Check out this article on the recently re-introduced bill, sponsored by Sen. Arlen Specter (R-PA), to require the Supreme Court to televise its proceedings. Specter has advocated televising the Court's proceedings before, by sponsoring SB 1768 last year to that effect, but his proposal did not reach the Senate floor. Regardless of your attitude toward the Supreme Court, however, the bottom line remains the same-is Specter's legislation (co-sponsored by one other Republican and three Democrats) going to benefit or hinder the Court's deliberative process?
To take a look at this issue, I am going to examine some of the senator's arguments, from his statement in the Congressional Record made upon the bill's re-introduction. The new bill is known as SB 344.
- "With this information, the public would have insight into key issues and be better equipped to understand the impact of and reasons for the Court's decisions."
The problem with this reasoning is that Specter's bill only televises oral arguments, not the justices' conference, discussions with law clerks, or any other internal communications that may contribute to deciding the outcome of a case. Televised coverage of oral argument would allow the public to see only a part of the case, excluding other facets that have as much or greater bearing on the ultimate disposition. In order to put much of what is said at oral argument into context, one could read the briefs that are available on the Court's website, but even this would be an incomplete picture. No one, not even the justices' office staff, are allowed in the room during conference. Ultimately, without delving into the briefs and other documents related to the case, a televised oral argument would lack the context needed to accomplish the bill's purported goals.
- "In a very fundamental sense, televising the Supreme Court has been implicitly recognized--perhaps even sanctioned--in a 1980 decision by the Supreme Court of the United States."
The decision to which Senator Specter is referring is Richmond Newspapers v. Virginia, 448 U.S. 555 (1980), in which the Court, in an opinion written by Chief Justice Warren Burger, upheld the right of the public to attend criminal trials. In the opinion, he cited freedom of the speech and press, as well as the Due Process Clause of the Fourteenth Amendment. However, it is important to note that Richmond dealt with allowing members of the public to attend trials, and criminal trials at that, not with any specific right to televised media coverage (although media coverage, through members of the press, is implicit in the right to attend). Whether the Court would recognize a constitutional right to television coverage of its own proceedings is open to speculation (although I doubt Justice Souter would be writing that opinion-he is quoted as saying that television cameras would enter the chamber "over my dead body").
As the senator noted in his introductory statement, the Court could opt out of television coverage when necessary to protect the Due Process rights of one or more of the parties involved. However, if this bill passes, any such decision by the Court would be subject to strict scrutiny, and must be narrowly tailored to achieve a compelling government interest. See, e.g., Globe Newspaper Co. v. Superior Court, 457 U.S. 596 (1982).
- "I believe it is vital for the public to see, as well as to hear, the arguments made before the Court and the interplay among the justices."
At this point, the question becomes what television cameras will add to the process that is not already gained by allowing transcripts and audiotapes. Requiring Supreme Court oral arguments to be televised would give Americans a visual component to what had previously been depicted only in drawings and playing back a tape recording on the news that night. One could gain from the large percentage of communication that is purported to be visual, while being able to observe the process of oral argument for what is probably the first time. One of the positive effects would thus be transparency-while oral argument is not the only factor in the justices' decision, it may provide a window into their thoughts on a particular case, and thus make the Court seem more "accessible" to many Americans.
However, like many Supreme Court opinions, we must here employ a balancing test. Televising the Court's oral arguments could potentially demystify the process in the minds of many people, and educate the public about what goes on after the first "Oyez." But introducing television cameras also introduces the weapon of public opinion. Though the Court may not be as susceptible to political pressures as Congress, the justices are nonetheless a product of their time. Who can doubt that this was behind some of the most noteworthy (and in some cases, notorious) Supreme Court rulings in our history? Korematsu was handed down in the wake of Pearl Harbor, with our country teetering on the brink of defeat in the Second World War. A few years earlier, West Coast Hotel v. Parrish was the "switch in time that saved nine," sparing the justices and the nation from FDR's Court-packing plan. And more recently, we have borne witness to an entirely new form of political influence, this time coming from Ottawa, Sydney, and the halls of the European Parliament in Strasbourg. Allowing counsel access to television cameras introduces the possibility that the medium will be used for such invasive means, with ramifications no one can yet grasp.
These are just a few of the arguments for and against televising the proceedings of the Supreme Court. Overall, like the country, the justices are divided on the use of this technology: Justices Scalia and Ginsburg are accepting of the idea, while Justices Thomas and Souter are opposed. My prediction is that the idea will not be adopted, barring a supermajority of justices, perhaps seven or eight, willing to put it into place.
Sources:
Statement on the current bill
Statement on the previous bill
NPPA Article on SB 1768
Showing posts with label Legal news. Show all posts
Showing posts with label Legal news. Show all posts
Tuesday, February 20, 2007
Wednesday, December 20, 2006
Legal News: Christmas-Itis?
More on the Chicago Christmas (er, winter solstice) display, as I break from studying for the night. There doesn't seem to be much else to report on, other than the fact that this whole business about banning Christmas symbols has gotten way out of hand.
Just a thought: has anyone advocating the removal of anything and everything remotely "religious" from public property ever stopped to consider the fact that by doing so, they might be undermining their own cause? Consider this reasoning.
