NINOMANIA

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:: Wednesday, June 30, 2010 ::

Welcome to the reader from Vilnius! When I saw that datapoint on the map, I thought, ah, maybe St. Petersburg, but... ah well, as Varlaam says:

Литва ли, Русь ли,
что гудок, что гусли,
всё нам равно: было б вино...

:: David M. Wagner 9:48 PM [+] ::
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Just tuned in to the hearings on Lady Kaga (blogger David Lat's term) on CSPAN -- and have been reminded why it's such a better use of my time to blog up Supreme Court opinions than Supreme Court hearings.

What kind of opposition party do the Republicans think they're being, when all they do is orate? The most radical nominee any Democratic president ever dreamed of sending up would have nothing to worry about as long as all he/she has to do is to sit there and look grave while drawling Claghorns make speeches and let the viewing audience know that they have cute staffers.

Coburn -- who at least doesn't have a southern accent, thanks be to almighty God -- had a great point when he asked Kagan whether the Commerce Clause gives Congress the power to dictate people's dietary habits. She parried it artfully by saying that would be a dumb law, and -- good pretense of judicial restraint here -- a Justice shouldn't strike down a dumb but constitutional law just because it's dumb. Yes, that's what Justice Thomas said in Lawrence v. Texas -- in dissent.

Needless to say, Coburn didn't pick up on that. Neither did he pick up on what he could have been expected to pick up on, namely, his own question. Rather than come back with "Yes, but would it be constitutional?" he picked up a copy of something venerable-looking (could have been a very fat Constitution or a very thin Federalist Papers, he didn't say) and started in on a 4th of July speech. Did he ever force an answer to his question? If so, the YouTube clip I saw ran out before he did.

I've already specified why I'm not going to oppose Kagan actively (see post of June 19). But even if I wanted to, what would be the point, with an opposition party as dim and listless as this? When the Democrats opposed Bork (admittedly, with a majority in the Senate, but also with a lot more brains and determination) they asked him brief questions -- and let him give long, scholarly answers from which soundbites could be chopped and clipped for the next day's outraged headlines and anguished commercials. That's the way it's frickin' done, people, when you're both capable and serious, which you're obviously not.

Then --- Leahy talking about "neither right nor left" and how he's glad he voted for Stevens and O'Connor even though "they were appointed by Republican Presidents" -- would have made me visit the salon of Monsieur Ralph by now, if I'd had eaten any thing since 7 am. Adjournment is your friend.

:: David M. Wagner 5:30 PM [+] ::
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Here is a better link for Prof. Randy Barnett's WSJ op-ed on McDonald. H/t: Randy! And leave it to CATO to make sure its scholars' op-eds are available to the public! ;)

The reason you should read this is that it details why the Thomas concurrence not only provides a scholarly analysis of the 14th Am. Privileges or Immunities Clause issue, but also why it makes that clause no longer ignorable.

:: David M. Wagner 4:29 PM [+] ::
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:: Tuesday, June 29, 2010 ::

Tomorrow, more about McDonald, the gun case. In the meantime, Prof. Randy Barnett had an excellent op-ed on it in today's WSJ. Unfortunately Rupert Murdoch wants you to pay to read it online, so instead, I'm linking to a shorter version that Randy posted on SCOTUSBlog.

My own views will be with Randy, insofar as the P/I clause is a better vehicle for incorporating the 2nd Am -- and indeed the rest of the B of R -- than the Due Process clause. I also tip my hat to him for noticing that, since Justice Thomas's vote was necessary to make five votes for the outcome, his position on the P/I clause is no longer ignorable.

I will, however, defend Justice Scalia from charges of being unprincipled on Substantive Due Process. Precedent may be overrated, but it's not unprincipled. There is also a principles distinction (recognized even in "Footnote Four") between "fundamental rights" s.d.p. based on mere subjective ideas on liberty, and "fundamental rights" s.d.p. based on constitutional text.

EDITED TO ADD: Didn't really mean to hate on Murdoch up there. As long as his mission in New York is to screw over the New York Times, we're on the same side.

:: David M. Wagner 11:42 PM [+] ::
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"As an historian, McConnell's a good lawyer." So once said Prof. Mark Tushnet about Prof. and former Judge Michael McConnell, in regard to his scholarship on the Free Exercise Clause. And as a spin-doctor on the morning after an asteroid-hit, killed-the-dinosaurs Supreme Court loss, McConnell is still a good lawyer.

