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:: A constitutional law blog by Scalia/Thomas fan David M. Wagner, M.A., J.D., Research Fellow, National Legal Foundation, and Teacher, Veritas Preparatory Academy. Opinions expressed here are those of the author and do not reflect those of the NLF or Veritas. :: bloghome | E-mail me ::

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    :: Monday, November 24, 2003 ::
    We're now covering theft in my Criminal Law course. Any crim-law casebook, imho, should take an historical approach and include that old chestnut from 1473, The Carrier's Case.

    Here's my song about it:


    That Judge Bryan is really a crazy clown.
    When will he learn that there’s larceny goin’ down?
    Woad Runner, Woad Runner, where have you gone to sulk?
    If not intent, then we’ll get you for breaking bulk.

    Woad Runner
    The Sheriff is after you
    Woad Runner
    If it’s larceny you’re through!

    Woad Runner, Woad Runner, did he have possession? Yes.
    So then no larceny – no, take another guess!
    Woad Runner, Woad Runner never burgles anyone
    Just rummaging through stuff is his idea of having fun!

    Woad Runner
    The Sheriff is after you
    Woad Runner
    If it’s larceny you’re through!

    :: David M. Wagner 2:39 PM [+] ::
    :: Friday, November 21, 2003 ::
    Criminal Law students: please note that on Monday we pick up with the unit on theft crimes, starting at p. 1017. Also, we will meet all "three" days next week.

    :: David M. Wagner 9:16 PM [+] ::
    :: Thursday, November 20, 2003 ::
    To my Con Crim Pro students: Tomorrow (Friday 11/21) we're doing Atkins v. Va., last case in the book.

    :: David M. Wagner 4:43 PM [+] ::
    :: Wednesday, November 19, 2003 ::
    The satire-to-reality gap is down to about 48 hours

    I had no sooner noted (in the post immediately below) the point made by the lead dissent in Goodridge, about how the majority's reasoning would require marital status for single parents, than I found this.

    :: David M. Wagner 10:58 PM [+] ::
    Massachusetts same-sex marriage

    Here is Goodridge. Or if that doesn't work, go here and click on Opinions, then look for it.

    For all of history, the human race has been implementing a marriage policy that turns out, once the Massachusetts Supreme Judicial Court gets ahold of it, to lack so much as a rational basis. The things one learns. But then, Bostonians have always had the weary duty of serving as the moral vanguard for the rest of us. Or not.

    First observations:

    1. Lawrence is not much of a factor. The opinion is based on Massachusetts constitutional law. Meanwhile, fwiw, the only two courts that have considered the issue of whether Lawrence requires SSM proprio vigore -- in New Jersey and Arizona -- have held that it does not.

    2. A lot in Goodridge about benefits; precisely one reference to corresponding "obligations," and not a word, zip, bupkus, about what those obligations might be. (This is based on my first readthrough.) Hmm, just like the discussion at that Boston conference in this regard.

    3. Marital benefits help parents raise children; many gay couples raise children; so let's order the legislature to give all marital benefits to gay couples too. Lead dissenter: well gollllllleeee, single parents raise children too; why not order the legislature to give them "married" status, or to let them marry themselves? (For those who are tired, for now, of the polyamory issue.)

    Maggie Gallagher comments here.

    :: David M. Wagner 9:29 PM [+] ::
    :: Tuesday, November 18, 2003 ::
    Goodridge is out, as 'twere, and same-sex marriage is now deemed required by the Massachusetts Constitution. 4-3 decision, from what has to be the most liberal state court in the nation. Court holds back from requiring immediate issuance of marriage licenses to same-sex couples and instead gives legislature 180 to do so, thus simulating legislative cooperation. Comments to follow as more details emerge.

    :: David M. Wagner 10:34 AM [+] ::
    :: Monday, November 10, 2003 ::
    "Justice for Judges"

    For at least three days this week, the Senate majority is going to force the Democrats to filibuster in real life, not just on paper, if they want to insist on their position that views shared by a majority of Americans (e.g. that parents should be notified of their children's abortions) are "extreme" and "outside the mainstream," and that judges who allow legislatures to make such choices are unfit for judicial service.

    Commentary by Roger Pilon here. Click here for my earlier comment on filibustering.

    Should be fun.

    :: David M. Wagner 6:06 PM [+] ::
    Sixth Circuit declares Religious Land Use and Institutionalized Persons Act unconstitutional, disagreeing with five other federal appeals courts. AP story here.

