NINOMANIA

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:: Wednesday, February 25, 2004 ::

This honks.

More to come. For now, just this: the Court says the anyone-but-ministers program in this case (Locke v. Davey) differs from the anti-"ritual"-chicken-slaughter statute in Lukumi because it was not punitive. But that is not what mattered in Lukumi: what mattered was that a statute on its face singled out religiously-motivated conduct for disfavored treatment, as does the gerrymandered scholarship program here.

More tantrums (tantra?) as I study the case further. (A "designated public tantrum," surely.)

:: David M. Wagner 6:03 PM [+] ::
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:: Tuesday, February 24, 2004 ::

Olympic Airways v. Husain: Thomas-Scalia split

...on an issue of treaty interpretation. Scalia wants to know why the Court (per Thomas) is eager to look to the law of "other" (i.e. western European) nations to find out whether our Constitution allows sodomy laws or execution of the mentally retarded, yet does not care that its interpretation of a particular treaty is in conflict with that of most of the other signatory nations -- and this when there is a canon to the effect that treaty interpretations by other signatory nations are persuasive authority, while there is no canon to the effect that other nations' municipal law means diddly as far our Constitution is concerned.

So do I. Obviously.

:: David M. Wagner 2:53 PM [+] ::
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Bush endorses marriage amendment

Text of his statement here, via Jurist.

Comments on particular passages:

After more than two centuries of American jurisprudence and millennia of human experience, a few judges and local authorities are presuming to change the most fundamental institution of civilization.

Well said. The equation old=good is not valid, but that mistake is not our legal system's problem right now, at least not where neo-substantive due proces is concerned. Quite the opposite. The systematic hermeneutic-of-suspicion against tradition is a cheap substitute for thought in both Lawrence and Goodridge.

Yet there is no assurance that the Defense of Marriage Act will not itself be struck down by activist courts. In that event, every state would be forced to recognize any relationship that judges in Boston or officials in San Francisco choose to call a marriage.

Shouldn't concede that this would be the effect of the Full Faith and Credit Clause in absence of DOMA; that's not settled. But yes, the amendment is necessary to bring certainty to this area.

And what's up with the rhetoric on the other side about "tampering" with the Constitution? Amending the Constitution isn't "tampering" -- it's a procedure set forth explicitly in Article V because the Framers understood it might sometimes be necessary. Did the 39th Congress "tamper with the Constitution"?

You want "tampering"? How about judicial opinions that read constitutional text in ways that would have been considered "at best facetious" by the Framers -- and pretty much admit this is what they are doing, claiming authority to do it in the notion that "later generations can see that laws once thought necessary and proper in fact serve only to oppress" -- so we'll just decree the necessary adjustments without bothering with the Article V process, OK?

So who's talking about "tampering with the Constitution"? Time-serving politicians, from both parties, who want to keep safe by taking a verbal stand against same-sex marriage without actually doing anything to prevent it.

:: David M. Wagner 2:17 PM [+] ::
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Time I tried one of these "Quizillas" that are all over the blogosphere:

YOU ARE RULE 11!

You were designed to make sure that attorneys in
federal cases make reasonable inquiries into
fact or law before submitting pleadings,
motions, or other papers. You were a real
hardass in 1983, when you snuffed out all legal
creativity from federal proceedings and
embarassed well-meaning but overzealous
attorneys. You loosened up a bit in 1993, when
you began allowing plaintiffs to make
allegations in their complaints that are likely
to have evidenciary support after discovery,
and when you allowed a 21 day period for the
erring attorney to withdraw the errant motion.
Sure, you keep everything running on the up and
up, but it's clear that things would be a lot
more fun without you around.


Which Federal Rule of Civil Procedure Are You?
brought to you by Quizilla

Yeh-heah! No wussy notice-pleading for me! (Oh btw, it's "evidentiary", with a t.)

:: David M. Wagner 12:19 AM [+] ::
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:: Monday, February 23, 2004 ::

The University of North Carolina at Wilmington confronts a problem: too many Christian groups on campus. Via Mark Shea.

:: David M. Wagner 6:43 PM [+] ::
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Are some law profs too political? I'm afraid I'm the worst person to ask. Instead, why don't you ask Prof. Cass Sunstein?

:: David M. Wagner 4:37 PM [+] ::
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:: Saturday, February 21, 2004 ::

Southern Appeal joins the fun over Pryor.

:: David M. Wagner 11:24 PM [+] ::
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Instapundit nails the New York Times.

:: David M. Wagner 11:23 PM [+] ::
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Court grants cert in Padilla case. In a nutshell, Ex parte Quirin but with citizenship.

Will DOJ at least try the "political question" argument?

:: David M. Wagner 11:09 AM [+] ::
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CNN: Schwarzenegger: City on 'dangerous path'
Saturday, February 21, 2004 Posted: 5:41 AM EST (1041 GMT)

Schwarzenegger: Certificates issued to same-sex couples do not meet state legal standards.

SAN FRANCISCO, California (CNN) -- Californian Governor Arnold Schwarzenegger has warned San Francisco to stop issuing marriage licenses to same-sex couples in defiance of state law.

The marriage-license disneyland going on in San Francisco (and, briefly, in one county in New Mexico) may make what's going on in Massachusetts seem irrelevant. Wrong way around: San Francisco is irrelevant, at least for now, because California's cities have no jurisdiction to issue marriage licenses not authorized by state law. In Massachusetts, the legislature is actually debating a real amendment that could actually pass. That's where the activists should concentrate.

:: David M. Wagner 11:01 AM [+] ::
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:: Friday, February 20, 2004 ::

The President has recess-appointed William Pryor! The link is to a Federalist Society press release that also includes a link to the Society's legal analysis of the constitutional issues behind recess appointments.