As a further comment on that case, Christian Legal Society v. Martinez, I've posted the following on another forum, and feel it is appropriate for reposting here:

I've got some more dark for you, if you want to keep on whistling in it.

The Court didn't merely decline to review the Nondiscrimination Policy in favor of reviewing the All-Comers Policy instead: it declined to believe that Hastings had ever *had* the Nondiscrimination Policy. On remand, CLS has a chance to show that the All-Comers Policy was not applied neutrally, but no chance to argue that any other policy was applied, even though that was clearly the case.

As Alito points out -- not only was the All-Comers Policy made up for purposes of this litigation -- it's not even Hastings's current policy. The new policy supposedly allows reasonable discrimination based on the purposes of the group. Yet if that were being applied even-handedly to CLS, the case would have been mooted out. On remand CLS may argue that the policy of reasonable membership criteria must allow it to exclude fornicators and active gays. Hastings will say that accommodating such preferences is contrary to public policy. We know how *that* one comes out.

Btw, this year, at its annual Supreme Court Round-Up, the Federalist Society is evidently embarrassed to present Ted Olson as explicator-in-chief, as it usually does. So who is it presenting instead? Gregory Garre, the W-era SG who argued for Hastings College in the CLS case. Rhymes with "How screwed we arre...."

:: David M. Wagner 11:14 PM [+] ::
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:: Monday, June 28, 2010 ::

More on CLS v. Martinez

Remember Tom Lehrer's "The Folk Song Army"?

We are the Folk Song Army.
Everyone of us cares.
We all hate poverty, war, and injustice,
Unlike the rest of you squares.

Thought I caught a little tribute, if not to that song, then at least to its "protest" against the notion that indignant liberals have a natural monopoly on moral outrage and the social stature that goes with it, in a passage in Justice Alito's dissent.

It's when he's demolishing, one by one, the Court's recitation of Hastings College of Law's possible reasons for imposing an "all-comers policy" on its registered student organizations, notwithstanding any 1st Amendment featherruffles this may cause. One of those proffered reasons is that the school, "by bringing together students with diverse views, encourages tolerance, cooperation, learning, and the development of conflict-resolution skills." Dissent, slip op. at 29, citing Court slip op. at 23.

With Hastings playing the role of the Folk Song Army, thinking it hates poverty war and injustice and values diversity tolerance cooperation learning and development of conflict-resolution skills unlike the rest of you squares, Alito goes on:

Our country as a whole, no less than the Hastings College of Law, values tolerance, cooperation, learning, and the amicable resolution of conflicts. But we seek to achieve those goals through “[a] confident pluralism that conduces to civil peace and advances democratic consensus building,” not by abridging First Amendment rights. Brief for Gays and Lesbians for Individual Liberty as Amicus Curiae 35.

Alitomania: catch it.

And a shout-out to Gays and Lesbians for Individual Liberty. (Curia diversos amicos facet.)

:: David M. Wagner 9:18 PM [+] ::
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OK, let's turn to Christian Legal Society v. Martinez now. I'll start with the Alito dissent, cos it's my blog & I can do whatever I want (cos I'm not on the Hastings College of Law campus). "SAA" is loaded for bear:

The Court does not address the constitutionality of the very different policy that Hastings invoked when it denied CLS’s application for registration. Nor does the Court address the constitutionality of the policy that Hastings now purports to follow. And the Court ignores strong evidence that the accept-all-comers policy is not viewpoint neutral because it was announced as a pretext to justify viewpoint discrimination. Brushing aside inconvenient precedent, the Court arms public educational institutions with a handy weapon for suppressing the speech of unpopular groups—groups to which, as Hastings candidly puts it, these institutions “do not wish to . . . lend their name[s].” Brief for Respondent Hastings College of Law 11; see also id., at 35. [Ellipsis in original]

So what about those stipulations, the one the Court's opinion by Justice Ginsburg said it was "unseemly" for Judge McConnell, representing CLS, to try to "escape"? (Slip op. at 11) Alito and the other dissenters (Chief, Scalia, Thomas) reply:

I agree that the parties must be held to their Joint Stipulation, but the terms of the stipulation should be respected. What was admitted in the Joint Stipulation filed in December 2005 is that Hastings had an accept-all comers policy. CLS did not stipulate that its application had been denied more than a year earlier pursuant to such a policy. On the contrary, the Joint Stipulation notes that the reason repeatedly given by Hasting at that time was that the CLS bylaws did not comply with the Nondiscrimination Policy. See App. 228–229. Indeed, the parties did not even stipulate that the accept-all-comers policy existed in the fall of 2004 [when Hastings denied Registered Student Organization, and its important attendant privileges, status to CLS].

