Magnificent Judicial Snark

A footnote from Judge Reggie Walton's order granting the application of several law professors to file a friend of the court (amicus curiae) brief on Scooter Libby's motion to stay out of prison pending appeal:

It is an impressive show of public service when twelve prominent and distinguished current and former law professors of well-respected schools are able to amass their collective wisdom in the course of only several days to provide their legal expertise to the Court on behalf of a criminal defendant. The Court trusts that this is a reflection of these eminent academics' willingness in the future to step to the plate and provide like assistance in cases involving any of the numerous litigants, both in this Court and throughout the courts of our nation, who lack the financial means to fully and properly articulate the merits of their legal positions even in instances where failure to do so could result in monetary penalties, incarceration, or worse. The Court will certainly not hesitate to call for such assistance from these luminaries, as necessary in the interests of justice and equity, whenever similar questions arise in the cases that come before it.

HT: Daniel Larison

Lewis "Scooter" Libby, of course, is the aide to Vice-President Cheney who was convicted of lying to the grand jury investigating the leaking of the identity of Valerie Plame, wife of a critic of the intelligence used to justify the Iraq War. It's pretty clear that there was no underlying crime, and Libby, although he may have not told the truth (and if so, committed a crime), is the chosen victim in a political-legal drama.

The issue is whether there is enough chance for Libby to prevail on appeal to justify postponing his starting his 30-month prison term. The professors argue that there is enough of a legal question as to whether the appointment of the Special Prosecutor, Patrick Fitzgerald, was constitutional, to create a real possibility of reversal.

What's really going on is that there's a likelihood that President Bush will pardon Libby, but he's more likely to do so in the closing days of his administration than now. Thus Libby's supporters want a delay in the start of his prison term.

The judge's snark, in any case, is both unusual and powerful.

Facial Cruelty vs. Facial Constitutionality

The Supreme Court recently upheld Congress's passage of a ban on "partial birth abortion."

The heart of the opinion is description of the surgical procedure called "dilation and extraction" or ("D & E") by doctors. What the pro-life movement has succeeded in calling "partial birth abortion" is a procedure by which the intact fetus is extracted from the womb and then intentionally killed. The alternate, and still lawful procedure, is to dismember the fetus in the womb and extract the pieces--or to perform a mini-Cesarean.

After the Supreme Court overturned state laws banning the procedure, Congress passed a law prohibiting it. (As the opinion points out, no one has litigated the question of whether Congress even has the power to regulate the practice of medicine). The present opinion (Gonzalez v. Carhart) rejects lower court decisions that upheld a challenge to the federal law. The challengers claimed that the statute was "unconstitutional on its face," in other words, the text of the law itself violates the constitution. For example, a law that required all Texans to attend Baptist churches or pay a fine would be facially unconstitutional; a court would not need to examine how the law was enforced to find it was unconstitutional. In "unconstitutional as applied" cases, the court has to look at actual instances of enforcement to determine whether constitutional rights have been affected.

In this case, the Court concluded that because existing opinions hold that the government has an interest in protecting fetal life stronger later in the pregnancy, and there are still abortion procedures available at this stage of pregnancy, the law was not unconstitutional.

A read of the opinion, however, suggests to me that like the congressmen and senators who adopted it, the justices in the majority were stricken by the cruelty of the procedure.

There was a recent episode of the TV program "House" in which a problem pregnancy results in a very premature delivery. The tiny hand and arm of the baby are depicted. It is, of course, very moving, at least to anyone who has been close to a pregnancy or learned to love babies. So long as the tiny hand is not an abstraction, late-term abortion will have a constituency only among the most zealous advocates of abortion rights.

From Tragedy, To Farce, To Peewee Herman?

The Duke lacrosse case continues to unravel.

The latest defense motion reveals yet more DNA samples found in the accuser's body, that are not identifiable to any suspect. Prosecutor Mike Nifong did not disclose any of these to the defense, as both North Carolina and U.S. Constitutional law require him to do.

In a complex case, mistakes are sometimes made. Prosecutors are sometimes over-zealous. That's improper and can be unethical.

Nifong's conduct, if the defense motion proves correct, goes way beyond mistakes or excess of zeal. This was a conscious attempt to keep a frame-up going, at least past election time.

Where is the outrage from Duke officials? If these defendants were not middle-class white athletes there would be yowls of protest and mass demonstrations.

I'm not going to let any child of mine apply to Duke. The only person who should go to jail is Nifong; it's that bad. Dismiss this outrageous case now!

SCOTUS Restricts Punitive Damages Again

When a jury awards punitive damages, in setting the amount, can it consider harm to people not part of the lawsuit?

Answer: only through the back door.