One of the reasons commonly cited for purging public property of nativity scenes or any other mention of Christmas is that passersby will conflate their presence with government "endorsement" or "sponsorship" of the ideas or viewpoints being expressed. This is roughly parallel to the recent Supreme Court cases involving courthouse displays of the Ten Commandments. In one of these recent decisions, Van Orden v. Perry, the Court upheld the display of a Ten Commandments monument on the grounds of the Texas state capital building, but not before Justice Stevens noted the risk of "'offend[ing] nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful.'" (Stevens, J., dissenting), quoting Allegheny County, 492 U.S. at 651 (Stevens, J., concurring in part and dissenting in part). The basic idea is that there has to be "neutrality" between religion and what the members of the Court refer to as "irreligion." If a nonbeliever walks by a Ten Commandments monument or nativity scene outside the courthouse, it is implicit in the "offensiveness" that the government is preferring one point of view over another.
Source: http://www.law.cornell.edu/supct/html/03-1500.ZD.html
The problem comes when you consider the amount of media attention these Establishment Clause cases have received, and the measures that have been taken in granting a remedy to plaintiffs who sue over nativity scenes and displays of the Ten Commandments (which, incidentally, is displayed in frieze at the U.S. Supreme Court). After former Alabama Chief Justice Roy Moore lost his battle to keep the Decalogue displayed in his courthouse, workers came and carted off the 1,500-lb granite monument, in the presence of a large crowd who had gathered outside the courthouse to pray and show their support. Several years ago, after the ACLU challenged the city seal of Stow, Ohio, city officials were forced to use electrical tape to cover up the portions of the city seal deemed to be a violation of the "separation of church and state." Time and again, these stories make national headlines because they are so dramatically out of step with what the vast majority of Americans believe: acknowledging a belief in a higher power is important to our culture and legal system, and consistent with our national heritage.
Does anyone really believe that a nativity scene puts us on the verge of ushering in a theocracy? I think it's worth considering that those who oppose the display of Christmas symbols and traditions (and seek to banish them from public schools) are ultimately doing more harm than good to their cause by bringing this issue to the forefront of the cultural discourse. It's not just that it is making headlines on so many different occasions, but that the manner in which it is being done is so flagrant, and so obnoxious to the beliefs of so many, that the more that cities, towns, school districts, and airports in Seattle give in, the less opponents of public displays of Christmas can plausibly cry foul. How can anyone say we are "establishing religion" when so many concessions are made? And unless they can get help from groups like the Alliance Defense Fund, individuals are going to be less and less willing (and financially able) to stand up to the ACLU and others.
So when it comes to being offended and excluded, the shoe is now being worn on the other foot-yours and mine.
Just a thought: has anyone advocating the removal of anything and everything remotely "religious" from public property ever stopped to consider the fact that by doing so, they might be undermining their own cause? Consider this reasoning.
One of the reasons commonly cited for purging public property of nativity scenes or any other mention of Christmas is that passersby will conflate their presence with government "endorsement" or "sponsorship" of the ideas or viewpoints being expressed. This is roughly parallel to the recent Supreme Court cases involving courthouse displays of the Ten Commandments. In one of these recent decisions, Van Orden v. Perry, the Court upheld the display of a Ten Commandments monument on the grounds of the Texas state capital building, but not before Justice Stevens noted the risk of "'offend[ing] nonmembers of the faith being advertised as well as adherents who consider the particular advertisement disrespectful.'" (Stevens, J., dissenting), quoting Allegheny County, 492 U.S. at 651 (Stevens, J., concurring in part and dissenting in part). The basic idea is that there has to be "neutrality" between religion and what the members of the Court refer to as "irreligion." If a nonbeliever walks by a Ten Commandments monument or nativity scene outside the courthouse, it is implicit in the "offensiveness" that the government is preferring one point of view over another.
Source: http://www.law.cornell.edu/supct/html/03-1500.ZD.html
The problem comes when you consider the amount of media attention these Establishment Clause cases have received, and the measures that have been taken in granting a remedy to plaintiffs who sue over nativity scenes and displays of the Ten Commandments (which, incidentally, is displayed in frieze at the U.S. Supreme Court). After former Alabama Chief Justice Roy Moore lost his battle to keep the Decalogue displayed in his courthouse, workers came and carted off the 1,500-lb granite monument, in the presence of a large crowd who had gathered outside the courthouse to pray and show their support. Several years ago, after the ACLU challenged the city seal of Stow, Ohio, city officials were forced to use electrical tape to cover up the portions of the city seal deemed to be a violation of the "separation of church and state." Time and again, these stories make national headlines because they are so dramatically out of step with what the vast majority of Americans believe: acknowledging a belief in a higher power is important to our culture and legal system, and consistent with our national heritage.
Does anyone really believe that a nativity scene puts us on the verge of ushering in a theocracy? I think it's worth considering that those who oppose the display of Christmas symbols and traditions (and seek to banish them from public schools) are ultimately doing more harm than good to their cause by bringing this issue to the forefront of the cultural discourse. It's not just that it is making headlines on so many different occasions, but that the manner in which it is being done is so flagrant, and so obnoxious to the beliefs of so many, that the more that cities, towns, school districts, and airports in Seattle give in, the less opponents of public displays of Christmas can plausibly cry foul. How can anyone say we are "establishing religion" when so many concessions are made? And unless they can get help from groups like the Alliance Defense Fund, individuals are going to be less and less willing (and financially able) to stand up to the ACLU and others.
So when it comes to being offended and excluded, the shoe is now being worn on the other foot-yours and mine.
Saturday, July 15, 2006
Legal News: Victories for Traditional Marriage
In addition to the New York and Georgia court rulings, other courts have ruled favorably for legislation or constitutional amendments to ban same-sex "marriage." Here are the new rulings, and how they may affect the overall debate:
- The Eighth Circuit has upheld a Nebraska constitutional amendment banning same-sex marriage, on the grounds that it withstands Equal Protection rational basis review. In Citizens for Equal Protection v. Bruning, the federal appeals court applied the lower standard of scrutiny in considering a challenge to section 29 of the state's constitution. It provides that:
"Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."
