described "morality advocates," however, have resisted. Thus, Virginia cannot criminalize the act of sodomy between consenting adults but can often prosecute the same adults for having sex in any form under the adultery law.
Actually, I don't see why this is obvious at all. Turley persistently ignores what differentiates adultery from "betraying boyfriends or girlfriends in unmarried but monogamous relationships": adultery involves marriage, and marriage -- let it be said for the millionth time -- is a legal institution. When people choose to take part in that institution, they must live under the rules that their state chooses to make for it, provided that those rules are not discriminatory.

For example, most states require that prospective spouses undergo blood tests and get a marriage license. Several states and the District of Columbia still do not permit "no fault" divorces, instead requiring people who wish to end their marriages to be separated for a period of time, ranging from six to eighteen months, and to show grounds such as cruelty, adultery, desertion, imprisonment or impotence, before they can be rid of each other.

I see nothing discriminatory in the states' varying rules for beginning and ending marriages; some prioritize ensuring a minimum of forethought before entering into a lifetime commitment; some (well, Nevada) prioritize making marriage as easy as possible. Some have a strong policy against forcing unhappy couples to stay together; some have a strong policy in favor of keeping marriages together, especially when children are involved. As long as people are allowed to marry one another without discrimination on the basis of race, religion, gender or nationality, states may impose requirements based on their legislatures' preferences.

And if one of these legislative preferences is for granting marriage only to couples who are sexually faithful -- well, if you can't take the monogamy heat, don't get into the marital kitchen, any more than you would get married without being ready to assume other responsibilities. Lawrence provides little cover here, considering Justice Kennedy's majority opinion in that case.

This, as a general rule, should counsel against attempts by the State, or a court, to define the meaning of the relationship or to set its boundaries absent injury to a person or abuse of an institution the law protects. It suffices for us to acknowledge that adults may choose to enter upon this relationship in the confines of their homes and their own private lives and still retain their dignity as free persons. When sexuality finds overt expression in intimate conduct with another person, the conduct can be but one element in a personal bond that is more enduring. The liberty protected by the Constitution allows homosexual persons the right to make this choice.
Marriage is an institution that the law protects, and in some views adultery is an abuse of that institution. Moreover, Kennedy sentimentally declares that constitutionally-protected sodomy is part of a Meaningful Relationship, a "personal bond that is more enduring." He refuses to see the constitutional protection he is granting as being for merely sexual acts, despite Turley's wish to read Lawrence as a purely privacy-based decision. "[L]aws governing private, consensual acts are no longer valid after the Supreme Court decision in Lawrence."

While anti-sodomy laws further "no legitimate state interest which can justify its intrusion into the personal and private life of the individual," anti-adultery laws are at least intended to strengthen the marital relationship (even if they do not practically operate to achieve this end, as the haphazard enforcement of such laws makes them pretty much useless). When states recognize marriage as a legal institution, they have a legitimate interest in keeping these relationships intact.

During this morning's online discussion, Turley made a truly absurd claim that there is an equal protection reason to decriminalize adultery.

In most states, fornication is now legal between unmarried persons. The Supreme Court has found that citizens have privacy and equal protection guarantees against anti-sodomy statutes. Yet, married persons are still subject to government intervention and prosecution.
Certainly, and married persons also are "subject to government intervention" in the scores of ways that our laws privilege marriage above other relationships. What does Turley think the whole same-sex marriage debate is about, if not giving everyone access to the special status -- and yes, special responsibilities -- of the marital relationship? Next he'll be saying that adults who adopt a child shouldn't be held to a higher standard than non-parents are. People have an equal right to marriage, but they don't have a right to marriage on whatever terms they want it.

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September 6, 2004

Today / September 6

Labor Day. But in the "working hard for the money" category, in 1995 Cal Ripken Jr. broke Lou Gehrig's record of playing 2131 consecutive baseball games. Though if the word "play" is always used to describe your job, should it be categorized as labor? (Also, if you're said to be "practicing," are you really a professional?)

