NINOMANIA

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:: Monday, April 19, 2010 ::

"A case which bubbles over with poetical emotion"

In his on-going "This day in judicial activism" feature on the Benchmark blog at NRO, Ed Whelan recalls today's anniversary of Sierra Club v. Morton, a sound decision that produced a dissent from the fast-fading Justice Douglas, by then in the "cocktail napkin" phase of his career:

Dissenting from the Supreme Court’s ruling in Sierra Club v. Morton that the Sierra Club lacks standing to challenge federal actions regarding a ski development, Justice William O. Douglas proposes “the conferral of standing upon environmental objects to sue for their own preservation.” The question of standing “would be simplified and also put neatly in focus if we fashioned a federal rule that allowed environmental issues to be litigated before federal agencies or federal courts in the name of the inanimate object about to be despoiled, defaced, or invaded.” Under this rule, these inanimate objects—“valleys, alpine meadows, rivers, lakes, estuaries, beaches, ridges, groves of trees, swampland, or even air that feels the destructive pressures of modern technology and modern life”—would be named parties. “The river as plaintiff speaks for the ecological unit of life that is part of it.” The “legitimate spokesmen” in court for the inanimate object would be “[t]hose who have [an] intimate relation with the inanimate object.” “Then there will be assurances that all of the forms of life which [the inanimate object] represents will stand before the court—the pileated woodpecker as well as the coyote and the bear, the lemmings as well as the trout in the streams.”

Douglas may or may not have known that Gilbert & Sullivan's character Strephon, in IOLANTHE, had beaten him to it by some eighty decades; and that the answer, or part of it, had been given by Strephon's antagonist, the Lord Chancellor:

LORD CHANCELLOR: Now, sir, what excuse have you to offer for having disobeyed an order of the Court of Chancery?

STREPHON: My Lord, I know no Courts of Chancery; I go by Nature’s Acts of
Parliament. The bees – the breeze – the seas – the rooks – the brooks – the gales – the vales – the fountains and the mountains cry, “You love this maiden – take her, we command you!” ’Tis writ in heaven by the bright barbèd dart that leaps forth into lurid light from each grim thundercloud. The very rain pours forth her sad and sodden sympathy! When chorused Nature bids me take my love, shall I reply, “Nay, but a certain Chancellor forbids it”? Sir, you are England’s Lord High Chancellor, but are you Chancellor of birds and trees, King of the winds and Prince of thunderclouds?

LORD CHANCELLOR: No. It’s a nice point. I don’t know that I ever met it before. But my difficulty is that at present there’s no evidence before the Court that chorused Nature has interested herself in the matter.

STREPHON: No evidence! You have my word for it. I tell you that she bade me take my love.

LORD CHANCELLOR: Ah! But, my good sir, you mustn’t tell us what she told you – it’s not evidence. Now an affidavit from a thunderstorm, or a few words on oath from a heavy shower would meet with all the attention they deserve.

STREPH. And have you the heart to apply the prosaic rules of evidence to a case which bubbles over with poetical emotion?

LORD CHANCELLOR: Distinctly. I have always kept my duty strictly before my eyes, and it is to that fact that I owe my advancement to my present distinguished position.

Btw -- RIP John Reed, the D'Oyly Carte's leading exponent of the Lord Chancellor (and Koko, Jack Point, and similar roles); 1916-2010.

:: David M. Wagner 5:42 PM [+] ::
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CLS v. Martinez

Fogged about the Christian Legal Society v. Martinez oral argument this morning. Lyle Denniston's account (than which no further authority is needed, tho' I will of course look at the transcript myself when I can) makes it sound as tho' the Court allowed this case to reach it despite uncertainty about basic facts, such as, do Hastings's draconian rules requiring its campus's Christian Legal Society to admit e.g. flaming atheists as voting members and potentially chapter presidents and Bible study leaders find any analogue in its rules governing any other campus organization?

Lyle writes:

Alito also suggested that the school policy were applied as Garre [representing Hastings] had described it, a group of ten Muslim students would have to allow 50 students who had strongly anti-Muslim views to come in, take it over, and run it as they pleased. “You would say the First Amendment would allow that,” the Justice commented. “That has never happened in 20 years,” Garre responded, but both Alito and then the Chief Justice dismissed that comment as unresponsive.