The difference between the "all-comers policy" and the written "Non-Dicrimination Policy" is that the latter is (1) what CLS was originally denied recognition under, and (2) a written policy under which sharp-elbowed viewpoint-based and ethnic-based organizations were allowed to exclude members who didn't advance their organization's goals, but (3) under which religious organizations received no protection (despite a string of SCOTUS decisions affirming that discrimination based on religious viewpoint = viewpoint discrimination) and (4) under which no organization until CLS had ever been denied -- an enforcement pattern that strongly suggests something other than neutrality.

The "all-comers policy," on the contrary, was a hastily jerry-rigged affair, invented during the present litigation, first appearing in the record in a depo by the Hastings Dean, and hastily (so to speak) applied by the College to all the other RSOs while this litigation was on-going. According to the majority, it is by the litigation-driven "all-comers policy," not the Nondiscrimination Policy that was actually applied to CLS, that Hastings's policy must be judged.

The dissent (in what the majority labels "a one-sided summary of the record evidence," fn. 29) does not buy it:

This [the "all-comers policy"] is not the policy that Hastings invoked when CLS was denied registration. Nor is it the policy that Hastings now proclaims—and presumably implements. It is a policy that, as far as the record establishes, was in force only from the time when it was first disclosed by the former dean in July 2005 until Hastings filed its brief in this Court in March 2010. Why we should train our attention on this particular policy and not the other two is a puzzle. But in any event, it is clear that the accept-all-comers policy is not reasonable in light of the purpose of the RSO forum, and it is impossible to say on the present record that it is viewpoint neutral.
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The accept-all-comers policy is antithetical to the design of the RSO forum for the same reason that a state-imposed accept-all-comers policy would violate the First Amendment rights of private groups if applied off campus. As explained above, a group’s First Amendment right of expressive association is burdened by the “forced inclusion” of members whose presence would “affec[t] in a significant way the group’s ability to advocate public or private viewpoints.” Dale, 530 U. S., at 648.
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There can be no dispute that this standard would not permit a generally applicable law mandating that private religious groups admit members who do not share the groups’ beliefs. Religious groups like CLS obviously engage in expressive association, and no legitimate state interest could override the powerful effect that an accept-all-comers law would have on the ability of religious groups to express their views. The State of California surely could not demand that all Christian groups admit members who believe that Jesus was merely human. Jewish groups could not be required to admit anti-Semites and Holocaust deniers. Muslim groups could not be forced to admit persons who are viewed as slandering Islam.

Nonetheless. The majority concludes with:

Neither the District Court nor the Ninth Circuit addressed an argument that Hastings selectively enforces its all-comers policy, and this Court is not the proper forum to air the issue in the first instance. On remand, the Ninth Circuit may consider CLS’s pretext argument if, and to the extent, it is preserved.

Let us pray. Erm, is that cool with the Nondiscrimination Policy? The "all-comers policy"? Whatever policy Hastings has this week?

:: David M. Wagner 7:50 PM [+] ::
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Free Enterprise Fund gets even better, this time in a part where petitioners do not prevail. On the issue of appointment power, as distinct from the removal power, the Court adopts a position taken by Scalia and three others in his "scathing concurrence" (my term) in Freytag v. Commissioner:

But, petitioners argue, the Commission is not a “Departmen[t]” like the “Executive departments” (e.g., State, Treasury, Defense) listed in 5 U. S. C. §101. In Freytag, 501 U. S., at 887, n. 4, we specifically reserved the question whether a “principal agenc[y], such as . . . the Securities and Exchange Commission,” is a “Departmen[t]”under the Appointments Clause. Four Justices, however, would have concluded that the Commission is indeed such a “Departmen[t],” see id., at 918 (SCALIA, J., concurring in part and concurring in judgment), because it is a “freestanding, self-contained entity in the Executive Branch,” id., at 915.

Respondents urge us to adopt this reasoning as to thoseentities not addressed by our opinion in Freytag, see Brief for United States 37–39; PCAOB Brief 30–33, and we do.

