Ordinary people

I know this is just a silly little blog with cartoon drawings in the header. I know I talk about my dog and shoes and sports too much to be taken too seriously. I know it's too much to hope that anyone associated with the United States Supreme Court actually reads this.

But for this one post, I really hope they do. Because the justices who make the law all the rest of us live with need to see this video.

In both 4th and 5th Amendment jurisprudence, the concept of what the ordinary person would feel free to do factors in. Would the ordinary person feel free to disregard a police officer? To walk away? To invoke the right to silence in the face of police questioning?

In case after case, I have been frustrated by how willing SCOTUS and therefore lower courts are to ascribe to ordinary citizens rather extraordinary abilities to resist the power of a person in a police uniform, complete with badge, handcuffs, and handgun at the ready. According to a pile of case law, ordinary people in the US feel free to walk away from uniformed officers in all sorts of circumstances. What I know from this is that the justices of the United States Supreme Court don't often find themselves getting pulled over by cops or being stopped on the sidewalk by cops or opening their doors to cops or being asked questions in interrogation rooms by cops.

The judges and justices who makes these decisions should be confronted with the reality of what it's like when ordinary people are confronted by police. In this video, a young woman was driving home to her husband or boyfriend and their 2 week old child. She was pulled over for a broken headlight. Hardly a big, bad infraction. Usually the sort of thing a driver gets a warning for that can be wiped away if the driver shows up at the police station within the next 2 or 3 days with a fixed light. But ordinary people get very nervous when they're pulled over. Heck, this nervous person breaks into a cold sweat when she gets a phone call from a number she doesn't recognize because I always jump to the assumption I'm in trouble in some way. (I'm not, and I'm not sure what "trouble" I think I would be in anyway; it's a weird pathology I seriously need to get over.) But the point is nervousness isn't an unusual reaction to being confronted by uncertain situations.

This woman's nervousness seemed out of the norm to the police officer who pulled her over. So he assumed she was on drugs. To assess his assumption, he instructed her to lift up her shirt, pull her bra away from her body, and shake out the bra. While this was a big step up from conducting an invasive cavity search on the side of a highway, it's still pretty egregious. She wasn't exposed and she wasn't subjected to any physical search, but it was demeaning all the same. It's still something the officer had no business demanding the woman do. And it's still something the woman felt utterly powerless to resist. So now there is a dash cam video of this woman pulling her shirt up and shaking out her bra on the side of the road.

I hope the judges and justices who rule on criminal cases see this video. I hope they start to rule with an honest perspective on the authority uniformed police officers wield. Ordinary people don't feel free to walk away when a uniformed police officer is talking to them. Ordinary people don't feel free to disregard even obviously obnoxious commands by uniformed police officers. Ordinary people know that uniformed police officers have guns and handcuffs and are free to use them. Ordinary people don't want to be arrested or shot. So ordinary people comply. The fact that this very freaked out, very nervous, very ordinary young woman complied, though, does not make what happened to her a consent search. We need the judges who rule on these kinds of cases to understand that.

500

500 people is a lot of people. It's about 10 NFL teams. More people than get to be starters in the NCAA tourney. About twice as many people as I graduated from law school with. More people than my high school graduating class. More people than my college graduating class. My entire state agency doesn't employ close to that many people. Even the biggest airliners we fly on stop short of holding 500 passengers. 500 people is a lot of people.

As of 7:37 pm ET, 500 people is the number of people the state of Texas has executed since 1976.

It is a staggering number. Appalling. Horrifying. The state of Texas has intentionally ended the life of 500 living, breathing human beings. And that's only since 1976. You know they executed a lot of people before 1972 as well.

What are they getting for it? It certainly doesn't appear that they're running out of candidates for their death chamber, so I doubt they're making a big dent in their crime numbers. But they just keep killing people. After a while, it feels like they're just killing people to kill people.

If it ever seems like I pick on Texas too much, like I'm too harsh on that entire state, too easy to find fault with it, this is why. They just kill too damn many people.