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September 2, 2004

The Blind Mocking the Blind

Said by my 73-year-old professor, who tells stories about working for a 40 cents an hour minimum wage, about the frozen Supreme Court:

Actually, three of them are dead and are just strapped into their chairs.
Presumably he was not referring to Justice Ruth Bader Ginsburg, considering that her daughter would be teaching in this same room 50 minutes later.


I make no claim to non-partisanship; I just try to avoid indoctrination.

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I had meant to write a post about the Justice Department's latest screw-up, but why bother when BTD Venkat has it all? The one of which I was thinking is described as

In a dramatic reversal, the Justice Department acknowledges its original prosecution of a suspected terror cell in Detroit was filled with a "pattern of mistakes and oversights" that warrant the dismissal of the convictions.
Well, just wait until they start trying the detainees at Git-- oh, yeah...

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To Journal, Or Not to Journal

The class of 2007 is still in quasi-orientation mode, partly because we're taking only one lecture and it's pass/fail, so we're happy to attend any organization's event as long as food or drink will be served. On Tuesday night, the Journal of Gender and Law offered dessert and the opportunity to be on a journal as 1Ls. After someone gave the spiel, we poked at the kosher lime cake and debated the merits and demerits of joining.

The plusses, as described by JGL, were that we would gain valuable experience in blue-booking that could be useful both academically and for internships. Also, our resumes would stand apart from those of our classmates. But considering the multiplicity of worthy-sounding extracurriculars, like tutoring in Harlem or helping domestic abuse survivors, I think that choices made for resume reasons should be closely tied to one's future career specialty. The Department of Homeland Security, for example, may not look kindly upon a background of aiding detainees.

The topic of the journal is interesting to me -- I probably wouldn't consider joining a law and technology publication -- and I would enjoy reading submissions. However, the obvious downside to committing to any activity is the time loss. With real classes starting next week, blogging and other leisure pastimes (sleeping, bathing, etc.) seem likely to be dropped from my schedule. Is it a good idea to make any promises, even of a weekly meeting and a few hours of cite-checking?

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Today / September 2

Today in History (1944) - Anne Frank and her family are placed on the last transport train from Westerbork to Auschwitz. Fifty four years later, a United Nations court finds Jean-Paul Akayesu, the former mayor of a small town in Rwanda, guilty of nine counts of genocide, marking the first time that the 1948 law banning genocide is enforced.

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September 1, 2004

Timed, Placed and Unmannerly

I have a conflicted opinion about protests. While one cannot dismiss the effect some -- such as the 1963 March on Washington -- have had on public perceptions and policy, the disarray of causes typical of recent political protests seems to diminish their force. The 1963 March was a visible sign of the need and demand for particular legislation, that eventually became the landmark Civil Rights Act of 1964. It was a march for something, not just a protest against things.

Nonetheless, on Sunday afternoon I went to a protest against the Republican National Convention.

I didn't go as a protestor, but as a monitor for the New York Civil Liberties Union, which is studying police behavior during protests. The project began after last year's anti-war rallies, particularly the February 15 action. The NYCLU also hoped that the presence of monitors would in itself deter inappropriate actions, though it didn't appear to have had that effect on Friday night, when over 100 cyclists were arrested. Unlike the National Lawyers Guild, which provided direct legal assistance to people being detained and arrested, the NYCLU monitors were tasked only with recording what happened. To put myself in an unbiased frame of mind, I even wore my best Texan clothes (Astros cap and T-shirt) to the NYCLU's storefront.

My partner and I were sent to Central Park, where demonstrators were going to assemble despite not having received a permit. I don't want to generalize what I saw onto the experiences of people who were in other places, at other times. For example, no one was arrested in my presence, but nearly 1500 people have been arrested all together since the anti-convention protests began.