Now, for the next step: to adopt the rest of the Freytag concurrence's position, namely, that no entity that is not an Article III court can exercise "the judicial power of the United States."

:: David M. Wagner 5:01 PM [+] ::
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Free Enterprise Fund, slip op. at 25:

The dissent here suggests that other such positions might exist, and complains that we do not resolve their status in this opinion. Post, at 23–31.

By "such positions," the Court is referring to "other" independent agencies whose members are removable only by the (tenure-protected) heads of still-other independent agencies.

I quote this sentence to ask whether the Court is aware that the phrase "resolve their status," at least according to Tim Powers's great genre-bending Cold War/"fantastorical" novel Declare, is spy-talk for "kill them"! E.g., spies who have completed their jobs sometimes vanish, for fear that, given how much they know, their superiors will decide to "resolve their status." If there are any agencies directly comparable to the PCOAB, I agree it would be better to "resolve their status." Come to that, I think the "status" of Humphrey's Executor should be "resolved."

(Hat-tip here to Eve Tushnet for making sure that, reading-wise, I always eat my dessert, and not just my peas!)

:: David M. Wagner 4:11 PM [+] ::
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Remarkable that Free Enterprise Fund is a unified opinion from start to finish! I was sure that if any opinion today would be fractured, it would be this one (along with McDonald, which partly was).

The Chief, writing for the Court, even prevented Scalia from writing a jeremiad-concurrence about Humphrey's Executor and its woeful progeny. I would guess he achieved this by merely noting Humphrey's, Morrison, et al, not endorsing them. In fact the opening of the opinion might be paraphrased: We stated the basic rule of the president's removal power in Myers. We announced limits to that power in Humphrey's et al, but today, faced with a new situation, we announce a counter-limit, effectively limiting Humphrey's while declining to revisit it:

The parties do not ask us to reexamine any of these precedents, and we do not do so.

We are asked, however, to consider a new situation not yet encountered by the Court. The question is whether these separate layers of protection may be combined. May the President be restricted in his ability to remove a principal officer, who is in turn restricted in his ability to remove an inferior officer, even though that inferior officer determines the policy and enforces the laws of the United States.

We hold that such multilevel protection from removal iscontrary to Article II’s vesting of the executive power in the President. The President cannot “take Care that the Laws be faithfully executed” if he cannot oversee the faithfulness of the officers who execute them. Here the President cannot remove an officer who enjoys more thanone level of good-cause protection, even if the President determines that the officer is neglecting his duties or discharging them improperly. That judgment is insteadcommitted to another officer, who may or may not agree with the President’s determination, and whom the President cannot remove simply because that officer disagreeswith him. This contravenes the President’s “constitutional obligation to ensure the faithful execution of the laws.”

:: David M. Wagner 11:39 AM [+] ::
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WHOA!! Separation-of-powers geeks -- and that should be all Americans, especially those who like to call themselves constitutionalists and go to rallies where there are George Washington impersonators -- rejoice!

In Free Enterprise Fund v. PCOAB, the Court has actually found that a set of federal bureaucrats are "inferior officers" within the meaning of the Appointments Clause, and that the Constitution prohibits giving them protected tenure in office! Only getting the first reports now, but this sounds like the first setback for the Humphrey's Executor outrage since it was handed down in 1935! And all the right people -- that is, the left people -- are dissenting!

Regent 1Ls: this will totally be in my Con Law I course next spring!

:: David M. Wagner 10:52 AM [+] ::
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Bilski, the patent case, is a wishy-wash. This particular business process can't be patented, but there's no categorical prohibition on patenting business process. Only clear result: further gajillions in billable hours for patent lawyers.

:: David M. Wagner 10:50 AM [+] ::
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CLS is a loss. Ginsburg writes, as SCOTUSBlog predicted. Narrow, however: remand to 9th Circuit; CLS still has a case if Hastings applies its policy "selectively."

Remember that the oral argument in this case began with the Justices expressing confusion about the most basic facts in it, and proceeded with McConnell, arguing for CLS, fending off accusations of trying to back-peddle from some awfully lethal-sounding stipulations.

Alito writes the dissent, joined by Roberts, Scalia, and Thomas. Oi vey. Object lesson in picking cases with good facts, comma, importance of?