In Michael McConnell's merits brief for CLS, this issue is addressed as follows:

As the record shows, other groups at Hastings are permitted to maintain their identity, cohesion, and message by limiting their leadership and membership to students who share their core beliefs. Intervenor-Respondent Outlaw, for example, reserves the right to remove any officer who “work[s] against the spirit of the organization’s goals and objectives.” Pet. App.
138a.

Similarly, the bylaws of Silenced Right, a prolife advocacy group, state that “[s]o long as individuals are committed to the goals set out by the leadership, they are welcome to participate and vote in Silenced Right elections.” Id. at 143a.

Under the constitution of the Hastings chapter of the Association of Trial Lawyers of America (“ATLA”), all members must “adhere to the objectives of the Student Chapter as well as the mission of [national] ATLA.” Id. at 110a. Students may be members of the Hastings Democratic Caucus (“HDC”) only “so long as they do not exhibit a consistent disregard and lack of respect for the objective of the organization as stated in [HDC’s bylaws].” Id. at 118a. The sole objective identified in those bylaws is the group’s ideological commitment “to advance Democratic party
principles.” Id. at 117a. All of these groups were accepted as RSOs. As Hastings acknowledged in its answer to CLS’s complaint, “the Policy on Nondiscrimination permits political, social, and cultural student organizations to select officers and members who are dedicated to a particular set of ideals or beliefs.” J.A. 93.

The record further indicates that Hastings’ Policy was not applied where it would interfere with the identity and message of a student group. For example, the La Raza bylaws restrict “policy” membership to students “of Raza background” (meaning persons of Latino or Mexican descent) who timely pay their dues and regularly attend meetings. Id. at 192. Only “policy” members have the right to vote. Ibid. La Raza also has a category of “associate” members that “encompasses all [Hastings] students * * * who are of Raza background.” Ibid. “Associate membership can be conferred by the body upon a non-Raza and nonlaw students as an honorary gesture.” Ibid. While recognizing that the La Raza bylaws “restrict voting rights to persons of La Raza background,” Director Chapman certified those bylaws as “in compliance with the Nondiscrimination Compliance Code,” in the same year in which she refused registration to CLS.
Id. at 319.

Hastings's position, as I read its merits brief, is that it is not discriminating against CLS at all, and that to the extent it seems to be, this is only because CLS has singled itself out by becoming the only registered student organization (RSO) at Hastings by objecting to Hastings's "nondiscrimiation" requirements for RSOs.

And what about all those RSOs with apparently discriminatory provisions in their bylaws? Says Hastings:

Pointing to various RSO bylaws, petitioner asserts that the policy has not been implemented in an evenhanded manner. Pet.Br.12. But CLS fails to mention that every one of those groups also signed the policy and thus agreed to abide by it, and that the record establishes that no other RSO “has ever attempted to restrict its membership on the basis of a protected category.” JA-350 ¶7. Moreover, the record establishes that Hastings does not interpret the bylaw references to which petitioner points “as an attempt to establish a test or criteria for membership in any way,” JA-350 ¶8, and groups themselves have “confirmed” that their bylaws “allow[] all students to join,” JA-351 ¶10. See also, e.g., JA-343. There is, in short, no evidence that Hastings has ever exempted any RSO from complying with its open-membership policy. Pet.App.65a-66a.

So, if I'm reading what I think I'm reading, the Hastings chapter of CLS was denied RSO status because, unlike all other Hastings RSOs that have similarly restrictive membership criteria, CLS was candid about this fact and pointed it out to the College's administration, rather than just signing the administration-required paperwork with a "whatever."

Ironically, if that's really what's happening, then perhaps Hastings CLS doesn't have a case against Hastings College of Law for discriminating, but against all those other Hastings RSOs for being dishonest tools. Which, alas, is not actionable.

But that's not where it ends. If Hastings wins this case, interesting results will follow that those wishing Hastings well today will not like. Given a large and mischievous enough Young Republican presence at Hastings, its members could take over the Hastings College of Law Democratic Club and place its imprimatur on who-knows-what sort of Tea Party resolutions. A coalition of Jewish and Evangelical students could take over the Muslim student group, endorse a Greater Israel with Jerusalem as its eternal capital, and call for removal of the Mosque of Omar.