Punitive damages, although they get a lot of press, are rarely awarded. Clients tend to think the defendant's behavior in their case was outrageous, and they should get such damages. Some states don't allow punitive damages at all. Others restrict them.

Now the U.S. Supreme Court (SCOTUS) has found in the U.S.Constitution reason to impose new restrictions on these damages. Philip Morris USA v. Williams (2007) 2007 DJDAR 2233.

Jesse Williams died, and the jury found smoking killed him, and Philip Morris, manufacturer of his favorite Marlboros, defrauded him into believing smoking was safe. (I know, I know, what planet was he living on? But this post is not about this jury finding.) The jury awarded him $ 821,000 in actual damages, and nearly $ 80 million in punitive damages, which the trial judge reduced to a skimpy $ 32 million. The Oregon Supreme Court restored the original amount.

The case found its way to the U.S. Supreme Court, because of a challenge to the verdict under the U.S. Constitution. Without a federal question, the Oregon Supreme Court would have been the last stop.

SCOTUS has already suggested that punitive damages must bear a reasonable relationship to actual damages, although they haven't said for certain what the maximum multiple is, but has suggested that 9 times might be about right. This case doesn't speak to that issue.

What it says is that in considering the amount of punitive damages, the jury can only consider harm to the plaintiff or plaintiffs in the case itself, not harm to others. In deciding how reprehensible the conduct was, however, the jury can consider harm to others. So, for instance, if Philip Morris hid the dangers of smoking from many people, resulting in more deaths, that fact would make its conduct more worthy of blame (reprehensible), which might increase the amount of punitive damages, but in actually fixing the amount to be awarded, the jury can take into account only the dollar amount it awarded for harm to the plaintiffs in the case itself.

Otherwise, SCOTUS held, all kinds of terrible things might happen, including multiple awards against a defendant for the same harm.

Fair enough, perhaps, but how can the effect on many of the defendants bad acts be considered for blameworthiness, but not for determining whether the multiplier from the actual damages to the punitive damages is constitutionally proper, that is, affords the defendant due process of law?

Only in the fun house world of the law, it seems. We ask juries to do strange things all the time, such as receive evidence for one purpose but not for another. Lawyers know that juries do all kinds of things when they are alone, and don't always follow the instructions, but everyone goes along with the fiction that they can understand subtle distinctions that only a lawyer can love.

Say the plaintiffs slips on a broken sidewalk. Normally, the fact that the defendant fixed the sidewalk after the accident would not be admitted into evidence, because that would discourage people from fixing things after an accident. However, the fact that a private party and not the city fixed the sidewalk might be admitted to show the private party had actual control of the sidewalk, and so was responsible for its condition. Then we ask the jury to consider the evidence for purposes of deciding who had control of the sidewalk, but not to consider the repair as evidence the private party was negligent in not fixing the sidewalk earlier.

So with punitive damages. The jury can look at all the people made ill and killed by smoking Marlboros, to decide that Philip Morris really deserves harsh punishment. It's not supposed to consider harm to other people in fixing the dollar amount of the punitive damages, if in fact it awards any.

Can your letter carrier make this distinction? (Letter carriers often end up on juries in long trials, because the government pays them their full pay while they sit, and they won't be in the rain or in range of a bulldog's teeth for the duration).

Perhaps not. But if the average juror can figure this one out, it might be a little harder, in the future, to get huge punitive damages awards.

One case likely to to be affected is the endless litigation over the Exxon Valdez oil spill case. The punitive damage award keeps getting appealed, then sent back to the trial court, and then appealed again, as SCOTUS continues to clarify the law that applies. SCOTUS loves to reverse the 9th Circuit, the Court of Appeals that decided the Philip Morris v. Williams case.

We haven't heard the last of this issue. When huge punitive damages awards are at stake, and the law is in flux, there's every incentive to appeal, appeal, appeal.

The Anniversary of Roe v. Wade

Apparently today is the anniversary of the Supreme Court's decision in Roe v. Wade.

Although in the past I have taken the view that it is imprudent for the state to ban abortion, I have long believed that the Roe decision was poorly reasoned and politically disastrous. I began a series of posts on Roe, but sad to say haven't brought the analysis up to the Roe ruling itself and the equally important Webster case.

In my view, issues of this kind should be resolved through the constitutional political system, by the legislative process (or in some states, the initiative, which is fraught with other difficulties). When unelected, or even nominally elected judges, use legal reasoning that's impenetrable to the mind of the average citizen, to impose their views on highly charged subjects such as abortion, the political process is thwarted, the losers feel cheated and put upon, and the legitimacy of the system suffers.

Before Roe, the country was drifting in the direction of a less restrictive approach to abortion, and if Roe is overruled, the political process will resume. In some states, such as California, which has placed a "right of privacy" in its Constitution, a permissive approach to the issue will prevail; in others, more conservative, some degree of restriction is likely to be enacted. Even supposedly conservative South Dakota refused, this last election, to enact an absolute abortion ban with no exception for rape or incest.