:: David M. Wagner 10:44 AM [+] ::
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More about McDonald: The majority leaves the issue of the Privileges or Immunities Clause substantially untouched. In a section that is plurality only, the Alito opinion (with Scalia on board) says there is no need here to revisit the P/I Clause and the Slaughterhouse Cases, since the Due Process Clause is the established way in which the Court has long applied the Bill of Rights to the States.

Precedent to one side (and yes, I enjoy saying that!), this makes no sense, for reasons Justice Scalia has eloquently explained on other occasions, but it faithfully reflects his line of questioning at oral argument in this case.

Justice Thomas concurs separately, making the Scalian argument -- what part of "process" don't you understand? (I paraphrase) -- and going on to argue that the P/I Clause is the proper 14th Am. vehicle for incorporating the 2nd Am.

There will be debate on whether or not this decision slams the door shut on reviving the P/I Clause, with the affirmative using a sort of J.R. Ewing argument: "Barnes, if you didn't get me this time, you never will." I stand by my statement: substantially untouched. The majority basically left the P/I Clause alone; the plurality portion of the Alito opinion used a the low-octane "no need to revisit" grade, rather than "plus" or "super."

:: David M. Wagner 10:27 AM [+] ::
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Justice Alito has written McDonald, holding that the 14th Am. makes the 2nd Am applicable to the States!

The first part of the opinion is a scholarly overview of the Court's past practices in applying the B of R to the states (or not) under the P/I Clause and/or the Due Process Clause.

The Court distinguishes an "individual rights" strand and a "deeply rooted in history and tradition" strand in Due Process, and locates the gun right in the former. This is truly defiant toward to Euro-progressive 'tude on guns, b/c it swats away the claim that American jurisprudence on guns is an American local peculiarity, merely part of our "culture." The Court is staking out a claim that insofar as some sector of international jurisprudence denies that the human person has an individual right to self-defense, that sector is wrong.

:: David M. Wagner 10:12 AM [+] ::
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:: Sunday, June 27, 2010 ::

Before Monday's onslaught of end-of-year SCOTUS bombshells, this blog would like to extend deepest condolences to Justice Ginsburg and her family on the passing of her husband, eminent tax attoreny Martin Ginsburg. RIP.

:: David M. Wagner 11:27 PM [+] ::
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:: Friday, June 25, 2010 ::

I haven't posted until now on Doe v. Reed -- the referendum-signature public-disclosure 1st Am case, decided yesterday -- because I've been contemplating the radical divergence between the extreme of the Scalia position (concurring separately) and the Thomas position (a lone dissent).

First of all, we all know why we're here. Fifteen years ago the Court decided a case, McIntyre v. Ohio Election Commission, that is distinguishable yet sufficiently similar to Doe so that the issue of associational privacy in political debate would not have needed to be revisited had not one political interest, amid all the others in our society who also feel passionately about their causes, felt entitled to use bully tactics to punish those who agitated in the opposite interest.

Yet only Scalia alluded to this -- and he is the only Justice who would have given that political interest what it wanted in this case, arguing that participation in a ballot initiative is not speech at all but legislation, and thus inherently suited to be done in public. One wonders if there is much carrying of him on shoulders, or at least some courteous tips of the hat, in the gay blogosphere today. I've done a quick search and haven't found any.

McIntyre decided, over a Scalia dissent (joined by Rehnquist), that there is a 1st Am right to engage in anonymous leafletting. Thomas concurred, arguing from a different set of time-consecrated practices, namely, the lively anonmyous pamphlet wars that sustained the American Revolution and constutitional debates. In McIntyre, and again in Doe, Scalia's argument against 1st Am protection for the activity in question was based substantially on "longstanding practice" -- in these cases, bans on the activity in question (anonymous leafletting, anonymous voting) that were in place on and off since the late 19th century and were never 'til now thought to violate the 1st Am. In the absence of clear constitutional text to the contrary, such practices are constitutionally probative to Scalia (and were so to Rehnquist, and usually are to Thomas: see the Scalia dissent in Lee v. Weisman).

Doe v. Reed reached the opposite result from McIntyre in regard to mandatory disclosure of names and addresses of referendum petition signers -- sort of. That is, the Court held that legislative petition-signing is speech, agreeing pro tanto with Thomas, but that no general rule against forced public disclosure of signers' names and addresses should be announced; rather, referendum advocates should petition courts for such protection on a case by case basis.