Marketing 101

I have the pleasure of living near one of those churches with the signs out front. The messages are very occasionally advertising actual church business, like Vacation Bible School or special holiday services. But most often, they're that kind of punny or pithy message seemingly aimed at non-believers, trying to get us to come to the church. My dear friend and I love to drive by and read those messages, often sending those messages to each other if they really catch our fancy (meaning our funny bone).

Today's message:

"If you're dead and it's still hot, it's too late."

I kinda want to go find whoever is in charge of this sign and offer them some free marketing advice. I feel like I'm at least part of their target audience with this sign. So there's a part of me that wants to let them know how woefully off-the-mark they are if they really want to try to convince people to come to Jesus. Threats of burning in hell pretty much stop working to convert people once they get past age 10 or so. So telling people that they should come to worship your god because if you don't, said god will condemn you to an eternity of hell is not effective marketing. Maybe just focus on the love part, not the "or else" part.

But if I gave them advice, they might come up with better signs and then I'd lose my weekly chuckle.

One quick(ish) point on DOMA

There's one misconception that a lot of people are expressing about today's Defense of Marriage Act (DOMA) ruling, so I just want to set it straight briefly. Some are saying, "Huzzah! DOMA is dead!" Some are ruefully shaking their heads saying, "No, Section II is still barring full faith and credit for same-sex marriages." Section II is the provision that says states can refuse to recognize same-sex marriages lawfully entered into in other states.

The Huzzahers have the right idea. The rueful head-shakers shouldn't have expected a Section II win as that issue wasn't involved in the case at all. Invalidating one section of a statute almost never results in the entire large law being invalidated. But more importantly, Section II isn't the real reason why those states that ban same-sex marriages are allowed to refuse to recognize such marriages from other states. Section II was just a codification of existing interpretation of the Full Faith and Credit clause of the US Constitution.

This is kind of arcane legal stuff that maybe only hard core legal geeks have any idea about. Full Faith and Credit most traditionally applies to court judgments. If I have a money judgment against you in Kansas, you can't move to Missouri and think then you'll get out of paying it because Missouri will enforce that judgment for Kansas. That kind of thing. It has long been the law, though, that a state can't be forced to do things by other states that would violate that state's public policy. A lot of it comes down to the difference between court judgments and legislative enactments. Then there's the difference between recognition and enforcement. (As in a state that doesn't allow same-sex couples to adopt has to recognize the legal rights of parents who lawfully adopted children in a different state, but that state doesn't have to issue a birth certificate that would violate its own laws.) It's all very detailed and complex and I'm not well-enough versed in it to explain it very well.

The only thing any lay person really needs to know about all of this is that even without DOMA, states are free under current full faith and credit jurisprudence to refuse to recognize marriages performed in other states that are "repugnant" to their own state laws. At least there isn't any Supreme Court case that says they aren't free to do so.

In fact, I researched this recently as it relates to first cousin marriage. There are 3 states in this country that do not recognize any marriages between first cousins, regardless of where those marriages were performed. Just as an example. So same-sex marriages entered into in Iowa aren't the only marriages Arizona refuses to recognize. My cousin who lawfully married his cousin in a New England state had better not move to Arizona.

The point is that this scenario changing does not in any way hinge on Section II of DOMA. As it stands now, states are free to decide they will recognize same-sex marriages from other states. And as it stands now, the law surrounding full faith and credit does not require states to recognize such marriages if they don't want to. To change this, we need a broader discussion on full faith and credit and we need it to get up to the Supreme Court. DOMA doesn't even have to be involved for the full faith and credit issue to be challenged.

Or we could just get with the 21st century and get same-sex marriage legalized and recognized in every state already. That would take care of it, too.

Well that was interesting, Scalia

Everyone today is talking about the fact that both the federal benefits/definition of marriage provision of DOMA is unconstitutional and that Proposition 8 in California is dead.

From the perspective of an appellate lawyer who read the transcripts of the argument, the DOMA decision isn't at all a surprise. The writing was on the wall on that one at argument. The only justice we were iffy about was Justice Kennedy, but his questions/comments at argument assured me, anyway, that his vote was going to be on the right side. It's a somewhat straightforward decision, though I'm not convinced it had to stray so far into federalism, but I'll concede that's not an area of the law I'm an expert in.