    A case could be made (though I would disagree) that RLUIPA suffers from the same constitutional flaw as the Religious Freedom Restoration Act, which it to some extent replaced: that it is outside Congress's 14th Am. Sec. 5 power. (I never took the Commerce Clause rationale very seriously.) But the 6th Circuit seems to have gone for the weakest argument -- that it violates prong one of Lemon. (So does the Free Exercise Clause, come to that. See Justice Scalia's dissent in Texas Monthly v. Bullock.)

    Maybe this is the Court's best opportunity to overrule Lemon explicitly.

    :: David M. Wagner 4:39 PM [+] ::
    To my Criminal Law students -- updated page ranges for this week and next:

    Wed. Nov. 12 -- 793-819
    Fri. Nov. 14 -- 821-850

    Mon. Nov. 17 -- 850-871 (end unit on complicity at that point)
    Wed. Nov. 19 -- 893-914
    Fri. Nov. 21 -- 914-924

    :: David M. Wagner 4:36 PM [+] ::
    :: Sunday, November 02, 2003 ::
    Prof. Peter Augustine Lawler on the Man's ISI speech

    :: David M. Wagner 6:30 PM [+] ::
    New England Law Review conference on same-sex marriage

    OK, a lot of you have been kind enough to ask, so here’s what happened at that conference in Boston.

    The title was: “Same-Sex Marriage: Can Anyone Show Just Cause Why These Two Should Not Be Lawfully Joined Together?” The sponsor was the law review of the New England School of Law, a school that, like Suffolk Law School, is in the heart of downtown Boston.

    Among the editors who organized the conference, there was a desire that both sides should be heard. This was particulary true of the indefatigable (and opposite-sex-married) Flavia da Silva-Benson, a Brazilian-American student and New England Law Review board member. This breadth of viewpoint was, however, rather less than the title of the conference would suggest. Out of seventeen presenters, three were opposed to SSM. That would be myself, my Regent colleague Prof. Lynne Marie Kohm, and Daniel Avila, an attorney on the staff of the Massachusetts Catholic Conference.

    I’ll leave to one side the presentations that were mere cheerleading for SSM. Quite a few of those. (One Canadian gay leader referred to the Catholic Church as one of “the usual suspects.” Given the secret-police overtones of that famous Casablanca quip, I’m more glad than ever that I don’t live in Canada.)

    More interesting, among the morning panels, were the presentations by European law profs who have recently been active in various forms of SSM/civil union legislation in Western Europe. Overall, I sense that Europeans are less passionate about this, on both sides. It seems France, the Netherlands, the Nordic countries have all created some form of civil union for same-sex couples; some benefits traditionally associated with marriage go with these, others are still reserved for marriage. Good old European urbanity: not much principle, but not much venom-spewing either.

    Then came the religious leaders, both of whom supported SSM. It seems hard to believe that no man or woman of the cloth opposed to SSM was willing to speak; more likely it was assumed that clergymen are opposed, so the only clerical phenomenon needing to be showcased was that of the supporters. Rabbi Devon Lerner stressed how there are 450 – 450! – clergypersons in her coalition. On Scripture, she made these points: (1) we should interpret Leviticus 18 et al. as being about temple prostitution, not gay sex (here I couldn’t help wondering if perhaps she was confusing Leviticus with my former prof John Boswell’s fanciful notions about Romans 1); (2) we should interpret Scripture in general as being written a long time ago and not all that relevant to our times. (I wondered how the latter could be called “interpretation.” Seems to me, if you want to argue for dismissing Scripture, go right ahead, but don’t claim that in doing so you’re actually “interpreting” it.)

    Then Mr. Avila made the point that it’s not enough to guarantee that objecting churches will never be required to “bless” same-sex unions: religious liberty will be impinged on in other ways, e.g. religious businesses forced to provide benefits for anyone that civil law regards as as “spouse.” A questioner raised a point that I could willingly have raised myself: if Catholic Church agencies already employ, and give spousal benefits to, persons who are divorced and remarried without an annulment (and thus are married to their present partners in the eyes of the state but are adulterers in the eyes of the Church), what’s the biggie about doing the same with same-sex couples? The answer is probably that the Church should avoid any action that gives scandal by treating non-marriages as marriages, but I guess it’s easier for me than for Mr. Avila to say so.