The crux of the Eighth Circuit's reasoning was to find a "rational relation to a legitimate state interest" which the majority in Romer did not recognize. In Romer, the Supreme Court had cited a denial of equal access to the political process as its rationale for striking down a Colorado constitutional amendment prohibiting the granting of minority or protected status to homosexuals. Any denial to a group of the ability to convince other members of the public that it deserved protected statuts, quota systems, etc. warranted a "compelling" justification. However, in Bruning, the court demonstrated the fallacy in this argument by pointing to a number of other practices commonly outlawed in state constitutions, such as polygamy. No one (at least yet) is claiming that polygamists have a "right" to convince the public that their aberrant lifestyle deserves constitutional protection.
Based on this logic, the court then applied rational basis review to the amendment, upholding it on the grounds that the State of Nebraska has a legitimate state interest in taking the view that protecting traditional marriage, one man and one woman, is the optimal arrangement for raising children.
One thought from Bruning is that it raises serious questions about to what extent Romer can (or should) be applied in other Equal Protection cases. The Eighth Circuit drew its reasoning from Justice Scalia's dissent in that case, but with Justice Kennedy still on the court, along with the liberal wing (Justices Stevens, Ginsburg, Souter, and Breyer) the Romer votes are all still on the Court. What implications could arise if more laws are subjected to strict scrutiny, or even if the courts do not find a rational relation to a legitimate state interest, as was the case in Romer? "Interest groups" such as child rapists, pimps who wish to legally own their prostitutes, and even (as Justice Scalia pointed out in his Romer dissent) polygamists could attempt to strike down laws aimed at the public welfare and reinforcing morality and the natural law, with disastrous consequences.
Applying levels of scrutiny ultimately comes down to a value judgment. Either judges will control what is subject to the regulations of the democratic process, striking down any value judgments society wishes to make through legislation, or traditional values, expressed through laws protecting the nuclear family and criminalizing sexual deviance, will remain in place in the legal system, serving to keep society together. Bruning was a vote for the latter and against the former, and this precedent can only strengthen the cause of protecting traditional values. How it will be applied, however, remains to be seen.
Source: http://www.ca8.uscourts.gov/opndir/06/07/052604P.pdf
- The Tennessee Supreme Court has rejected a challenge to that state's ban on same-sex marriage, which means it will go on the ballot in November. In ACLU of Tennessee v. Darnell, the state's high court ruled that the ACLU did not have standing to bring the suit. This may have less impact on future jurisprudence than Bruning, which was decided on the merits, but it is still an important victory in passing a marriage amendment in the Volunteer State. It remains to be seen how the Tennessee court would rule on the merits, and I am unacquainted with Tennessee law, but we may find out if opponents bring another lawsuit to challenge the marriage amendment's appearing on the ballot in November.
Sources: http://www.chattanoogan.com/articles/article_89189.asp; http://www.tncourts.gov/OPINIONS/CURRENT/DarnellrcOPN.pdf
- The Eighth Circuit has upheld a Nebraska constitutional amendment banning same-sex marriage, on the grounds that it withstands Equal Protection rational basis review. In Citizens for Equal Protection v. Bruning, the federal appeals court applied the lower standard of scrutiny in considering a challenge to section 29 of the state's constitution. It provides that:
"Only marriage between a man and a woman shall be valid or recognized in Nebraska. The uniting of two persons of the same sex in a civil union, domestic partnership, or other similar same-sex relationship shall not be valid or recognized in Nebraska."
The crux of the Eighth Circuit's reasoning was to find a "rational relation to a legitimate state interest" which the majority in Romer did not recognize. In Romer, the Supreme Court had cited a denial of equal access to the political process as its rationale for striking down a Colorado constitutional amendment prohibiting the granting of minority or protected status to homosexuals. Any denial to a group of the ability to convince other members of the public that it deserved protected statuts, quota systems, etc. warranted a "compelling" justification. However, in Bruning, the court demonstrated the fallacy in this argument by pointing to a number of other practices commonly outlawed in state constitutions, such as polygamy. No one (at least yet) is claiming that polygamists have a "right" to convince the public that their aberrant lifestyle deserves constitutional protection.
Based on this logic, the court then applied rational basis review to the amendment, upholding it on the grounds that the State of Nebraska has a legitimate state interest in taking the view that protecting traditional marriage, one man and one woman, is the optimal arrangement for raising children.
One thought from Bruning is that it raises serious questions about to what extent Romer can (or should) be applied in other Equal Protection cases. The Eighth Circuit drew its reasoning from Justice Scalia's dissent in that case, but with Justice Kennedy still on the court, along with the liberal wing (Justices Stevens, Ginsburg, Souter, and Breyer) the Romer votes are all still on the Court. What implications could arise if more laws are subjected to strict scrutiny, or even if the courts do not find a rational relation to a legitimate state interest, as was the case in Romer? "Interest groups" such as child rapists, pimps who wish to legally own their prostitutes, and even (as Justice Scalia pointed out in his Romer dissent) polygamists could attempt to strike down laws aimed at the public welfare and reinforcing morality and the natural law, with disastrous consequences.