Justice Scalia's dissent in the DOMA case was predictable, too. If you've read his previous dissents on similar issues, notably the 2003 sodomy case Lawrence v. Texas, you should have expected he would issue a rollicking dissent. He didn't disappoint, with a dissent as long as the opinion of the court. My sense of Scalia is that the less sound, rational basis he has for his ruling, the more he blusters. He blustered an awful lot in Lawrence v. Texas and he blustered a lot today. He didn't just bluster about one thing, either. First, he blustered about the Court even ruling on the case because there's no jurisdiction. There was some bluster aimed at the Obama administration for refusing to challenge the original district court ruling that was in the plaintiff, Edie Windsor's, favor. The best bluster, of course, was on the topic of same-sex marriage itself. There's a whole paragraph about overcooked loaves and bad recipes.

There's a really disingenuous argument that this will bring chaos for those same-sex couples who marry in one state and then move to a state that don't recognize such marriages. A) That chaos exists whichever way the DOMA federal benefits provision goes. You're marriage is valid in one state, not in the other, and the feds will go with one state or the other. B) There are other marriages already in existence, marriages between one man and one woman, that are recognized in one state and not in another. First cousin marriages are not ever recognized in three states. (No first cousin marriage jokes: I have a cousin who married another cousin, and they are both bright, educated people.) So some marriages are already in that limbo and the federal government does not collapse under the weight of the chaos. He's all sound and fury about how outrageous it is for the majority to suggest it is only animus against gays and lesbians that led to DOMA (as if he wasn't alive when DOMA was being debated and passed).

So what we (didn't really) learn (because we already knew) from this dissent is that Scalia doesn't like the gays and doesn't like anyone suggesting it's just animus on his part that he doesn't like them. He just gets to morally disapprove of them and so does the law and that's that.

All of which makes what happened in the Prop 8 case so very, very interesting. Because the effect of the Prop 8 ruling is that Prop 8 is unconstitutional. But SCOTUS didn't say that. The federal district court judge, in a ruling I blogged about here, found it unconstitutional. Then what happened is that the relevant state authorities declined to appeal that decision. (Unsurprising as the trial was thorough and roundly recognized as offering no legitimate basis whatsoever for Prop 8, establishing it was a pretty indefensible law.) So then private citizens who had been involved in passing Prop 8 stepped in and pursued the appeal. SCOTUS today decided that those people did not have standing as required by Article III of the Constitution, so the court couldn't rule on the merits of their petition. Neither could the Ninth Circuit. So Judge Walker's ruling is the final say on Prop 8. Prop 8 is dead. Same-sex marriage is good to go in California

And Scalia was in the majority! So Scalia who hates the gays and thinks that's a perfectly valid justification for anti-gay laws actually took part in paving the way for same-sex couples in the most populous state in the nation to marry at will. One thing I know about Scalia is that he can always get to the result he wants, so was this the only way he could get enough votes to avoid the result he really, really didn't want? Which makes me desperate to know what on earth the negotiations in the justices's chambers were like. What discussions were going on? What possible rulings were on the table? Was there some game of chicken between Ginsburg and Scalia? Was she saying give us Prop 8 or we'll go all the way on marriage equality? Were Breyer and Kagan reluctant to go that far and thus happy to go along with this punt on Prop 8 as it gets to the right result on that particular law?

The negotiations that go on behind closed doors at the Supreme Court to reach coalitions in particular cases can be the stuff of legends. The most famous example is what was done to achieve a 9-0 ruling in Brown v. Board of Education. Chief Justice Earl Warren recognized the significance of reaching a unanimous opinion and worked carefully to make sure he got one. Then there was the famous switch in time that saved 9. There doesn't seem to be too much of that kind of stuff taking place in the modern court. (Justice Roberts's switch on the Afffordable Care Act might be remembered.) They don't seem to do much to find areas of consensus; they just issue a series of 5-4 decisions.