Note that permitting all this take-over mischief would be required by the First Amendment (as well as federal and California anti-discrimination law) as interpreted by Hastings in the present case. It would be prohibited by the First Amendment as interpreted by CLS and Judge McConnell, whose First Amendment requires state actors to allow groups, as well as individuals, to define themselves and express their group identity.

The Court could agree with Hastings that student-organization takeover mayhem has not yet occurred on the Hastings campus, and therefore the present case is not an apt vehicle for deciding whether the 1st Am should be read so as to encourage or to discourage it. But something was on the Court's mind when it granted cert on the 9th Circuit's two-sentence affirmance here, which was based on an easily-distinguished (and probably wrong) precedent of that circuit's own, conflicting with decisions from most other circuits (see Brief for Petitioners, fn. 3, collecting cases).

Student-organization takeover mayhem is not just a hypethetical on other campuses. (See FIRE's amicus brief in support of CLS for instances of campus activist groups infiltating each other for purposes of takeover and dismantlement.) Courts should deal only with cases before them, but if SCOTUS was not concerned about the implications of the rule Hastings is asking for, what was it concerned about?

ADDENDUM: Josh Blackman has some thoughts, with transcript excerpts, here. They show, imo: (1) McConnell got pretty badly mauled; (2) so did Garre, by a hypo from Breyer showing that, by Garre's argument, Hastings could allow Reform or Conservative Jewish worship on campus but couldn't allow use of university facilities for Orthodox Jewish worship, b/c separation of the sexes in worship wd be "discrimination" by "status"; (3) no one knows what the boundary between "religion" and "status" is, and this case cd give the Court a great opportunity to muck it up.

:: David M. Wagner 3:45 PM [+] ::
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:: Friday, April 16, 2010 ::

Why Judge Crabb's decision striking down about the National Day of Prayer is wrong

* It assumes that government action that neither coerces religious conduct nor confers on any religious denomination(s) the status of an official church violates the Establishment Clause. (The Supreme Court has occasionally held this too. When it has done so, it is wrong. It has also held the opposite.)

* It is quick to conflate religious with political conflict -- raising the intriguing possibility the free speech may also some day be found to violate the Establishment Clause. (Notice how many times the word "controversial," or synonyms for it, appear in the opinion, and reflect on the formerly freedom-loving nations of Europe are cracking down on speech that gives "offense.")

* It concludes that the National Day of Prayer is like the longstanding monument in Van Orden rather than the recently set-up one in McCreary. Why a statute enacted 1952 falls on the wrong side of the old-and-ok versus new-and-dodgy line is unclear at best.

* It relies heavily on concurring opinions, not majority holdings, from SCOTUS.

* It adopts the Lee v. Weisman "coercion" test, which admittedly is a majority SCOTUS holding, but which has never been held by them before or since, and in any event has diffculty passing the giggle test, for the reasons stated definitively for all time by Justice Scalia in his dissent.

* It assumes -- with much citation from sympathetic commentators but little real analysis -- that just showing people a good time, where that good time happens to consist of prayer (encouraged, but by no means coerced), is not a "secular interest."

* While the "ceremonial deism" aspect of Marsh v. Chambers is dodgy and Judge Crabb was right not to give it weight, the "history and ubiquity" aspect of Marsh makes perfect sense and the decision is wrong to reject it.

There's more, but I know the ACLJ will be more thorough than this off-the-cuff job when it takes the case up on appeal.

:: David M. Wagner 9:20 PM [+] ::
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:: Thursday, April 15, 2010 ::

Eric Posner sasses out "universal jurisdiction" and the International Criminal Court.

:: David M. Wagner 4:22 PM [+] ::
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Justice Thomas did mention George Mason as a great, non-Ivy League law school, during his testimony around 1:20:20. Win!

:: David M. Wagner 4:21 PM [+] ::
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:: Tuesday, April 06, 2010 ::

Unanimous 3-judge DC Cir. ruling: FCC's net neutrality power grab goes beyond its statute (Tatel, writing for self, Sentelle, and Randolph)

:: David M. Wagner 11:56 AM [+] ::
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