Applying levels of scrutiny ultimately comes down to a value judgment. Either judges will control what is subject to the regulations of the democratic process, striking down any value judgments society wishes to make through legislation, or traditional values, expressed through laws protecting the nuclear family and criminalizing sexual deviance, will remain in place in the legal system, serving to keep society together. Bruning was a vote for the latter and against the former, and this precedent can only strengthen the cause of protecting traditional values. How it will be applied, however, remains to be seen.
Source: http://www.ca8.uscourts.gov/opndir/06/07/052604P.pdf
- The Tennessee Supreme Court has rejected a challenge to that state's ban on same-sex marriage, which means it will go on the ballot in November. In ACLU of Tennessee v. Darnell, the state's high court ruled that the ACLU did not have standing to bring the suit. This may have less impact on future jurisprudence than Bruning, which was decided on the merits, but it is still an important victory in passing a marriage amendment in the Volunteer State. It remains to be seen how the Tennessee court would rule on the merits, and I am unacquainted with Tennessee law, but we may find out if opponents bring another lawsuit to challenge the marriage amendment's appearing on the ballot in November.
Sources: http://www.chattanoogan.com/articles/article_89189.asp; http://www.tncourts.gov/OPINIONS/CURRENT/DarnellrcOPN.pdf
Sunday, July 09, 2006
Boston Common
So it looks as though I am going to get to go to Boston after all. I wasn’t sure until a couple of days ago, because lodging and transportation is really hard to get up there because of all the tourism. But I leave Monday afternoon, and I am really excited about seeing the city and all the events which will transpire. The attorney I am working for is involved with the battle over same-sex marriage in Massachusetts, and I will be there to observe and do any work needed.
Next Wednesday, the Massachusetts legislature, known as the General Court, will convene in a joint session to consider a proposed constitutional amendment, under which marriage would be defined as one man and one woman. It has come before the legislature in the past, but supporters of same-sex marriage have used procedural tactics to block passage, and it is possible that they will do so again. The marriage amendment did not originate with the legislature, however-it was proposed directly by the people, under the initiative process outlined in article 48 of the state constitution.
Massachusetts is one of the few states, as far as I know, that requires a law proposed by initiative (voters circulating a petition) to be approved by the legislature before it goes on the ballot. Since it is a constitutional amendment being submitted, it needs an affirmative vote from 25% of the members of the General Court to get on the ballot during the next November general election. Since there are 160 members of the House and 40 members of the Senate, at least 50 members must vote for the amendment for the measure to go forward. The operative word here is “vote,” since one of the issues is whether the legislature will give the proposed amendment an up-or-down vote, or adjourn before a vote can be taken, as has been done in the past.
Right now, Massachusetts is the only state in the Union where same-sex marriage is legal. It was established by judicial fiat back in 2003, in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Vermont and Connecticut allow civil unions, which provide benefits to gay couples without issuing marriage licenses.
Another factor is the recent decision issued out of New York, victories for those of us who want to keep traditional marriage. A separate decision was issued in Georgia, upholding a ban on gay marriage under that state’s ballot initiative laws. But it is unclear how (or if) these cases will impact what happens in Boston next week.
The New York case, actually four cases grouped together, appears to be a model for how the courts should be approaching this subject. I am genuinely shocked to be saying that about the Empire State, given the apparent predominance of so-called “progressives” like Judith Kaye on the court there, but the ruling handed down this week appears to be an exception. In the opinion written by Judge Robert Smith, the New York Court of Appeals found that there is no state constitutional requirement to give homosexual couples the right to marry.
The case dealt with the assertion of forty-four same-sex couples that the state’s Domestic Relations Law, dating back to 1909, which governs marriage in the state of New York, grants the right to marry to two people of the same gender. Even though there is no gender-specific language specifying that a man must marry a woman, and vice versa, the court noted, “that was the universal understanding when Articles 2 and 3 [dealing with marriage] were adopted.” 86-89, p. 2.
It is refreshing to see an opinion particularly coming out of such an influential jurisdiction as New York, that rejects the notion that same-sex marriage is the end product of a long-standing “progression” of civil rights. The prevailing sense of “do-what-you-feel” radical individualism that has taken root in so many places will ultimately not only disrupt and weaken society, but degrade the very people whom it was meant to satisfy.
The Court of Appeal’s decision is also a shining example of judicial restraint, a concept that sorely needs to be revived in order to honor the will of the people on this issue. Judge Smith, writing for a 4-2 majority, reasoned that (quoting from foxnews.com): “we do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives.”
Any opposition to letting the people decide seems to be rooted in this fear that the desired outcome-a radical change in social policy-will not be forthcoming. But the basic idea behind representative government, and our Republic, is that the people have a say in their own individual and collective destinies. If this includes a belief that certain institutions, such as traditional marriage, are sacred and transcend some court order, then that point of view deserves respect.
It deserves its day in court.
Sources: http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf; http://www.foxnews.com/story/0,2933,202339,00.html
Next Wednesday, the Massachusetts legislature, known as the General Court, will convene in a joint session to consider a proposed constitutional amendment, under which marriage would be defined as one man and one woman. It has come before the legislature in the past, but supporters of same-sex marriage have used procedural tactics to block passage, and it is possible that they will do so again. The marriage amendment did not originate with the legislature, however-it was proposed directly by the people, under the initiative process outlined in article 48 of the state constitution.
Massachusetts is one of the few states, as far as I know, that requires a law proposed by initiative (voters circulating a petition) to be approved by the legislature before it goes on the ballot. Since it is a constitutional amendment being submitted, it needs an affirmative vote from 25% of the members of the General Court to get on the ballot during the next November general election. Since there are 160 members of the House and 40 members of the Senate, at least 50 members must vote for the amendment for the measure to go forward. The operative word here is “vote,” since one of the issues is whether the legislature will give the proposed amendment an up-or-down vote, or adjourn before a vote can be taken, as has been done in the past.