I've also grown increasingly uncomfortable with the cultural consequences of a relaxed approach to abortion. I remember the sorrow when my wife miscarried, before our first child was born healthy. As potential viability becomes possible earlier in a pregnancy, late-term abortion becomes more and more akin to infanticide. Looking at the results of sex-selection abortions in Asia (millions of men who will be unable to marry, because the babies who would have grown up to be their wives were aborted, among other things), the creepily casual way in which technology is used and misused in reproductive matters, and other changes, few of them good, in the culture, I am increasingly troubled. In addition, rather than overpopulation, the developed world appears to be facing rapid population decline, as well as a decline in family life.

It appears to me more and more that we, and I in particular, have gone astray in these matters and the easy acceptance of abortion looks to be one of the reasons. There is much to answer for.

White Shoe Law Firms vs. the Neocon-Christer Mafia

Boy Genius Eugene Volokh

The Volokh Conspiracy is my favorite law blog. Eugene Volokh, leader of the pack, is a law professor and former child prodigy at my alma mater, UCLA Law School, and writes on free speech and slippery slopes, among other things.

On this page, posts are gathered together about the remarks of deputy assistant secretary of defense of detainee affairs Cully Stimson, who questioned the number of major corporate law firms who had signed up to represent detainees at Guantánamo Naval Base, who are, of course, suspected or accused of terrorist activity and affiliations. Stimson suggested that corporate clients pressure these Establishment firms to eschew these representations. Critics, including the Volokh conspirators, piled on the heretic. After a barrage of press and blogosphere discussion, Stimson recanted. However, as Galileo is supposed to have said, the moon still moves.

One of the question laymen often ask lawyers is why they represent people who are obviously guilty of heinous crimes. The stock answer is that to insure we have a fair system, everyone is entitled to representation, and if the goal of representation for everyone is to be achieved. In the abstract, I agree with the statement, although of course many who represent unsavory defendants have other motivations, such as money, fame, making political points, and sympathy for the accused or their plight. None of these motivations is necessary to be condemned, either, but one need not acknowledge the nobility of the actions of lawyers like Lynne Stewart, who was convicted of providing non-legal assistance to the convicted terrorist Omar Abdel Rahman, known as the "Blind Sheikh," or the communist lawyers whose representation of unpopular defendants is said bys ome to have been designed to propagandize about the unfairness of the system, as opposed to achieving the best results for their clients.

Because of the importance of providing representation to all, it's considered unethical to try to dissuade a lawyer from representing a particular defendant. The criticisms that Stimson drew are understandable from this perspective.

And yet, it's worthy of comment that these white shoe firms have flocked to work on this particular issue. The younger lawyers in these firms are perhaps influenced by legitimate concerns for the innocence of some of the detainees (many apparently got swept up in post 9/11 operations more or less at random) and the procedural confusion attendant upon their incarceration, and the professionally interesting constitutional issues raised by the clients' situation. Are they also salivating in response to the conditioning they received at the major law schools, with their heavily left-wing culture, and their location in the blue-state word-worker élite that regards Bush & Co. as a bunch of Bible-thumping fascist rubes, and the Guantánamo cases as a blow against some neocon-Christer Mafia?

The white shoe firms' choice of pro bono clients is not a legitimate target of government pressure, but why these folks choose to do what they do is a proper subject of public discussion.

Mt. Soledad Cross

The Ninth Circuit (the federal Court of Appeals that covers California) has told the District Court to vacate (withdraw) its order requiring removal of the large cross on Mt. Soledad in La Jolla.

On May 3, 2006, Judge Gordon Thompson, Jr., moved to enforce an order he initially made in 1991, telling the city that the cross violated the state constitution's ban on government aid and preference for religion, and to remove it or face a fine of $5,000 per day. In August, Congress passed a bill allowing the federal government to take control of the land. That rendered Judge Thompson's order moot, since the land no longer fell under the authority of the California constitution, triggering the 9th Circuit's decision.

Two more lawsuits, of course, are in the wings, challenging the federal government's allowing the cross to remain on federal land.

That we spend so much time on issues like this confirms my view that our freedom-of-religion jurisprudence is wacky. It's a majority (and historically) Christian country. You don't have to like it, but it is. Get over it.

The Somali Cabbies of MPLS

Somali cabbies in Minneapolis, who apparently make up a significant proportion of the cabbies who serve the airport, are demanding the right to refuse service to anyone transporting alcohol, or dogs. Alcohol is forbidden under Islamic law, and according to some interpretations, dog saliva is ritually unclean.

