NINOMANIA
:: 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 ::
:: Thursday, May 25, 2006 ::
I see dead judges: Or, as Howard Bashman puts it, just how long is life tenure? Former Third Circuit Judge Edward Becker, "one of the most influential federal appeals judges," who died last Friday, "served as senior judge until his death." In fact, the Third Circuit has issued an opinion of his that was apparently not received for filing in the clerk's office before he entered into eternity. This situation thus forces the somewhat ghoulish question, does an opinion "count" if the judge who delivers it is, um, no longer among us at the time of said delivery?
To make matters worse, the case, Petruska v. Gannon University, a Title VII "ministerial exception" case, was a 2-1 split decision (against applying the exception), so: even apart from the written opinion, does the outcome change? (Further thoughts from Howard here.)
:: David M. Wagner 12:29 PM [+] ::
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:: Monday, May 15, 2006 ::
Sign of the times
If you merge into I-64 north/west bound, toward Richmond, Washington, and points north, starting at Regent University's highway entrance (exit 286), you will shortly see a billboard on your right that is frequently rented by our University. Years ago it showed a gaudy, Thomas-Kinkade-ish sunrise, the words "Get Your Graduate Degree at Regent" in large letters, and then, in smaller letters: "Well, you asked Him for a sign!" I liked that one a lot.
Currently we are again using that billboard, this time for the Law School specifically, to showcase our recent ABA national moot court winners. There are pictures of Dean and Dannielle and others. (But why, I wonder, no picture of Liz? I mean really...!)
:: David M. Wagner 11:18 AM [+] ::
...
More evidence that it's a good idea for Christians to maintain a voice in international human rights law, rather than let that train leave the station (or get further down the track) without them -- JURIST reports:A new report by the Irish Human Rights Commission [advocacy website] released [press release] Friday has found that Ireland may be in breach of international human rights laws because the country does not currently recognize same-sex marriages [JURIST news archive].
:: David M. Wagner 11:05 AM [+] ::
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:: Friday, May 12, 2006 ::
Mike Luttig: There, um, goes the judge.
PowerLine scorns the theory that Judge Luttig was motivated by the Bush Administration's change of stance in the Padilla case. Sure, the buckets of money that Boeing no doubt offered must have been a factor. But the impact of the Padilla business can't be so quickly dismissed.
Here Judge Luttig busted his buttresses to bring in a unanimous panel opinion upholding the President's power to declare an American citizen, arrested on American soil, to be an enemy combatant -- and then, faced with a cert petition and uncertainty about the outcome from Higher Authority*, the administration says, never mind, he's just a criminal after all, we can try him according to normal criminal procedures.
The Administration will say it still insists on, and values, the principle of the Luttig panel opinion; it's just that the application of that principle to Padilla's case changed, in the judgment of those who must make such decisions. But Luttig might answer that his colleagues on the Fourth Circuit only joined the opinion because they bought the argument that treating Padilla as an enemy combatant was one of those, whatya call 'em, "compelling state interests." And now it's not something that need be done at all?
As one who occasionally teaches Con Law II (including Equal Protection and substantive due process), I can appreciate that when the government claims a c.s.i., or any legal equivalent thereof, the interest in question had just better really be compelling, given what a c.s.i. finding amounts to -- a license to violate otherwise-applicable constitutional rights.
I can't be sure what Luttig's motives were, but it's hard not to sympathize with his doctrinal position.
* Here at Regent we know who "Higher Authority" really is, but in the U.S. Courts of Appeals, there is a tendency to refer in this fashion to the U.S. Supreme Court.
:: David M. Wagner 10:51 AM [+] ::
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:: Monday, May 08, 2006 ::
You need to read this:
Banned in Boston:
The coming conflict between same-sex marriage and religious liberty.
by Maggie Gallagher
The Weekly Standard, 05/15/2006, Volume 011, Issue 33
To get you started:Reading through these and the other scholars' papers, I noticed an odd feature. Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead--perhaps because they tended to find it "inconceivable," as Doug Kmiec of Pepperdine law school put it, that "a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage." That's a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don't arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a "long way" from equating orientation with race in the law.
By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Kmiec regards as inconceivable has already happened. They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that's pretty close to the world in which they live now.
Emphasis added. For my latest $0.02 on the orientation/race analagy, see David M. Wagner, Marriage and Banking: Examining Miscegenation Laws to Test the Proposition that Loving v. Virginia Leads to Goodridge v. Department of Public Health, 7 Fl.Coastal L.Rev. 389 (2005).
:: David M. Wagner 1:46 PM [+] ::
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:: Sunday, May 07, 2006 ::
Yesterday was our Commencement, or, as one of the parking signs would have it, Commen Cement. Congratulations to the Class of 2006!