So when we get an odd vote split like this one (5-4 though it is, it's an odd combination of justices on each side), it piques my curiosity on how exactly they got there. And what other possible decisions could have been reached. Was there a possibility of not getting a 5 vote majority if they didn't go with the Article III argument?

Justice Kennedy was in the minority, the group who would have moved on to the merits of the case, along with Sotomayor, Alito, and Thomas. Here's my theory. I've long thought Judge Walker's long, well-reasoned decision on the Prop 8 federal trial was written directly to Justice Kennedy. I think it was a thorough integration of Kennedy's rulings leading to the inevitable conclusion that same-sex marriage bans are unconstitutional. I am not the only court observer who saw it that way. I think Kennedy took that bait. I think he was itching to write a majority opinion granting marriage equality across the land. I think Sotomayor was ready to go with him. I suspect that some combination of Ginsburg (though I suspect not so much her), Breyer, and Kagan were a little more reluctant to go that far, so they were ok with the Article III out. But if Scalia had refused to go along with it, would those three have joined up with Kennedy and Sotomayor to give marriage equality proponents the decision they wanted?

Did Scalia just accept same-sex marriage in California to avoid it nationwide? I hope we get the story someday.

Chaos, thy name is the Texas Senate

You know how when you go to weddings that involve people you aren't all that close to, you secretly kind of think it would be kinda fun to see a wedding that went all south? Someone saying, "I object!" An ex running down the aisle at the last minute? No? Just me?

Well, ok, but surely you've seen the news coverage of some giant brawl in a foreign parliament (it's always parliaments) and thought what fun it would be to watch someone punch Paul Ryan in the face? Ok, not just me.

We kind of got something pretty close to that in Texas tonight (last night now). The Texas Senate had until midnight to vote on a wide-ranging (some, like me, might say draconian) anti-abortion bill that had already passed the House and would surely be signed by the Governor. So the last hope was a filibuster to kill debate. That filibuster had to last until midnight. Wendy Davis did her best, but the guy in charge of the Senate was pretty clearly going to kill her filibuster and get the bill to a vote tonight come hell or high water. (He'd said as much.)

It was all a fairly moot point, too, as the Governor could easily just call another special session which would be safe from a filibuster from a time perspective. The bill clearly has the votes in both houses, so why not just let Davis have her filibuster and move on? But, no. There were shenanigans. Parliamentary inquiries to eat up time. Claims that Davis broke the rules, all of which were upheld (wrongly in my view). The crowd (the vast majority of them were there to support Davis in the filibuster) erupted. More parliamentary inquiries. Some motions. A second attempt at filibustering that was also killed.

The best moment of the night was another female Democratic Senator, Leticia Van De Putte, making the most epically awesome parliamentary inquiry ever, "At what point must a female senator raise her hand or her voice to be recognized over her male colleagues?" (The chair had declined to recognize her for a motion, turning to a male Republican instead.)

Then came the crowd filibuster, the chaos, the inability of the Senate leader to conduct a roll call vote because no one could hear. Now there are Republican claims that a vote on the abortion bill was taken and it passed. Democrats are saying it wasn't taken until after midnight so it doesn't count. Chaos and disorder have taken over.

What started out as a rare, fun, and beautiful thing -- one person standing up for something she believes in, following a time-honored tradition that says it's her right to do so -- has turned into the most embarrassing spectacle in politics that I've ever witnessed. It got as close to the silly brawls I've seen in foreign parliaments as anything I've seen in American politics. I didn't actually see a punch, but I guess it'll do.

Still, it's a pretty sad statement on how far our political civility has devolved that we can't even agree on whether a bill has passed. It was an engrossing evening from my perspective. I do enjoy political theater. But maybe it would be better to live in a less politically dysfunctional atmosphere where order and civility actually reigned. As of an hour and a half after the midnight deadline, the Texas Senate still isn't quite sure whether the vote counts or whether they're adjourned. That's not a banner night for American government.

Atheists have beliefs, too.