In fact, the unilateral refusal of service is inconveniencing others, including the "First Mate," the wife of Minneapolis blogger Captain Ed:

It also goes beyond the airport cabs, as the First Mate discovered on more than one occasion where she used taxis for normal travel when she still used Cory as her guide dog. She had to threaten one cabdriver with a complaint to get him to allow the dog, and on other occasions had to explain the open access laws for service dogs in America.

Now, compare and contrast the issues raised by Christian pharmacists who claim the right to refuse to sell the "morning after" pill on the ground that it's a forbidden abortifacient. Feminists and lefties are outraged, arguing that a pharmacy is a kind of public utility that should not be able to pick and choose what services within its authorized area of business it will provide.

The Muslim cabbies and the Christian pharmacists are claiming a religion-based exemption from a rule of general application.

There is a long history in this country of enacting generally applicable laws that have a religious basis, notably Sunday closing, or "blue" laws. These have been upheld in many cases, but on the somewhat strained basis that they have a secular purpose, such as limiting the hours of work or preventing traffic congestion.

The constitutional case law in this area is quite confused. But from a policy perspective, requiring a licensed public conveyance to carry anyone carrying a lawful substance or a licensed guide dog hardly seems like an imposition, and the demand for an exemption by a religion whose beliefs demand the enactment of its own system of law to govern society as a whole, seems ominous.

Another Suspect Prosecution

Prosecutors in the United States have ethical duties different from those of other lawyers. Although most lawyers' duty is to represent their clients zealously, within the bounds of the law, prosecutors' obligation is to convict only the guilty. Theoretically, they represent "the People" ("What a majority!" as the defendant in the joke says, as the case of "People vs." him is announced). "The People" want to convict only those found guilty beyond a reasonable doubt, obliging a prosecutor not to try the innocent. Moreover, loyalty to the system should limit a prosecutor's zeal to convict if only improper tactics, such as concealing evidence, appear likely to secure conviction.

Mike Nifong is District Attorney in Durham, North Carolina, where the would-be Harvard of the South, Duke University coexists uneasily with a heavily black town. Earlier this year, some Duke lacrosse players, all but one of them white, in the way of a certain kind of young men, hired two black strippers to perform at a party, where no doubt some of them drank too much. One of the strippers got hysterical and cried "Rape!"

Politics overlays any rape charge, and especially an interracial one. Two movements, the black civil rights movement and the women's movement, have made an issue of rape. At one time, false charges of rape of white women against blacks led to controversial convictions and causes célebres. The fear of race-mixing and the taking of white women by supposedly sexually powerful and animalistic black men was a theme in racial politics. Meanwhile, in the Old South, it was common for powerful white men to have their way, more or less secretly, with black women. An example is the late Senator Strom Thurmond's posthumously disclosed fathering of a child with a young black housemaid, a child he supported, to his credit, all his life.

The women's movement, on the other hand, developed a narrative that violence against women was one means of maintaining what they saw as inequality between the sexes, with rape being too common and insufficiently punished, in a number of ways. Susan Brownmiller was one of the first writers to argue these points, typically intensified to the frontiers of madness by the late Andrea Dworkin. This agitation led to legislation that restricted inquiry into accusers' sexual histories to invoke the "she got what she deserved" meme, and criminalized rape within marriage. The notion that even an unchaste woman should not be forced into sexual relations by violence became commonplace. Supposedly rampant "date rape" became the subject of endless agitation on college campuses.

The events in Durham invoked the concepts of both movements. Blacks were likely to regard the supposed rape as a throwback to the era of Jim Crow and unpunished white violence against black women, while the stereotypes of the drunken, privileged college athlete and the victimized young black girl led a rush to judgment. Some 88 Duke faculty members, mired in gender politics and multiculturalism, were quick to issue a statement. Duke's President, Richard Brodhead, suspended the lacrosse program and issued self-flagellating statements.

Meanwhile, DA Nifong was in a struggle to be elected to the office for the first time after his appointment. There was a rush to judgment, Nifong hyped the story and the press obliged him, and three lacrosse players were indicted. Nifong was narrowly elected.

The accusations began to unravel almost immediately. The accuser and her companion told conflicting and changing stories. It turned out the that accuser had cried rape before and then withdrawn her claims. The photo array used to identify the accused was fatally tainted--all the photos were of lacrosse players, including no non-suspects as is normally and properly done. Some of the players had ironclad alibis, casting doubt upon the chronology.

In recent days, it has come out that the DNA testing performed by a private laboratory revealed that the accuser had had sexual relations with a number of men in the days before the alleged rape, but NONE of them was a lacrosse player. Although it's theoretically possible that the accuser was busy with others, unprotected, before the party, while the rapists all wore condoms, the crucial fact is that the DA and the lab knew about these results for months, and the DA failed to disclose them to the defense, as constitutional criminal law requires.