:: David M. Wagner 6:09 PM [+] ::
...
To make matters worse, the case, Petruska v. Gannon University, a Title VII "ministerial exception" case, was a 2-1 split decision (against applying the exception), so: even apart from the written opinion, does the outcome change? (Further thoughts from Howard here.)
:: David M. Wagner 12:29 PM [+] ::
...
If you merge into I-64 north/west bound, toward Richmond, Washington, and points north, starting at Regent University's highway entrance (exit 286), you will shortly see a billboard on your right that is frequently rented by our University. Years ago it showed a gaudy, Thomas-Kinkade-ish sunrise, the words "Get Your Graduate Degree at Regent" in large letters, and then, in smaller letters: "Well, you asked Him for a sign!" I liked that one a lot.
Currently we are again using that billboard, this time for the Law School specifically, to showcase our recent ABA national moot court winners. There are pictures of Dean and Dannielle and others. (But why, I wonder, no picture of Liz? I mean really...!)
:: David M. Wagner 11:18 AM [+] ::
...
A new report by the Irish Human Rights Commission [advocacy website] released [press release] Friday has found that Ireland may be in breach of international human rights laws because the country does not currently recognize same-sex marriages [JURIST news archive].
:: David M. Wagner 11:05 AM [+] ::
...
PowerLine scorns the theory that Judge Luttig was motivated by the Bush Administration's change of stance in the Padilla case. Sure, the buckets of money that Boeing no doubt offered must have been a factor. But the impact of the Padilla business can't be so quickly dismissed.
Here Judge Luttig busted his buttresses to bring in a unanimous panel opinion upholding the President's power to declare an American citizen, arrested on American soil, to be an enemy combatant -- and then, faced with a cert petition and uncertainty about the outcome from Higher Authority*, the administration says, never mind, he's just a criminal after all, we can try him according to normal criminal procedures.
The Administration will say it still insists on, and values, the principle of the Luttig panel opinion; it's just that the application of that principle to Padilla's case changed, in the judgment of those who must make such decisions. But Luttig might answer that his colleagues on the Fourth Circuit only joined the opinion because they bought the argument that treating Padilla as an enemy combatant was one of those, whatya call 'em, "compelling state interests." And now it's not something that need be done at all?
As one who occasionally teaches Con Law II (including Equal Protection and substantive due process), I can appreciate that when the government claims a c.s.i., or any legal equivalent thereof, the interest in question had just better really be compelling, given what a c.s.i. finding amounts to -- a license to violate otherwise-applicable constitutional rights.
I can't be sure what Luttig's motives were, but it's hard not to sympathize with his doctrinal position.
* Here at Regent we know who "Higher Authority" really is, but in the U.S. Courts of Appeals, there is a tendency to refer in this fashion to the U.S. Supreme Court.
:: David M. Wagner 10:51 AM [+] ::
...
Banned in Boston:
The coming conflict between same-sex marriage and religious liberty.
by Maggie Gallagher
The Weekly Standard, 05/15/2006, Volume 011, Issue 33
To get you started:
Reading through these and the other scholars' papers, I noticed an odd feature. Generally speaking the scholars most opposed to gay marriage were somewhat less likely than others to foresee large conflicts ahead--perhaps because they tended to find it "inconceivable," as Doug Kmiec of Pepperdine law school put it, that "a successful analogy will be drawn in the public mind between irrational, and morally repugnant, racial discrimination and the rational, and at least morally debatable, differentiation of traditional and same-sex marriage." That's a key consideration. For if orientation is like race, then people who oppose gay marriage will be treated under law like bigots who opposed interracial marriage. Sure, we don't arrest people for being racists, but the law does intervene in powerful ways to punish and discourage racial discrimination, not only by government but also by private entities. Doug Laycock, a religious liberty expert at the University of Texas law school, similarly told me we are a "long way" from equating orientation with race in the law.Emphasis added. For my latest $0.02 on the orientation/race analagy, see David M. Wagner, Marriage and Banking: Examining Miscegenation Laws to Test the Proposition that Loving v. Virginia Leads to Goodridge v. Department of Public Health, 7 Fl.Coastal L.Rev. 389 (2005).
By contrast, the scholars who favor gay marriage found it relatively easy to foresee looming legal pressures on faith-based organizations opposed to gay marriage, perhaps because many of these scholars live in social and intellectual circles where the shift Kmiec regards as inconceivable has already happened. They have less trouble imagining that people and groups who oppose gay marriage will soon be treated by society and the law the way we treat racists because that's pretty close to the world in which they live now.
:: David M. Wagner 1:46 PM [+] ::
...
:: David M. Wagner 6:09 PM [+] ::
...