Such was the opinion of the Court, by Chief Justice Roberts -- and it is plainly wrong. It occupies an untenable middle between two convincing (though irreconcilable) opposites. I shall now explain.

Justice Thomas's lone dissent argued that, given that 1st Amendment interests in freedom of political association that the Court has long protected, and that the majority acknowledges are at stake in this case, the 1st Amendment must be construed as implying a blanket ban on forced disclosure to the public of the names and addresses of those who sign petitions for initiatives and referenda. Otherwise, this form of political participation and expression -- it is both, Thomas believes (and so does the rest of the Court, but not Scalia) -- will be chilled.

Justice Scalia argues that the Court has sadly saddled lower courts with yet another balancing test (he and Thomas agree in deploring this), and that the bright-line, no-balancing-needed rule should be one that sees citizen participation in referenda as legislation rather than expression. E.g., at the federal level, votes in Congress must be on the record, and no one has ever imagined that this violates congressmens' 1st Am rights. So when citizens take legislative power back into their own hands, states are free (though they don't have to, of course) to treat them as the full equivalent of legislators.

And what about the dangers of intimidation and reprisals by angry activists on the other side? Scalia says, basically, suck it up:

[I]t may even be a bad idea to keep petition signatures secret. There are laws against threats and intimidation; and harsh criticism, short of unlawful action, is a price our people have traditionally been willing to pay for self-governance. Requiring people to stand up in public for their political acts fosters civic courage, without which democracy is doomed. For my part, I do not look forward to a society which, thanks to the Supreme Court, campaigns anonymously (McIntyre) and even exercises the direct democracy of initiative and referendum hidden from public scrutiny and protected from the accountability of criticism. This does not resemble the Home of the Brave.

Both the Scalia view and the Thomas view are cogent and summoning. One or the other of them must be right: the 1st Am either protects ballot initiative participation or it doesn't.

But the opinion of the Court is plainly and disastrously wrong -- and no one makes clearer why this is so than Justice Alito in his concurrence (though he nonetheless joins the Roberts opinion, perhaps realizing that leaving it as a plurality opinion would only make a bad situation worse).

The Court, notes Alito, has announced a 1st Amendment right for citizen participation in ballot initiatives, but has failed to announce a judicial scheme for protecting that right. It accords such respect to the state's asserted interests (more on these in a later post, I hope) that district and circuit judges now have no guidance, and potential petition signers have no assurance that their names and addresses will be kept private. Alito's solution would be to give lower courts a test to use that puts the thumb squarely on the scale for the citizen's 1st Am interest.

In other words, Alito's position differs only minutely from Thomas's. Thomas would announce a strict 1st Am rule up front; Alito would announce a balancing test up front but than adjust the balance so that it favors the 1st Am interest. Thomas's approach is both more coherent and more protective of 1st Am interests, but perhaps Alito thought that, by writing from "within" the majority opinion, he could influence how it is applied.

Note too that while the majority says it is applying "exacting scrutiny" to the state's asserted interests, Alito offers such a long list of less-restrictive means that one is forced to conclude that he is applying good old strict scrutiny.

Now, Scalia and Thomas, in this case -- they offer us bright-line rules. Just -- opposite ones!

EDITED TO ADD: In an earlier draft of the above, I mistakenly had Alito providing the "fifth vote" the make the Chief's opinion the opinion of the Court. That was because I mistakenly thought Justice Sotomayor's concurrence (one of several "Yeah, me too" concurrences in this case, possibly intended to reinforce the standardless balancing test that the majority supplies, rather than the 1st-Am-interest-tilted one that Alito favors) was separate. In fact she also joins the Roberts opinion, giving that one six votes in all -- and making it harder still to understand why Alito's reasoning does not propel him to join the Thomas dissent.

:: David M. Wagner 9:37 PM [+] ::
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:: Thursday, June 24, 2010 ::

More preparations for CLS armageddon

I wrote a rather confused blogpost here (scroll down, after enjoying the Douglas/IOLANTHE business if you like) about the rather confused oral argument in CLS v. Martinez (decision expected next Monday; see post immediately infra).

It will be interesting -- if, as predicted, the Court's opinion is written by either Justice Stevens or Justice Ginsburg -- to see whether, in upholding Hastings College's policy of withholding "registered student organization" status from organizations whose membership criteria are "discriminatory," the Court either explains why Hastings would have to allow anti-Muslim students to take over a Muslim student group (a hypo advanced at oral argument by Justice Alito), or else, explains why its holding does not compel such a result, since a "believing Muslims only" policy would surely be "discriminatory" under any imaginable rationale that would have Hastings College winning this case.