As a result of this embarrassment and the severe doubts this evidence evoked, Nifong recently dropped the rape charges, while maintaining others not involving penetration. The credibility of the accuser, who didn't mention her numerous men friends, can't possibly stand up under minimally competent cross-examination.

Now it's DA Nifong who is in the sights. The State Bar has issued formal charges that Nifong breached ethics in his loud and false statements to the press early on, and may amend those charges to include other misconduct, including concealing evidence and misleading the court. The North Carolina association of DA's, a type of group that's normally rabidly pro-conviction and pro-punishment, called upon Nifong to withdraw from the case. Among other things, the pending misconduct charges against Nifong create a conflict with his duty to exercise discretion in whom he charges and prosecutes, and how he prosecutes them.

These young men have been grievously abused, and their troubles aren't over. If they hadn't had parents with money to pay lawyers, they might be headed for prison for a crime they did not commit.

Duke has suffered. The reflexive, ideological stupidity of its faculty, and the knee-jerk abandonment of its students by President Brodhead will undoubtedly tarnish its reputation and scare away applicants, even though most faculties and our large, prestigious institutions might very well behave similarly. If I were a Trustee, I'd want to fire the man immediately.

These events also demonstrate the racial inversion that has taken place in this country. If events occur that seem to support the concept that white racism and anti-black violence are commonplace, the press jumps on them. The Jesse Jacksons and Al Sharptons ride into town and the marches follow.

In reality, black-on-white violence is far more common nowadays than the reverse, and the same is true of rape. Black racism toward whites today seems more marked than white racism toward blacks, the public expression of which is not only taboo, but in many places, such as universities, leads to an orgy of self-flagellation. Discrimination against whites in favor of blacks, misnamed "affirmative action" is seen as a sacred duty in some quarters.

One hopes that we will learn something from these events. I doubt we will.

For more information about the Durham events, see LaShawn Barber's blog; this one, especially dedicated to the case; the inimitable Captain Ed; and Mary Katherine Ham's video tour of all the places in Durham where things did not happen.

What Roe Is All About II (Incorporation and Privacy)

This piece is reproduced from my personal blog. It was written in October 2005, and is second in a series, still incomplete, on Roe vs. Wade, looked at from a legal, not a political or moral perspective. My earlier discussion is here.

I

Remember that we ended the Introduction with a discussion of the Fourteenth Amendment's ban on the states acting against the newly-minted ex-slave citizens, or any citizens by Denying them the privileges and immunities of citizens Depriving them of life liberty or property without due process of law; or Denying them the equal protection of the laws. All of this sounded good, and to the Radical Republicans who enacted the Fourteenth Amendment, had a clear intent of protecting the ex-slaves.

Within a few years, however, interest in affording much protection to the ex-slaves waned, and with the compromise arising out of the disputed 1876 election, Rutherford Hayes was allowed to carry Florida in exchange for a promise to end Reconstruction and give the white South a free hand with respect to the Negroes, who were relegated once again to a condition of subordination.

By 1896, the Supreme Court held in Plessy v. Ferguson that a state could enforce racial segregation in railroad cars, provided the facilities provided to each race were equal. In other areas, however, the Supreme Court found that certain rights of individuals and of corporations (fictitious legal "persons") under the federal constitution applied, under the Fourteenth Amendment, also to the states. The key case for this principle is Lochner v. New York. Lochner held unconstitutional a law of New York that forbade employers from making bakers work more than 60 hours in a week. The court held that a "freedom of contract" that the Fourteenth Amendment imposed upon the states trumped the states' inherent police power, and made it unconstitutional for a state to regulate the hours of work of bakers, even though restrictions on the hours of work of miners and others by other states had been upheld on health and safety grounds. The Supreme Court held that no such restriction on the work of bakers was justified by such health considerations.

This doctrine in Lochner has been labeled "substantive due process." In other words, it is not a case of a right being taken away without proper notice and procedures ("procedural due process"), but the content of the law itself the Court found offensive to the Constitution. In the economic sphere, substantive due process survived little more than 30 years. It was tossed out during the New Deal, when government regulation of the economy, in the face of the Great Depression, once again became fashionable. But Lochner is most emphatically not dead in non-economic spheres. Increasingly, the court has held, whether or not the focus is the Fourteenth Amendment's original one of race that the rights enumerated in the first ten amendments, much, if not all, of the "Bill of Rights" now applies to the states because the Fourteenth Amendment makes it so. Reams of paper have been covered with arguments as to which aspects of the Bill of Rights are "incorporated" or applied to the states under the Fourteenth Amendment.

II.

