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 ::
:: Wednesday, July 26, 2006 ::
Washington Supreme Court upholds that state's DOMA. More comments as I read through and reflect. First off, it seems clear that the "wrong side of history" argument is losing its power to terrify. The New York Court of Appeals brushed it off at the end with an appeal to democratic process; the Washington Supreme Court does it even more sharply, near the beginning:Judge Bridge's dissent claims that gay marriage will ultimately be on the books and that this court will be criticized for having failed to overturn DOMA. But, while same-sex marriage may be the law at a future time, it will be because the people declare it to be, and not because five members of this court have dictated it.
Take that, "Justice Marshall delivered the opinion of the court" of Massachusetts!
:: David M. Wagner 3:08 PM [+] ::
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:: Monday, July 17, 2006 ::
I'm in The Weekly Standard this week, on the New York same-sex marriage decision, with some comments as well on the Massachusetts SJC's decision allowing the anti-Goodridge amendment onto the ballot (with a threat by two concurrers to strike the amendment down even it becomes part of the Massachusetts Constitution, and, as such, part of the document that gives the SJC whatever power it has to strike down anything; unless it relies on the U.S. Constitution, which Justices Greaney and Ireland conspicuously do not do).
The first few grafs of my piece are here. For the rest, you need to subscribe. And you should.
:: David M. Wagner 2:23 PM [+] ::
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:: Tuesday, July 11, 2006 ::
Harry:
I think your hearing aid is emitting quite a high pitched sound. Can it be adjusted?
- Sandra
-- and other notes passed between Justices during oral arguments and kept by Justice Blackmun! (That one was Nov. 9, 1992.)
Many thanks to Timothy R. Johnson, Associate Professor, Department of Political Science, University of Minnesota, who put up the site.
:: David M. Wagner 6:07 PM [+] ::
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:: Friday, July 07, 2006 ::
Natural law conference in D.C., Fri. July 14The Ralph McInerny Center for Thomistic Studies will be holding its second conference, on Natural Law Today, on Friday, July 14, from 1:00 to 4:45 p.m., in the Russell Senate Office Building, Room 385. The conference is free and open to the public.
The first speaker will be Roberto de Mattei, Vice President of the National Research Council of Italy, who will address the topic of E.U. vs. Natural Law: From the Treaty of Nizza to the Project of a European Constitution. Steven Long, of the Ave Maria Department of Philosophy will follow with a talk on Natural Law in Contemporary Society.
The two speakers will be followed by a Roundtable on Natural Law Today, with four featured participants. Michael Cromartie of the Ethics and Public Policy Center will discuss Protestants and Natural Law: Yesterday and Today. Thomas Hibbs, Dean of the Honors College, Baylor University will speak on Natural Law and Popular Culture. Joshua Hochschild, Department of Philosophy, Mt. St. Marys College, will speak onNatural Law and Subsidiarity.Pia de Solenni, founder of Diotima, will conclude with a presentation on What Does Natural Law Have to Say to Feminism.
The conference schedule will include time for questions and answers and discussion after each of the two talks and the roundtable.
The purpose of the Ralph McInerny Center for Thomistic Studies is to foster a renewal of Thomistic studies in the contemporary world. It aims to promote a strong and accurate rereading of Aquinas philosophy and theology but, at the same time, to make Aquinas thought fruitfully converse with contemporary culture, especially in the areas of bioethics, legal theory, economics, political theory, literature, science, and sociology. (For more detail on the Thomas International Project, go to www.thomasinternational.org. )
:: David M. Wagner 2:00 PM [+] ::
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OK, I've had a chance to look over the NewYork opinion.
Maggie Gallagher has often argued that to support same-sex marriage, one must deny either that straight sex has a much higher likelihood of leading to babies than does gay sex, or that children need both a mother and a father. (Her debating opponents often validate this observation by proceeding to deny the second proposition.)
This is relevant to the rational-basis portion of the New York opinion, which holds that a rational legislature could hold both those propositions, in which case extending marriage to opposite-sex but not same-sex couples, in the interest of children, easily clears the r.b. threshold.
The court also (in both the plurality and the concurring opinions) addresses Loving v. Va. in a very thorough way. Loving was mainly about race, and the "right to marry" that it announced dissolves state-imposed restrictions on marital choice only insofar as those restrictions are based on race. This reading of Loving is bolstered by its own text, and also by the terms of the U.S. Supreme Court's denial of cert. in an early ssm case.
The dissent relies on the U.S.S.Ct's revisionist reading of Loving in Zablocki v. Redhail, which (a) was about divorce, not ssm, and (b) is an outlier anyway; see Sosna v. Iowa. The dissent also quoted from the NAACP's amicus brief -- not from authorities cited in the brief, but the brief itself, as though the NAACP somehow "owns" Loving and can authoritatively float revisionist readings of it. (The NAACP may not be speaking for many of its constituents, if this lament by the Rev. Al Sharpton is factually accurate.)