I am an atheist. If you've been around here long enough, this isn't news to you. But it's probably also not news to you that one of the surest ways to offend me is to suggest that I don't believe in anything. One need not believe in a higher power, an all-mighty being, to have very sincere and deeply-held beliefs about the world. I've been asked (by someone I thought was pretty enlightened and educated) why I'm so opposed to the death penalty if I don't believe in any god. I was a little floored by that question because I didn't know that anyone really equated being an atheist with seeing life as one big hedonistic free-for-all where anything goes.

I believe in a lot of things. I have deeply-held beliefs about what is right and wrong, about how to treat my fellow humans, and how to treat dogs (especially red-headed cocker spaniels). I believe killing people is wrong, so I oppose the death penalty. And for myself, I oppose ever, ever handling a gun. I am that person who would be tortured for the rest of her life if I ever actually had to act in self-defense such that another person died. You can think that's silly, but that's how strongly I believe in not harming another human being.

Somehow, a few years ago I wound up researching a topic for a case that led me to the caselaw about conscientious objectors during the Vietnam War. (Stay with me.) I think I was researching the legality of removing prospective jurors from capital juries based on their religious opposition to the death penalty. I think I was looking for research on the idea that one's deeply held moral and philosophical views don't have to be tied to a particular religion to receive some respect under the law. Because, of course, my opposition to the death penalty isn't tied to any particular religion, but it is based on deeply-held moral and philosophical views that fill the same place in me that religious beliefs fill in those who subscribe to a religion.

This research didn't lead to any novel issues for any of my cases, but it did teach me that for US Supreme Court purposes, I was right: that the deeply-held moral and philosophical views of non-believers are respected by the law the same as the deeply-held moral and philosophical views of those who subscribe to particular religions. During the Vietnam War, many young men who were drafted objected, arguing that they were conscientious objectors whose deeply-held moral views did not permit them to take up arms. Young men who had life-long connections to the Quaker Church were being allowed to get out of combat roles without penalty. Young men who were just non-religious pacifists, though, were being imprisoned or otherwise penalized for their objecting. They were being denied protection as conscientious objectors. The US Supreme Court put an end to that. In a line of cases (the most cited of which is U.S. v. Welsh), SCOTUS said that the deeply-held moral and religious views of non-believers were also worthy of respect, saying in essence we can't let people whose sincere moral beliefs lead them to oppose taking up arms get out of combat roles if they can identify a particular religious text they follow but screw those whose sincere moral beliefs stem from something other than a religious text. The bottom line: atheists, too, can qualify as conscientious objectors. Woot!

(I never really worried about that what with not being subject to the draft and being female, but if pressed, I do think I would be able to find enough people who've known me long enough to say, "She really, really couldn't ever raise a weapon against another human being." I hope.)

So it was with this in mind that I read this story about an atheist applying for US citizenship. Margaret Doughty has lived in the United States for over 30 years. The application for naturalization requires applicants to pledge to bear arms in defense of the nation. (Those of us who are born here are never asked to pledge that, which is good for me. I defend my nation's founding principles every day, but not with a gun.) Doughty wrote a thoughtful answer that while the question didn't seem relevant to someone her age (64) and sex, she couldn't lie and had to say she wouldn't be able to hold bear arms. The response? The United States Citizenship and Immigration Services told her she needed to provide a letter from a church! That she belonged to! Ok, not a church: a nonviolent religious organization. She needed to prove that her conscientious objector status was due to religious beliefs.

Which means that after 40 years after Welsh (a 1970 case), officials of the US government are still instinctively discriminating against atheists, implicitly reacting from a view that deeply-held moral beliefs must be tied to a particular religion to be worthy of respect. Oy.

The good news is that the Humanist Legal Center took up Doughty's cause and wrote a sternly-worded letter on her behalf. (I kinda wish my area of law involved more sternly-worded letters because I would enjoy writing them.) In response, the pinhead bureaucrats who insisted she provide a religious affiliation to have her moral objections to war be respected backed down. Doughty's application for citizenship was approved today. So I extend to her the heartiest godless Huzzah I have.

And I would encourage those bureaucratic pinheads to remember in the future that atheists have morals and philosophical beliefs, too. Ours are as deeply-held and as worthy of respect as those of any religious persons. Oh, and would it kill you to know the law as it relates to your job??