The other abstract concept needed to understand the legal arguments about Roe is the "right of privacy." In American jurisprudence, the concept of a "right of privacy" is generally traced back to an article by later Supreme Court Justice Brandeis and his law partner Samuel Warren in the Harvard Law Review. Brandeis and Warren wrote not about highfalutin' constitutional law, but about the law of torts, a tort being a civil wrong not arising out of a contract, for which suit may be brought. Brandeis and Warren argue that there is ample justification for the common law, as it does from time to time, to create a new tort, whereby damages and more rarely, an injunction, could be obtained for unauthorized publication of private facts, even if truthful. The article does not address the question of whether the constitution itself contains (or does not contain) an implied right of privacy. Brandeis and Warren's "privacy" deals more with protection against the likes of paparazzi than against state legislation:

Of the desirability -- indeed of the necessity -- of some such protection, there can, it is believed, be no doubt. The press is overstepping in every direction the obvious bounds of propriety and of decency. Gossip is no longer the resource of the idle and of the vicious, but has become a trade, which is pursued with industry as well as effrontery. To satisfy a prurient taste the details of sexual relations are spread broadcast in the columns of the daily papers. To occupy the indolent, column upon column is filled with idle gossip, which can only be procured by intrusion upon the domestic circle. The intensity and complexity of life, attendant upon advancing civilization, have rendered necessary some retreat from the world, and man, under the refining influence of culture, has become more sensitive to publicity, so that solitude and privacy have become more essential to the individual; but modern enterprise and invention have, through invasions upon his privacy, subjected him to mental pain and distress, far greater than could be inflicted by mere bodily injury.

As we shall see, it is this concept of privacy, brought into the constitutional law and imposed on the states through the Fourteenth Amendment "incorporation" doctrine, that provided the initial rationale for Roe. Whether "privacy" can be found in the Bill of Rights, whether "incorporation" applies a right of privacy to the states, and whether abortion is within the scope of any such right of privacy, are all questions which must wait for further posts.

The Polygamous Judge and the Future of "Privacy"

Under pressure from the Utah Supreme Court, which in turn was responding to an anti-polygamy group made up largely of women, Judge Walter Steed, who has three wives and no less than 32 children, has resigned. Steed is a member of one of a number of Mormon sects that rejected the deal by which the mainstream Mormons abandoned polygamy (polygyny, really, because a woman cannot take more than one husband at a time) in exchange for statehood.

Notable is the Utah Supreme Court’s careful distinction between the constitutional questions, which are very much alive, and the issue on which it ruled, a judge’s obligation to follow the law even if he disagrees with it: "In the case of a sitting judge, it is of little or no consequence that the judge may believe a criminal statute is constitutionally defective," the court said. "A judge ignores the clearly stated clearly stated criminal prohibitions of the law at his or her peril." "Civil disobedience carries consequences for a judge that may not be applicable to other citizens," the court said. When judicial officers violate or ignore laws, "the stability of our society is placed at undue risk."

Judge Steed did not abandon his belief that the practice of polygamy is constitutionally protected: "I am hopeful that the court will eventually consider the issue of polygamy as an aspect of personal privacy, marital rights and religious freedom," Steed said. "I am proud of my effort to bring the issue before the court and the people of Utah."

This story is more than a bit of Utahn exoticism. Opponents of gay marriage have long argued that there is no principled basis for saying that gays have a privacy-based right to marry, while sincere polygamists do not. Sen. Rick Santorum was pilloried for making just this point, as Stanley Kurtz points out. If in fact the basis for claim the Constitution prohibits the states from forbidding gays to marry if it allows the same privilege to mixed couples, is the doctrine that the state may not interfere in the liberty interest that consenting adults have in ordering their sexual and marital lives without state restraint, it is hard to see why only gays can benefit from such privacy claims. Such claims are being asserted on behalf of at least three groups: Polygamists, such as the good judge,who based their practice on pre-Admission Mormon doctrine. In many foreign non-Muslim countries, the sharia-based claim to a right to polygamy is now at least on the agenda. The more New Age-y “polyamorists” who advocate not only polygamy, but various forms of group marriage.

Although there is a loud and influential gay community that has promoted gay marriage, perhaps accounting for its prominence as a public issue, there are at least as good constitutional arguments in favor of polygamy. Unilike gay marriage, it furthers a public policy interest in favor of reproduction. Moreover, it is supported by religious texts that are meaningful to the supporters of the practice, unlike gay marriage, which must depend either upon a rejection of the dominant monotheistic traditions, or upon a tortured reading of their texts.