If I may do some ssp here, I've written about the Loving analogy in: 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 1:31 PM [+] ::
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:: Thursday, July 06, 2006 ::
Currently taking a look at Hernandez et al. v. Robles et al., four consolidated cases in which the New York Court of Appeals (the state's highest court) held 4-2 that the state constitution does not create a right of same-sex marriage, and Perdue v. O'Kelley, in which the Georgia Supreme Court reinstated a voter-approved constitutional amendment banning ssm, which a lower court had struck down. (Hat-tip for the links: How Appealing.)
May comment further, may not. The least one can say is that the "march of history" argument for ssm is looking thinner.
:: David M. Wagner 5:16 PM [+] ::
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:: Tuesday, July 04, 2006 ::
Happy Fourth!
Check this out: I'm against the flag protection amendment!
It's not that I'm as confident as Justice Scalia is that Texas v. Johnson, which he joined and has often publicly defended, is correct: I accept that its fact pattern isn't O'Brien, and that the Texas law imposed a direct rather than an indirect burden on expressive conduct -- but then, I've never been persuaded that "speech," "press," or any other term in the First Amendment (emphatically including "religion," which is clearly a term of limitation within the Free Exercise Clause) affords general protection to any conduct that can plausibly be termed "expressive." The reasoning of Johnson puts at risk the principle of states' and localities' "contra bonos mores" power, which Scalia defended in his Barnes v. Glen Theater concurrence, and of course his Lawrence dissent.
However, the effort to undo Johnson by amendment is disturbing for two reasons:
1. If the flag amendment ever did become part of the Constitution, it would set a risky precedent: what else will be disovered to be too "sacred" to be abandoned to the First Amendment? We live in an age of "political correctness," remember? If we get into the habit of putting offendedness-preventing clauses into the Constitution, what will future ones look like?
2. It trivializes the amendment process. It's purely symbolic, and everyone knows that. Not so with the marriage protection amendment: loss of the publicly available concept of marriage -- I should say, further loss of it -- would do much more than symbolic harm. But when a Republican-controlled Senate debates these two amendments in one summer, the impression naturally arises that neither is anything more than rightwing pandering. Which, in the minds of some Senators, it may be. But not in reality.
3. Consequently, while I don't find much to agree with in this Christopher Hitchens column (well-written, as always), I do like this part:
You may believe if you choose that Hillary Clinton has abruptly decided to stand between her country's star-spangled banner and its unsleeping enemies. I cannot quite shake the feeling that she is instead putting the flag between herself and her potential critics. Is it this kind of degraded election-year parody that the sponsors of the proposal seriously wanted to encourage? In Iraq, our most desperate field of battle, our troops do not display the flag on patrol because they are in someone else's country. No thinking soldier needs to have this explained to him, or her. But in Washington, the alleged "defense" of the flag depends, for its swing-votes, on people whose very stock-in-trade is cowardice. That ought never to have happened, and is an insult to those who serve, and ought not be permitted to happen again.
:: David M. Wagner 6:12 PM [+] ::
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:: Sunday, July 02, 2006 ::
Senate race: Jim Webb seems to think there's no difference between commanding Marines in Vietnam and persuading voters in an election. In his latest blast, he implies that it's questioning his patriotism to point out that he took the same stand on an issue (the flag amendment) as did Senators Kerry, Schumer, and Kennedy. (I wonder how those Senators feel about the inevitable implication.)
Webb is getting so testy -- and so inclined to flak his concededly stellar military record for political gain -- that the Allen campaign is promoting press attention to Webb's latest press release.
:: David M. Wagner 8:53 PM [+] ::
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Judge Bridge's dissent claims that gay marriage will ultimately be on the books and that this court will be criticized for having failed to overturn DOMA. But, while same-sex marriage may be the law at a future time, it will be because the people declare it to be, and not because five members of this court have dictated it.Take that, "Justice Marshall delivered the opinion of the court" of Massachusetts!
:: David M. Wagner 3:08 PM [+] ::
...
The first few grafs of my piece are here. For the rest, you need to subscribe. And you should.
:: David M. Wagner 2:23 PM [+] ::
...
Harry:
I think your hearing aid is emitting quite a high pitched sound. Can it be adjusted?
- Sandra
-- and other notes passed between Justices during oral arguments and kept by Justice Blackmun! (That one was Nov. 9, 1992.)
Many thanks to Timothy R. Johnson, Associate Professor, Department of Political Science, University of Minnesota, who put up the site.
:: David M. Wagner 6:07 PM [+] ::
...
The Ralph McInerny Center for Thomistic Studies will be holding its second conference, on Natural Law Today, on Friday, July 14, from 1:00 to 4:45 p.m., in the Russell Senate Office Building, Room 385. The conference is free and open to the public.
The first speaker will be Roberto de Mattei, Vice President of the National Research Council of Italy, who will address the topic of E.U. vs. Natural Law: From the Treaty of Nizza to the Project of a European Constitution. Steven Long, of the Ave Maria Department of Philosophy will follow with a talk on Natural Law in Contemporary Society.