Right now, Massachusetts is the only state in the Union where same-sex marriage is legal. It was established by judicial fiat back in 2003, in Goodridge v. Department of Public Health, 798 N.E.2d 941 (Mass. 2003). Vermont and Connecticut allow civil unions, which provide benefits to gay couples without issuing marriage licenses.
Another factor is the recent decision issued out of New York, victories for those of us who want to keep traditional marriage. A separate decision was issued in Georgia, upholding a ban on gay marriage under that state’s ballot initiative laws. But it is unclear how (or if) these cases will impact what happens in Boston next week.
The New York case, actually four cases grouped together, appears to be a model for how the courts should be approaching this subject. I am genuinely shocked to be saying that about the Empire State, given the apparent predominance of so-called “progressives” like Judith Kaye on the court there, but the ruling handed down this week appears to be an exception. In the opinion written by Judge Robert Smith, the New York Court of Appeals found that there is no state constitutional requirement to give homosexual couples the right to marry.
The case dealt with the assertion of forty-four same-sex couples that the state’s Domestic Relations Law, dating back to 1909, which governs marriage in the state of New York, grants the right to marry to two people of the same gender. Even though there is no gender-specific language specifying that a man must marry a woman, and vice versa, the court noted, “that was the universal understanding when Articles 2 and 3 [dealing with marriage] were adopted.” 86-89, p. 2.
It is refreshing to see an opinion particularly coming out of such an influential jurisdiction as New York, that rejects the notion that same-sex marriage is the end product of a long-standing “progression” of civil rights. The prevailing sense of “do-what-you-feel” radical individualism that has taken root in so many places will ultimately not only disrupt and weaken society, but degrade the very people whom it was meant to satisfy.
The Court of Appeal’s decision is also a shining example of judicial restraint, a concept that sorely needs to be revived in order to honor the will of the people on this issue. Judge Smith, writing for a 4-2 majority, reasoned that (quoting from foxnews.com): “we do not predict what people will think generations from now, but we believe the present generation should have a chance to decide the issue through its elected representatives.”
Any opposition to letting the people decide seems to be rooted in this fear that the desired outcome-a radical change in social policy-will not be forthcoming. But the basic idea behind representative government, and our Republic, is that the people have a say in their own individual and collective destinies. If this includes a belief that certain institutions, such as traditional marriage, are sacred and transcend some court order, then that point of view deserves respect.
It deserves its day in court.
Sources: http://www.courts.state.ny.us/ctapps/decisions/jul06/86-89opn06.pdf; http://www.foxnews.com/story/0,2933,202339,00.html
Sunday, April 30, 2006
Legal News: the Bible and Georgia Public Schools
Georgia might be the first state to offer Bible classes in its public schools. Last week, Gov. Sonny Perdue signed a bill into law that allows Georgia public school districts to offer elective courses on the Bible. Some thoughts on this:
I haven't had the opportunity to read the legislation, but it sounds as though what the legislature and governor are trying to do is shore up local school districts in the state, some of whom already have Bible classes incorporated into the curriculum. The practical effect of the law will be, first and foremost, to have a uniform curriculum for all elective Bible courses in the state; the legislation gives the state Education Department until next February to draw up the curricular guidelines. Local school districts would then have the option of whether to offer the courses.
Two other reasons stand out for why the state legislature would pass legislation for Bible courses. One possibility is that they are trying to appeal to the conservative base of the Republican Party in an election year. The other is legal, and strategically sound. Getting the state involved in the Bible controversy will allow the state to use its legal resources to defend the practice once the inevitable challenge comes from the ACLU or Americans United for Separation of Church and State. Otherwise, the anti-religion groups would be free to attack local school districts piecemeal, leaving each of them unable to engage in a protracted legal battle or to fight an injunction.
Overall, it makes sense to get the state involved, because there are many legal and constitutional pitfalls with a Bible class, and they are easier to navigate when there is a single, statewide standard for what should be taught, context, etc.
Many people would object to any amount of Scripture being taught in the public schools, claiming that this violates the separation of church and state. But there are two things to keep in mind here. One, this is an elective course that local school districts have the option of offering to their students. Two, the law stipulates that the courses must be taught "in an objective and nondevotional manner with no attempt made to indoctrinate students." Source: http://www.foxnews.com/story/0,2933,192582,00.html
Critics might say such a goal is impossible. But the Bible has value not just to Christians, but in the context of a history or social studies class as well. As long as it is taught in this way, as a work of history, literature, and in the context of its influence on American law and government, a class on the Bible could have educational value for Georgia high school students. If there is enough demand for a Bible class, I would like to see opponents wait and see how the law is implemented before making up their minds.
I haven't had the opportunity to read the legislation, but it sounds as though what the legislature and governor are trying to do is shore up local school districts in the state, some of whom already have Bible classes incorporated into the curriculum. The practical effect of the law will be, first and foremost, to have a uniform curriculum for all elective Bible courses in the state; the legislation gives the state Education Department until next February to draw up the curricular guidelines. Local school districts would then have the option of whether to offer the courses.