The question of whether any of these practices should be sanctioned as a result of democratic debate and legislation is a different one that whether the fads and fashions of a couple of decades should be enshrined in constitutional law. By starting with a weak theoretical basis (”penumbras” from the Bill of Rights as applied to the states under the Fourteenth Amendment), the groundwork was laid for the justices to impose the fads of Cambridge and Manhattan’s élites on the country by fiat, and claiming a constitutional mandate for doing so. What follows from this tortured reasoning is a doctrine that contains no principled basis for imposing practices even more repugnant to the values of the majority. The gradual extrapolation from these doctrines, created for the nonce to justify a desired result, will lead us no one knows where. Let us be thankful that no one (yet) has found in the Constitution a basis for giving a rat the same civil rights as a boy as PETA’s famous slogan would seem to urge.

The Culture Wars Go to Court (Yet Again)--The University of California vs. Christian Schools

(Originally published February 15, 2006)

An important First Amendment dispute is winding its way through the courts in Riverside County. In California, the University of California (Berkeley, UCLA, etc.) sets admissions standards. If it refuses to approve certain courses, or requires others, there is a ripple effect throughout the high schools, public and private, whose more qualified graduates often apply to UC.

Although UC has approved high school courses on theme such as feminist approaches to literature, it has recently refused to approve courses offered by Christian schools, such as Christian approaches to literature. The dispute also extends to science classes--physics and biology. The Calvary Christian schools contend that UC is disapproving the courses because of the points of view they espouse, not because the courses are of inferior quality or don’t cover important and challenging literature. UC says it's enforcing scientific and intellectual standards, not discriminating against faith-based institutions.

The U.S. and California constitutions forbid such discrimination, but don't bar a state university from setting academic standards. Because UC is a state institution, the First Amendment would prevent it from discriminating against a course because its viewpoint is influenced by religion (or anti-religion, for that matter).

If the standards of the course are too lax, its a different story. There could be a different story in the case of science classes. A biology class that didn't cover evolution, or a physics course that didn't address the Big Bang would be in violation of generally accepted scientific standards. A biology class that presented the theory of evolution thoroughly, but criticized evolutionary theory on empirical or religious grounds would be a closer question. Is it enough to explain the theory and express skepticism about it, or must it be taught as truth? These questions aren't easy. The outcome may well turn on the specifics of the courses, and the University's record on similar courses whose orientation is less likely to offend the liberal mind. Judges hate to second guess academic decisions, if only because they want to discourage lawsuits on these matters, but when a constitutional issue is joined, the courts have no choice but to decide it. Watch this space.

Hat tip: Al Mohler, who cites an article by Charles Haynes of the First Amendment Center

Free Speech--or Safe Speech?

Within the worldwide rioting and controversy over a few cartoons published in a small Danish newspaper lurks a distinction between two approaches to freedom of speech. In the United States, there are few limits on speech about matters of public controversy. Even the libel laws have been weakened because it seemed more important to allow robust debate, at least about "public figures" than to suppress speech. Two examples illustrate the point.

In 1978, a small group of neo-Nazis decided to conduct a march through the Chicago suburb of Skokie, Illinois, which had a large Jewish population. Even though the march was highly offensive and could have provoked a violent reaction, in the end, the courts held that the authorities could not ban it. The ACLU (American Civil Liberties Union), notwithstanding the many liberals of Jewish origin in its ranks, took the "First Amendment absolutist" position that however offensive, the First Amendment forbade a ban on the march.

A 1949 case, Terminiello v. Chicago, addresses that question: can the authorities ban speech that arouses the anger of others and thus is likely to cause a public disturbance. Terminiello was an extremist who sought to deliver a speech to the Christian War Veterans of America. A hostile crowd gathered, and the authorities arrested Terminiello, who was convicted of disorderly conduct. The case found its way to the U.S. Supreme Court, which overturned the conviction, holding: Accordingly a function of free speech under our system of government is to invite dispute. It may indeed best serve its high purpose when it induces a condition of unrest, creates dissatisfaction with conditions as they are, or even stirs people to anger. Speech is often provocative and challenging. It may strike at prejudices and preconceptions and have profound unsettling effects as it presses for acceptance of an idea. That is why freedom of speech, though not absolute, Chaplinsky v. New Hampshire, supra, 315 U.S. at pages 571-572, 62 S.Ct. at page 769, is nevertheless protected against censorship or punishment, unless shown likely to produce a clear and present danger of a serious substantive evil that rises far above public inconvenience, annoyance, or unrest. See Bridges v. California, 314 U.S. 252, 262, 193, 159 A.L.R. 1346; Craig v. Harney, 331 U.S. 367, 373, 1253. There is no room under our Constitution for a more restrictive view. For the alternative would lead to standardization of ideas either by legislatures, courts, or dominant political or community groups. The job of the police, therefore, is to protect the speaker from those angered by his speech, not to arrest the speaker, even if his ideas are outrageous, to protect the public peace.