At the Great Lawn, the police were visible, but probably there in no greater numbers than the press. I was there from 3:30pm until 7pm, and everything was peaceful. People were singing, playing drums and chanting, but respected the rule against loudspeaker use. The officers present were friendly and low-key, mostly assembled around the periphery of the area where protestors had gathered. The sentiment was definitely anti-Bush, but I saw more people pushing the "Kerry is just like Bush" line than I did of overt Kerry supporters. The only dubious police behavior I noted was videotaping being done of the protestors. Presumably to fill the need for extra officers, dozens and possible hundreds of personnel from the Organized Crime Control Unit had been called to patrol the protests.

When we took a break to get pizza, the NYCLU dispatcher called us to go to the Boathouse. Protestors had figured out that a delegate dinner was being held there, and had gathered outside the building. When we got there, the crowd was still small and the police relaxed. Even the private security hired by the RNC claimed that they were there not to break up any protests, just to keep things safe. However, the situation escalated as more people gathered and yelled at the Republicans assembled inside. I think that the protestors were inaudible when the doors were closed, as the guests who came outside looked surprised by the sight of them. People chanted various slogans, including "Give the cops a raise," an issue of some controversy between the nominally Republican mayor and the police and fire department unions.

Still, there wasn't much to report until one protestor allegedly (I didn't see this myself but heard it from a press member) got too confrontational with one of the delegates. The police apparently decided to move the protestors away from the Boathouse; NYPD trucks pulled up with metal barriers that began to be placed on both passages to the Boathouse. Having no desire to get arrested, I skipped over to the other side of the road and called the dispatcher.

The protestors gradually exited the area by the Boathouse, moving to the sidewalk and onto the road. This didn't please the police, however, as the mass of people was blocking the NYPD vehicles as well as the shuttles that carried delegates in and out. Also, some protestors had moved up the road to where the shuttles entered the parking lot, and were screaming obscenity-laden insults at the passengers.

Eventually it got so tense that several dozen riot police showed up, wearing hard helmets and carrying white handcuffs. But I really admire how they controlled the situation. No one was arrested, and after a long day of protesting, the people began to get tired and leave of their own will. My feet were hurting, so I wished that the police would give an order to disperse completely, but they didn't. They just kept moving people back and forth, until only 50 or so were still hanging on. At this point, I was getting bored and weary, so I went home myself.

I don't know exactly what happened in the other protest scenes that made the police think that mass arrests were a good idea. But what I saw at Central Park -- a protest that had not been given a permit, and that put the protestors almost face-to-face with their perceived enemies -- certainly gave the impression that the NYPD is capable of keeping non-violent protestors within bounds without handcuffing them.

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Today / September 1

Today in History (1807) - Former Vice President Aaron Burr is acquitted of treason. He had been accused of plotting to annex parts of Louisiana and Mexico to become part of an independent republic.

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When I Grow Up, I'll Drive a Rental!

After I turned 21, I became complacent about age restrictions because I no longer had to lie about my age to do what I wanted. At this point, I could drive, drink, smoke, buy lottery tickets and porn -- what more could the world offer?

As it turns out, there's a final frontier of adulthood: car rentals. Somehow I'd forgotten the prohibition on under-25s that most rental companies apply, and that the remainder exploit in order to charge "underage" clients more than twice as much as the older drivers. I'm blogging out of exasperation here, having had to pay $100 for a two-day rental of a compact Toyota, but I sincerely do wonder what purpose this rule serves.

Friends have pointed out that people under 25 on average are higher risk drivers, and I agree that this is a good reason for insurance companies to charge this demographic more. It would be a good reason for the rental company to charge more if one buys coverage from them. But it is not a good reason to refuse to rent cars to under-25s, or to surcharge their rentals.

I'm in favor of legally distinguishing children from adults, but the rental conspiracy doesn't really do that. We are considered as capable of driving at 16, so it's not a problem of being unable to perform the function; we are considered capable of forming viable contracts at 21, so it's not a problem of being too young to know what we are doing. Twenty-four-year-olds are concededly adults. Why continue to withhold a last freedom of adulthood -- the ability to travel elsewhere and buy temporary automotive mobility -- from them?

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