Two other reasons stand out for why the state legislature would pass legislation for Bible courses. One possibility is that they are trying to appeal to the conservative base of the Republican Party in an election year. The other is legal, and strategically sound. Getting the state involved in the Bible controversy will allow the state to use its legal resources to defend the practice once the inevitable challenge comes from the ACLU or Americans United for Separation of Church and State. Otherwise, the anti-religion groups would be free to attack local school districts piecemeal, leaving each of them unable to engage in a protracted legal battle or to fight an injunction.
Overall, it makes sense to get the state involved, because there are many legal and constitutional pitfalls with a Bible class, and they are easier to navigate when there is a single, statewide standard for what should be taught, context, etc.
Many people would object to any amount of Scripture being taught in the public schools, claiming that this violates the separation of church and state. But there are two things to keep in mind here. One, this is an elective course that local school districts have the option of offering to their students. Two, the law stipulates that the courses must be taught "in an objective and nondevotional manner with no attempt made to indoctrinate students." Source: http://www.foxnews.com/story/0,2933,192582,00.html
Critics might say such a goal is impossible. But the Bible has value not just to Christians, but in the context of a history or social studies class as well. As long as it is taught in this way, as a work of history, literature, and in the context of its influence on American law and government, a class on the Bible could have educational value for Georgia high school students. If there is enough demand for a Bible class, I would like to see opponents wait and see how the law is implemented before making up their minds.
Tuesday, March 28, 2006
The Law and the War on Terror
Observations on two important cases in the news:
1) The government's case against 9/11 conspirator Zacarias Moussaoui got much stronger today. Under oath, he actually admitted that he was planning to fly a fifth plane into the White House as part of the September 11th terror plot. No wonder his lawyers didn't want him to testify. They must have known he would literally hang himself with his own rope.
Maybe he just doesn't realize what he did today. Or maybe he did it deliberately, since he knew he would get the death penalty and be a martyr for the terrorists. Or maybe he just doesn't care anymore and wants to die. In any event, I think the jury will be more than happy to help him along with that. Essentially, his confession today makes the prosecution's case on him being part of a conspiracy, of him knowing about the 9/11 plot ahead of time. He actually admitted that he had prior knowledge, and that he would have taken part in it had he not been captured.
Two observations about the trial...I think the civil libertarians and all the people who insist that these terrorists, or terror suspects, be tried in civilian courts are trying to have it both ways when they try to block people like Moussaoui from testifying on their own behalf. His lawyers did not want him to take the stand, yet the same people who would leap to defend him would also want to prevent him from taking the stand. It just doesn't work that way. You cannot insist on granting terror suspects who are not U.S. citizens constitutional protections, and then manipulate those constitutional protections to get an acquittal. The judge in this case was right to allow Moussaoui to testify. If you have a civilian trial (by the way, I think they should have military tribunals, but that's a whole other post), you have to allow the defendant to take the stand in his or her own defense, if they wish to do so.
Second, I just hope that his testimony won't be called into question by what he said before (he had said before he was to take part in another attack after 9/11, among other things). The defense might try this, but I don't think the jury will buy it. For one thing, they already know this is a terrorist we're dealing with, and the evidence of his culpability, including today's confession, is overwhelming. Also, his actual guilt is not at issue here-the jury's role is to decide whether he gets life in prison without parole, or the death penalty. As long as they are willing to impose it, the weight of the evidence should support aggravating, rather than mitigating, circumstances.
2) On a related note, the Supreme Court is set to hear oral arguments in the case of Hamdan v. Rumsfeld on Wednesday. This is the case involving Salim Ahmed Hamdan, who served as Osama bin Laden's personal driver and bodyguard. He was captured in Afghanistan four years ago, and has been held at Guantanamo Bay ever since. The Court has to confront a difficult issue here-does it affirm the D.C. Circuit's ruling that President Bush does not have the authority to create special military commissions for Guantanamo detainees, or does it reverse, presumably granting them access to civilian courts?
Here is the story on Fox News, which is my source for the information on this case: http://www.foxnews.com/story/0,2933,189268,00.html
Even if the Court reverses the D.C. Circuit, in order for Hamdan to have access to civilian courts to review his habeas petition, the Court would also have to rule that the Detainee Treatment Act, passed by Congress in December 2004, does not apply to petitions filed before the law came into effect. Herein lies the problem-there is no general consensus on where the law applies. Hamdan's side is going to argue for no retroactivity, and that petitions filed before the date are still to be considered. The government will have to lay out the case for retroactivity, under which case a military tribunal would handle Hamdan's case, not the federal courts.
The stakes here cannot be overstated. If the Court sides with the Bush administration, it will uphold the use of military tribunals for the suspects already at Guantanamo, and will be a strong precedent for using tribunals for any suspects that are captured in the future. This would allow the administration to conduct the war on terror with much more secrecy, as most anything that takes place in federal courts is public record. This is absolutely essential when dealing with individuals who would not hesitate to use chemical, biological, or nuclear weapons against our cities if given the chance.
But if the Court sides with Hamdan, it will open the courts up to a wave of habeas petitions from the detainees currently in military custody. It will make the war on terror exponentially more difficult for our military and intelligence services. Every al-Qaeda lowlife that is captured on foreign soil will start demanding a lawyer, demanding rights that belong to American citizens, and generally make it much harder for the government to gather intelligence that might lead to the capture of more of the enemy, or even stop a terrorist attack and save American lives.
The Court must not give our enemies this kind of power, to use our democratic system for their military and propaganda purposes. If the justices grant terrorists access to the federal courts, they will be acting in direct contradiction to the public policy of every conflict fought in the history of this country. There is a reason for this-it will be a Pandora's box of litigation, overly zealous civil libertarians, and paperwork our system was never meant to accomodate in a time of war and national peril.