There is another view, that finds currency in Europe, and also in corners of this country, for example, some colleges and workplaces. This view is that the social harm (not to say danger of disorder) caused by speech that offends racial, religious, or other minorities, outweighs any benefit in allowing such speech, and therefore the law can prohibit or punish certain kinds of speech. An example of this kind of law is the prohibition in Canada and many European countries, on public denial of the Holocaust, and the German ban on displaying Nazi symbols.

This approach finds its strongest echoes in this country in colleges where campus codes prohibit "racist" and "sexist" speech, and workplaces where employers, fearing "hostile environment" discrimination lawsuits, prohibit certain kinds of remarks and expressions of opinion. These restrictions are often not directly imposed by government, and so are a bit different than the European and Canadian laws.

The vice in this kind of law is not only that it will lead to standardization of ideas by dominant groups, but it is likely to best protect those minorities, such as radical Muslims, who are most easily offended and most likely to react violently to opinions, words, or even cartoons they dislike. The more sensitive the minority and the more severe its reactions when offended, the more likely the law is to cater to its prejudices. For this reason, retreat from the American principle that freedom of speech and the press includes the right to say things that will offend others would be most dangerous. In our society, almost anything one might say other than "Have a nice day!" is likely to offend someone.

A society that starts suppressing ideas just to avoid hurting people's feelings, is well on its way to losing its freedom altogether. This danger is not imaginary. In Sweden, a minister was prosecuted for expressing the view that the Bible condemns homosexual conduct. In Italy, Oriana Fallaci is being prosecuted for her polemics against Islam. And so on, down the slippery slope. That is not to say that people should act in a way that offends others, or that tests the limits of free speech and the patience of the public, just to prove in the most puerile way possible that speech is free--only that the law should not prohibit speech just because some find it offensive or even infuriating.

What Roe Is All About--Introduction

(First posted February 14, 2006)

Last October, on my personal blog, when the Supreme Court appointments began to be an issue, I began a series, still unfinished, about the legal issues in the endless battle about Roe v. Wade, the case in which the Supreme Court found that the Constitution forbids the states from making it a crime to interrupt a pregnancy, especially in its early stages.

I thought to focus on the constitutional issues, as opposed to the moral and political aspects of the issue. I’ve slightly revised this post for my law blog, and I’ll be posting the remaining sections from time to time. Nevertheless, I do think it’s important to begin by saying that if I were a legislator, I'd vote in agreement with what most Americans believe. It would be a mistake for the government to forbid all abortions, when there is no consensus among the people. However, abortion should be regulated, especially in the later stages of pregnancy when a premature birth might result in a baby capable of survival.

I don't think abortion in the early stages of pregnancy is the same as murder. That's a theological or philosophical debate to which I don't have much to contribute, but before I begin discussing the Constitutional aspects of the issue, it's best to lay at least that much on the table.

This approach--allowing abortion but restricting it-- would probably be the law in most states if the Supreme Court had never been involved in the issue, and the noise of the controversy would be far less loud. Why? Because the political process would have taken effect, and changing public attitudes would be reflected in law. No doubt Utah and a few Bible Belt states would outlaw abortion entirely, and others would restrict it. Others, like California, have put a "right of privacy" into their constitutions that was intended, among other things, to limit the state's ability to interfere with abortion. As Justice Ginsburg long ago observed, the effect of the Roe decision was to cut short the political conflict.

The debate has now metastasized into a debate not only about constitutional law, but about the role of the Supreme Court and how justices should be selected. Our Constitution gives the federal government limited powers, and the Bill of Rights, the first ten amendments to the Constitution, places specific restrictions on the feds' ability to do things like promulgate a state religion and tell newspapers what to print. Originally, these restrictions did not limit the powers of state governments, which were sovereign. After the Civil War, a Congress purged of rebels passed three constitutional amendments. One, the Fourteenth, was designed to insure that freed slaves became full citizens, and thus provided that persons born or naturalized in this country were citizens of the states where they reside. It also did other post-war things, such as invalidate the Confederate debt, that are rarely spoken of today.

The language of the Fourteenth Amendment relevant to our discussion is this:

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

For the first time, the Constitution limited what the states could do. The original idea was to protect the freed slaves. As we shall see, that ideas has stretched quite a bit beyond that intention since. What were the "privileges and immunities" so protected, what were the protected "life, liberty, [and] property" and what was "equal protection of the laws"? The language is general, and when language is general, lawyers prance, preen and saunter. Where this legal horsing around has led our constitutional law, is something I’ll take up in a later post in this series.

UPDATE: My views on the moral questions involved have evolved somewhat. I am becoming persuaded that the moral criticism of abortion holds weight, as do the "slippery slope" and demographic concerns many express about a socially permissive view. This doesn't necessarily change either the constitutional analysis or the political question.