The two speakers will be followed by a Roundtable on Natural Law Today, with four featured participants. Michael Cromartie of the Ethics and Public Policy Center will discuss Protestants and Natural Law: Yesterday and Today. Thomas Hibbs, Dean of the Honors College, Baylor University will speak on Natural Law and Popular Culture. Joshua Hochschild, Department of Philosophy, Mt. St. Marys College, will speak onNatural Law and Subsidiarity.Pia de Solenni, founder of Diotima, will conclude with a presentation on What Does Natural Law Have to Say to Feminism.
The conference schedule will include time for questions and answers and discussion after each of the two talks and the roundtable.
The purpose of the Ralph McInerny Center for Thomistic Studies is to foster a renewal of Thomistic studies in the contemporary world. It aims to promote a strong and accurate rereading of Aquinas philosophy and theology but, at the same time, to make Aquinas thought fruitfully converse with contemporary culture, especially in the areas of bioethics, legal theory, economics, political theory, literature, science, and sociology. (For more detail on the Thomas International Project, go to www.thomasinternational.org. )
:: David M. Wagner 2:00 PM [+] ::
...
Maggie Gallagher has often argued that to support same-sex marriage, one must deny either that straight sex has a much higher likelihood of leading to babies than does gay sex, or that children need both a mother and a father. (Her debating opponents often validate this observation by proceeding to deny the second proposition.)
This is relevant to the rational-basis portion of the New York opinion, which holds that a rational legislature could hold both those propositions, in which case extending marriage to opposite-sex but not same-sex couples, in the interest of children, easily clears the r.b. threshold.
The court also (in both the plurality and the concurring opinions) addresses Loving v. Va. in a very thorough way. Loving was mainly about race, and the "right to marry" that it announced dissolves state-imposed restrictions on marital choice only insofar as those restrictions are based on race. This reading of Loving is bolstered by its own text, and also by the terms of the U.S. Supreme Court's denial of cert. in an early ssm case.
The dissent relies on the U.S.S.Ct's revisionist reading of Loving in Zablocki v. Redhail, which (a) was about divorce, not ssm, and (b) is an outlier anyway; see Sosna v. Iowa. The dissent also quoted from the NAACP's amicus brief -- not from authorities cited in the brief, but the brief itself, as though the NAACP somehow "owns" Loving and can authoritatively float revisionist readings of it. (The NAACP may not be speaking for many of its constituents, if this lament by the Rev. Al Sharpton is factually accurate.)
If I may do some ssp here, I've written about the Loving analogy in: 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 1:31 PM [+] ::
...
May comment further, may not. The least one can say is that the "march of history" argument for ssm is looking thinner.
:: David M. Wagner 5:16 PM [+] ::
...
Check this out: I'm against the flag protection amendment!
It's not that I'm as confident as Justice Scalia is that Texas v. Johnson, which he joined and has often publicly defended, is correct: I accept that its fact pattern isn't O'Brien, and that the Texas law imposed a direct rather than an indirect burden on expressive conduct -- but then, I've never been persuaded that "speech," "press," or any other term in the First Amendment (emphatically including "religion," which is clearly a term of limitation within the Free Exercise Clause) affords general protection to any conduct that can plausibly be termed "expressive." The reasoning of Johnson puts at risk the principle of states' and localities' "contra bonos mores" power, which Scalia defended in his Barnes v. Glen Theater concurrence, and of course his Lawrence dissent.
However, the effort to undo Johnson by amendment is disturbing for two reasons:
1. If the flag amendment ever did become part of the Constitution, it would set a risky precedent: what else will be disovered to be too "sacred" to be abandoned to the First Amendment? We live in an age of "political correctness," remember? If we get into the habit of putting offendedness-preventing clauses into the Constitution, what will future ones look like?
2. It trivializes the amendment process. It's purely symbolic, and everyone knows that. Not so with the marriage protection amendment: loss of the publicly available concept of marriage -- I should say, further loss of it -- would do much more than symbolic harm. But when a Republican-controlled Senate debates these two amendments in one summer, the impression naturally arises that neither is anything more than rightwing pandering. Which, in the minds of some Senators, it may be. But not in reality.
3. Consequently, while I don't find much to agree with in this Christopher Hitchens column (well-written, as always), I do like this part:
You may believe if you choose that Hillary Clinton has abruptly decided to stand between her country's star-spangled banner and its unsleeping enemies. I cannot quite shake the feeling that she is instead putting the flag between herself and her potential critics. Is it this kind of degraded election-year parody that the sponsors of the proposal seriously wanted to encourage? In Iraq, our most desperate field of battle, our troops do not display the flag on patrol because they are in someone else's country. No thinking soldier needs to have this explained to him, or her. But in Washington, the alleged "defense" of the flag depends, for its swing-votes, on people whose very stock-in-trade is cowardice. That ought never to have happened, and is an insult to those who serve, and ought not be permitted to happen again.
:: David M. Wagner 6:12 PM [+] ::
...
Webb is getting so testy -- and so inclined to flak his concededly stellar military record for political gain -- that the Allen campaign is promoting press attention to Webb's latest press release.
:: David M. Wagner 8:53 PM [+] ::
...