I will try to elaborate more on my position on this in a future post, possibly when the ruling is handed down this summer. My prediction is a 4-4 tie, with the votes lining up along ideological lines (Alito, Scalia, Thomas, and Kennedy to affirm, and Ginsburg, Souter, Stevens, and Breyer to reverse, with Roberts having to recuse himself since he participated in the D.C. Circuit's decision). A tie would affirm the D.C. Circuit, but could call into question the ruling's precedential value. Because of this, I don't think Hamdan is going to be the last word on the issue.
1) The government's case against 9/11 conspirator Zacarias Moussaoui got much stronger today. Under oath, he actually admitted that he was planning to fly a fifth plane into the White House as part of the September 11th terror plot. No wonder his lawyers didn't want him to testify. They must have known he would literally hang himself with his own rope.
Maybe he just doesn't realize what he did today. Or maybe he did it deliberately, since he knew he would get the death penalty and be a martyr for the terrorists. Or maybe he just doesn't care anymore and wants to die. In any event, I think the jury will be more than happy to help him along with that. Essentially, his confession today makes the prosecution's case on him being part of a conspiracy, of him knowing about the 9/11 plot ahead of time. He actually admitted that he had prior knowledge, and that he would have taken part in it had he not been captured.
Two observations about the trial...I think the civil libertarians and all the people who insist that these terrorists, or terror suspects, be tried in civilian courts are trying to have it both ways when they try to block people like Moussaoui from testifying on their own behalf. His lawyers did not want him to take the stand, yet the same people who would leap to defend him would also want to prevent him from taking the stand. It just doesn't work that way. You cannot insist on granting terror suspects who are not U.S. citizens constitutional protections, and then manipulate those constitutional protections to get an acquittal. The judge in this case was right to allow Moussaoui to testify. If you have a civilian trial (by the way, I think they should have military tribunals, but that's a whole other post), you have to allow the defendant to take the stand in his or her own defense, if they wish to do so.
Second, I just hope that his testimony won't be called into question by what he said before (he had said before he was to take part in another attack after 9/11, among other things). The defense might try this, but I don't think the jury will buy it. For one thing, they already know this is a terrorist we're dealing with, and the evidence of his culpability, including today's confession, is overwhelming. Also, his actual guilt is not at issue here-the jury's role is to decide whether he gets life in prison without parole, or the death penalty. As long as they are willing to impose it, the weight of the evidence should support aggravating, rather than mitigating, circumstances.
2) On a related note, the Supreme Court is set to hear oral arguments in the case of Hamdan v. Rumsfeld on Wednesday. This is the case involving Salim Ahmed Hamdan, who served as Osama bin Laden's personal driver and bodyguard. He was captured in Afghanistan four years ago, and has been held at Guantanamo Bay ever since. The Court has to confront a difficult issue here-does it affirm the D.C. Circuit's ruling that President Bush does not have the authority to create special military commissions for Guantanamo detainees, or does it reverse, presumably granting them access to civilian courts?
Here is the story on Fox News, which is my source for the information on this case: http://www.foxnews.com/story/0,2933,189268,00.html
Even if the Court reverses the D.C. Circuit, in order for Hamdan to have access to civilian courts to review his habeas petition, the Court would also have to rule that the Detainee Treatment Act, passed by Congress in December 2004, does not apply to petitions filed before the law came into effect. Herein lies the problem-there is no general consensus on where the law applies. Hamdan's side is going to argue for no retroactivity, and that petitions filed before the date are still to be considered. The government will have to lay out the case for retroactivity, under which case a military tribunal would handle Hamdan's case, not the federal courts.
The stakes here cannot be overstated. If the Court sides with the Bush administration, it will uphold the use of military tribunals for the suspects already at Guantanamo, and will be a strong precedent for using tribunals for any suspects that are captured in the future. This would allow the administration to conduct the war on terror with much more secrecy, as most anything that takes place in federal courts is public record. This is absolutely essential when dealing with individuals who would not hesitate to use chemical, biological, or nuclear weapons against our cities if given the chance.
But if the Court sides with Hamdan, it will open the courts up to a wave of habeas petitions from the detainees currently in military custody. It will make the war on terror exponentially more difficult for our military and intelligence services. Every al-Qaeda lowlife that is captured on foreign soil will start demanding a lawyer, demanding rights that belong to American citizens, and generally make it much harder for the government to gather intelligence that might lead to the capture of more of the enemy, or even stop a terrorist attack and save American lives.
The Court must not give our enemies this kind of power, to use our democratic system for their military and propaganda purposes. If the justices grant terrorists access to the federal courts, they will be acting in direct contradiction to the public policy of every conflict fought in the history of this country. There is a reason for this-it will be a Pandora's box of litigation, overly zealous civil libertarians, and paperwork our system was never meant to accomodate in a time of war and national peril.
I will try to elaborate more on my position on this in a future post, possibly when the ruling is handed down this summer. My prediction is a 4-4 tie, with the votes lining up along ideological lines (Alito, Scalia, Thomas, and Kennedy to affirm, and Ginsburg, Souter, Stevens, and Breyer to reverse, with Roberts having to recuse himself since he participated in the D.C. Circuit's decision). A tie would affirm the D.C. Circuit, but could call into question the ruling's precedential value. Because of this, I don't think Hamdan is going to be the last word on the issue.