It was Pryor's polarized confirmation hearing, you'll recall, that got Republicans to try out the "anti-Catholicism" charge against Judiciary Committee Democrats. Whether it's a fair charge is debatable (yes, Chuck Schumer wants to make it impossible for a Catholic who is serious about his faith in all its ramifications to be confirmed as a federal judge, but no, Catholicism per se was not Schumer's target); but clearly the charge gained traction in a way that other GOP protests against Dem obstructionism had not. Schumer was put distinctly on the defensive by it.

Be sure to take in the views of Parents and Friends of Gays and Lesbians, Earth Justice, Sen. Pat Leahy (who is actually ranking minority on the Committee, though Schumer tends to take the lead on nomination issues); and of course the "civil rights coalition". Here is a press release by black conservatives, calling attention to Pryor's support among African-Americans in his home state of Alabama.

:: David M. Wagner 6:04 PM [+] ::
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Cybercast News Service: Company's 'Tolerance' Clause Prompts Religious Discrimination Lawsuit. Via northern-Irish blog A Tangled Web.

:: David M. Wagner 1:32 PM [+] ::
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:: Saturday, February 14, 2004 ::

By an Amherst College journalist; emphasis added. -- DW

Repressive Tolerance

Some Questions Are Beyond the Pale For A "Liberal-Arts" College
By Ethan Davis
Posted February 13, 2004

You would think that a sitting Supreme Court Justice would be treated with respect pretty much anywhere. But not at Amherst College in Massachusetts, where on Tuesday Antonin Scalia was forced to pick his way through crowds of jeering protesters just to get to his lecture.

Once inside, Justice Scalia spoke eloquently, lucidly and politely on originalism in constitutional law. Interpreting the Constitution as it was originally written, he argued, is the only way to restrain liberal and conservative judges alike from imposing their personal preferences on the country. Five out of nine unelected lawyers, Scalia said, should not be legislating for the entire nation. If the Supreme Court makes a mistake, the people can only rectify it by constitutional amendment. Directed by their professors to believe that Scalia would engage only in "vitriolic name-calling," the audience was temporarily mollified. There were embarrassed looks as some of the less radical ones quietly removed their black armbands, and Scalia spoke without interruption for close to 45 minutes. During the question and answer period, some protesters tried to get the speech back on track with long-winded, accusatory questions (defying their own instructions to refrain from dialogue), but the speech ended without major incident.

The next evening, with Justice Scalia safely out of the way, the campus gathered for a "debriefing." Tony Marx, the newly inaugurated president of Amherst College, moderated the discussion, which quickly turned into an assault on the legitimacy of Scalia's presence on campus. Because President Marx allowed each person to speak only once, the four or five conservatives present, including political science professor Hadley Arkes, bore the brunt of the exchange.

Austin Sarat, the professor of law, jurisprudence and social thought who was one of the signers of the faculty boycott letter, delivered a long monologue. "The scope of legitimate debate on a college campus is narrower than in the world at-large," he declared. "Whether homosexuals are covered under the equal protection clause is not a debatable subject on a college campus." Furthermore, Professor Sarat announced, he did not find Antonin Scalia to have an "interesting mind." He would have much rather seen another justice, such as Sandra Day O'Connor, onstage.

Members of the College Democrats proclaimed that Amherst had exceeded the bounds of acceptable dialogue by inviting Scalia. Parroting the professors' letter of protest, they again condemned Scalia's alleged "vitriolic name-calling" and unwillingness to engage in reasonable dialogue. When asked about their curious silence on September 11, when Barbara Ehrenreich called President Bush a "moron" and expressed her fear that George W. Bush was going to "bomb a bunch of brown people," the Democrats changed the subject. The "discussion" then dissolved into a spat between the far-left and the moderate-left over whether Scalia violated Amherst's Statement of Respect for Persons. How strange that this endorsement of reasonable dialogue came from the same students who had been wearing black armbands and chanting profanities the evening before.

The only surprise of the night was that the professors and students finally said explicitly what campus conservatives have known for a long time. Dissent is legitimate, so long as it comes from the left. So much for a liberal education.

Ethan Davis is a student at Amherst College in Massachusetts, and co-editor of The Indicator, a non-partisan campus political journal.

:: David M. Wagner 3:46 PM [+] ::
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:: Friday, February 13, 2004 ::

Interesting post here from Lex Communis about the legal battle over the remains of "Kennewick Man", a battle that shows that when opposition to anthropological research is rooted in politically correct identity politics, rather than in adherence to Scripture, it can go far indeed.

:: David M. Wagner 6:58 PM [+] ::
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Terry Schiavo's parents/protectors win two procedural rounds. JURIST's "Paper Chase" blog tells us: "In the first case the court ruled that Bush's attorneys can question witnesses in the court battle over the hastily-passed law that purportedly gave the Governor authority to intervene." (Emphasis added)

There are major reasons to question how "brain-dead" Terri Schiavo really is, what her wishes really would be, and what her husband's motivations really are in wanting her to die. See Wesley Smith's article here, reprinted from The Weekly Standard; also here at NRO. So tell me, "mainstream" folks: why is the side wanting the patient to die always right, in your book? What's so attractive about death, that you are instinctively drawn to the party trying to inflict it?

:: David M. Wagner 6:32 PM [+] ::
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The crime known as "false pretenses"

:: David M. Wagner 11:04 AM [+] ::
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:: Tuesday, February 10, 2004 ::

This debate at Harvard didn't quite take place as advertised: the pro-same-sex-marriage side pulled out. More as it becomes available.

:: David M. Wagner 5:56 PM [+] ::
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