    The luncheon address was an embarrassingly short speech by E.J. Graff, a lady who has authored a book called What Is Marriage For: The Strange Social History of Our Most Intimate Institution. From the program, it appears that her qualifications for explaining this are that she has published articles in numerous leftwing opinion magazines. Her take is that because marriage has played different societal roles at different periods of history (true), it therefore has no essence and can be whatever you want it to be (beg to differ).

    And what did most of us at the Boston Radisson’s 6th floor conference room that day want it to be? The answer was very clear: benefits. About 1400 of them. One speaker managed at one point to shoehorn the word “obligations” into the discourse of rights and benefits, but no particular obligation was specified. This is all about benefits, as far as this day’s SSM advocates were concerned. There’s a big bag of them out there, marked “marriage.” We want them.

    Are certain reasonable benefits (such as the right to be with a loved one in the hospital, or the right to designate one’s partner as executor of one’s estate) available without legal marriage? SSM advocates are constrained to say no – yet at one of the afternoon panels, Scott M. Donohue, Esq., a practicing attorney who clearly supports SSM somewhat embarrassed his allies by detailing the numerous ways in which, with a smart lawyer like himself, same-sex couples can in fact secure many of the legal benefits of marriage.

    The rest of Mr. Donohue’s panel consisted of gay people raising children – and my colleague, Prof. Kohm. In other words, Lynne was assigned to give an academic discussion of the downside of gay adoption, while the gay parents got to tell their stories and show pictures of their kids. If that’s not an ambush, it’ll do until an ambush comes along.

    “Studies.” SSM supporters cited them all morning, without challenge. Prof. Kohm cited one too – and in the Q&A, someone wanted to know every detail of its methodology and its funding. (Lynne was ready with the best answer: “It’s all in footnote 173.”)

    I haven’t mentioned yet that Lynne already had a speaking engagement on her calendar for 8 pm in Florida the same evening. She squeezed in the afternoon presentation in Boston, facing a 4 pm flight out of Logan. The moderator apologized in advance for Lynne’s need to depart right after her talk, and she did (as I have noted) leave time for Q&A focused solely on herself. That did not stop one of the gay parents from accusing her of “hit and run.”

    And so we come to my panel, on SSM and the Constitution. This one was graced by Prof. Mark Strasser, a gay scholar who is consistently knowledgeable and collegial. Ideological screeds and rehashing of oral arguments aren’t his style: careful analysis of applicable precedent is, and he did it again.

    As for me, I talked about how Lawrence need not be read as requiring SSM. Mark and I both derived mirth from the “Scalia role-reversal,” whereby gay advocates are urging the interpretation of Lawrence that Scalia offered in dissent, while Ninomaniacs are disagreeing, ever so respectfully, with our Main Man on this issue. I also discussed Loving v. Virginia, which in my view simply removed a rule, unrelated to marriage and unconstitutional because it classified by race, that Virginia had layered onto marriage.

    Then I expatiated a bit on the role of marriage in harnessing destructive male sexuality to the requirements of female patterns, which include helping in childrearing. I cited a Harvard-educated (but otherwise reliable!) inner-city minister in Boston – Rev. Dr. Ray Hammond, MD – to the effect that tying men to the children they father is a vital need served by marriage. This need is going unmet, and this causes grave problems among people who don’t look like the lily-white asembly at the Boston Radisson.

    Then I acknowledged that marriage has changed a lot in the “developed” world in the past fifty years. As soon as neither procreation nor permanence nor fidelity are seen by most straights as integral to marriage, then, from a gay point of view, what’s not to like? I differed from most people at the conference only in thinking that these changes are (a) bad, and (b) to some extent reversible.

    Mine was the last speech on the agenda. I got far fewer questions, and less hostile ones, than I had anticipated. Of course, I was the last obstacle between the audience and dinner. Come to that, I was also the last obstacle between myself and a vigorous walk through the Boston Common, around Beacon Hill and the State House, and back to the hotel by way of Tremont St., all the while wearing a Red Sox cap that I had borrowed for the occasion.

    I was still wearing the Red Sox cap when I went through airport security the next morning. After I had cleared, one of the TSA guys asked:

    “So, you da next manager?”

    “Grady Little is not long for this town?” I asked.

    “Shorta shelf-life dan milk, dey’re sayin’!”

    So it turned out to be, and so I said goodbye to Beantown, until we meet again.

    :: David M. Wagner 12:04 AM [+] ::

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