Wednesday, February 22, 2006
The Good, The Bad, and Justice Scalia
Observations on the Supreme Court:
1) Tonight I had a chance to catch part of a speech on C-SPAN. Normally, I avoid this channel like it's my job, but this was a speech by Supreme Court Justice Scalia, and it was really entertaining. I was really shocked by two things-Scalia's constant impatience with the crowd (interrupting, refusing to answer questions, etc.) and the rudeness of so many of the people who came to hear him speak. One student made some lame joke about Scalia going duck hunting with Vice President Cheney; another held on to the mic for several minutes, rambling about nothing before it was ripped away from him.
I just have two questions for anyone who acts like a 2-year-old at these events: how did you get invited, and how were you smart enough, and so uncouth, as to get into law school in the first place? I have to admit that it's funny to watch a kid who looks like Napoleon Dynamite get manhandled and thrown out into the hallway, but to treat any guest like that, particularly a Supreme Court justice, is idiotic and way out of line. Sometimes it worries me to think that these people are going to be my colleagues before long.
By the way....I'm a conservative and I tend to agree more with Scalia's point of view on a lot of issues, but I do think that he tends to invite confrontation with his rhetoric. Calling people who believe in a living Constitution "idiots" recently, even at a Federalist Society meeting, almost seems to egg these losers on.
2) The Court has decided to take up partial birth abortion again, in Gonzales v. Carhart. Just as a background, the Court ruled on partial birth abortion back in 2000, in Stenberg v. Carhart, striking down a similar ban for not providing an exception for the mother's health. There had been a ban on partial-birth abortion, and President Bush signed a national ban into law in 2003, but trial judges in New York, Nebraska, and California ruled it unconstitutional. Now the Court is ready to hear the case again, this time with Roberts and Alito in for Rehnquist and O'Connor.
I believe the Court is going to uphold the ban as constitutional. Justice O'Connor was the swing vote last time, and Justice Alito, her successor, is probably not going to rule the same way, if his opinion in Casey v. Planned Parenthood was any indication. Roberts is still a relative unknown, but I think his vote will be an even match for Rehnquist. If everyone else keeps the same vote, this ban is going to stick around in a 5-4 ruling.
My feeling is that pro-choicers are going to take the loss on this one. And I couldn't be more glad to get rid of partial-birth abortion. It's cruel, barbaric, and unnecessary, and there is something seriously wrong with our values when we allow late-term infanticide, but a rapist-killer in California doesn't get executed because he might feel as much pain as a booster shot.
3) Maybe I'm wrong, but is partial-birth abortion not the only issue where a "red herring" comes into the decision-making processes of these judges? Is it a red herring, or does the health of the mother really matter? And I don't mean that judges don't apply the law and legal reasoning, just that sometimes I think all this about "an exception for the mother's health" or "saving the mother's life" just ends up being a proxy for the real cultural divide. And I don't think anyone, not even the Supreme Court, can bring those two sides together right now.
1) Tonight I had a chance to catch part of a speech on C-SPAN. Normally, I avoid this channel like it's my job, but this was a speech by Supreme Court Justice Scalia, and it was really entertaining. I was really shocked by two things-Scalia's constant impatience with the crowd (interrupting, refusing to answer questions, etc.) and the rudeness of so many of the people who came to hear him speak. One student made some lame joke about Scalia going duck hunting with Vice President Cheney; another held on to the mic for several minutes, rambling about nothing before it was ripped away from him.
I just have two questions for anyone who acts like a 2-year-old at these events: how did you get invited, and how were you smart enough, and so uncouth, as to get into law school in the first place? I have to admit that it's funny to watch a kid who looks like Napoleon Dynamite get manhandled and thrown out into the hallway, but to treat any guest like that, particularly a Supreme Court justice, is idiotic and way out of line. Sometimes it worries me to think that these people are going to be my colleagues before long.
By the way....I'm a conservative and I tend to agree more with Scalia's point of view on a lot of issues, but I do think that he tends to invite confrontation with his rhetoric. Calling people who believe in a living Constitution "idiots" recently, even at a Federalist Society meeting, almost seems to egg these losers on.
2) The Court has decided to take up partial birth abortion again, in Gonzales v. Carhart. Just as a background, the Court ruled on partial birth abortion back in 2000, in Stenberg v. Carhart, striking down a similar ban for not providing an exception for the mother's health. There had been a ban on partial-birth abortion, and President Bush signed a national ban into law in 2003, but trial judges in New York, Nebraska, and California ruled it unconstitutional. Now the Court is ready to hear the case again, this time with Roberts and Alito in for Rehnquist and O'Connor.
I believe the Court is going to uphold the ban as constitutional. Justice O'Connor was the swing vote last time, and Justice Alito, her successor, is probably not going to rule the same way, if his opinion in Casey v. Planned Parenthood was any indication. Roberts is still a relative unknown, but I think his vote will be an even match for Rehnquist. If everyone else keeps the same vote, this ban is going to stick around in a 5-4 ruling.
My feeling is that pro-choicers are going to take the loss on this one. And I couldn't be more glad to get rid of partial-birth abortion. It's cruel, barbaric, and unnecessary, and there is something seriously wrong with our values when we allow late-term infanticide, but a rapist-killer in California doesn't get executed because he might feel as much pain as a booster shot.
3) Maybe I'm wrong, but is partial-birth abortion not the only issue where a "red herring" comes into the decision-making processes of these judges? Is it a red herring, or does the health of the mother really matter? And I don't mean that judges don't apply the law and legal reasoning, just that sometimes I think all this about "an exception for the mother's health" or "saving the mother's life" just ends up being a proxy for the real cultural divide. And I don't think anyone, not even the Supreme Court, can bring those two sides together right now.
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