It will also be interesting to see whether the Court shows any sign of agreeing with Justice Breyer (to cite one of his hypos from the oral argument) that Hastings's policy would force it (if applied consistently; i.e., non-discriminatorily) to bung Orthodox Jewish services off its campus, though Reform and Conservative Jewish services would remain welcome: Orthodox Jewish worship separates men and women, and that's discriminatory, don't you know, so -- can't let it happen on the College's dime, am I right? Am I right?

:: David M. Wagner 11:37 AM [+] ::
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To those waiting to find out whether the Court will hold that business process can be patented: you'll have to wait until Monday. Fwiw, SCOTUSBlog is sure (based on who has and has not written opinions from the Court's last round oral arguments this year) that Justice Stevens will write the opinion in the business-processes case (Bilski v. Kappos).

OMINOUS FOR RELIGIOUS LIBERTY: SCOTUSBlog also predicts that either Justice Ginsburg or Justice Stevens will deliver the opinion in CLS v. Martinez next Monday.

BUT MAYBE YOU CAN SHOOT BACK: They're also predicting that Justice Alito "has" McDonald v. Chicago, the 2nd-Am-apply-to-states case.

(Btw, I read these predictions in SCOTUSBlog's live-blogging feed from the Court this morning, and not all of them are still up. Their privilege. I'm just saying what I saw. They're the ones who go Annales over who's written how many opinions from which sitting, and that sort of thing. And we love them for it.)

One more note on the CLS case before the darkness descends: a shout-out to the CATO Institute for filing an amicus brief (by Richard Epstein) on behalf of CLS, along with the numerous but more predictable organizations that also did so. If you think I always agree with CATO's Supreme Court amicus positions, you'd have to think again, but I always admire the rigor and energy of this organization's defense of freedom.

:: David M. Wagner 10:55 AM [+] ::
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:: Monday, June 21, 2010 ::

So, what have we got in Holder v. Humanitarian Law Project? (See earlier posts: this is a summary.)

We've got: foreign organizations that might be called "dual-use": some of their activities are terrorist, others are not; and American citizens who sympathize with them and want to help their non-terrorist goals, in ways that are speech-like, though also susceptible to more concrete and specific definitions.

Congress might have banned such activity in a scattershot way that would indeed have violated the First Amendment. But instead, it restricted the ban to:

* a subset of defined (though admittedly speech-like) activities, and then banned them --

* when, but only when, they are carried out in conjunction with foreign terrorist organizations, not when they are done independently; and even this --

* only when said organizations have been labeled terrorist through adjudication, not through some bureaucrat's pen-tick.

Still a 1st Am violation? Get a life.

If it is, then -- see the tail end of Part V of the majority opinion -- the 1st Am would have protected U.S. citizens who might have gone to Germany or Japan during World War II to counsel Axis policy-makers (who, after all, have civilian as well as military goals) on ways to use international law to promote peace (precisely one of the activities in which HLP wanted to engage with their friends). Congress might indeed have allowed this, but the 1st Am would certainly not have compelled it to.

HLP's desired conduct, unlike the conduct in the above hypo, cannot be called treason, since we are not at war with the PKK or the Tamil Tigers. But the point where the law of treason leaves off is not the point where the 1st Am kicks in, with Congress powerless to protect national security in between.

:: David M. Wagner 5:36 PM [+] ::
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The Court also sees this case, not only as Cohen/Johnson rather than O'Brien (which would favor the plaintiffs as far as that goes), but also as an international security analogue of Brandenburg, with the standard appropriately adjusted in favor of law enforcement due to the judiciary's institutional lack of competence in this area:

The Government, when seeking to prevent imminent harms in the context of international affairs and national security, is not required to conclusively link

ACCKKK! Well, moving right along....

all the pieces in the puzzle before we grant weight to its empirical conclusions.

So, while this is Cohen rather than O'Brien in that the statute is content-based rather than content-neutral, this is also unlike Cohen in that it doesn't turn at all on taste, good or bad:

In this litigation, by contrast, Congress and the Executive are uniquely positioned to make principled distinctions between activities that will further terrorist conduct and undermine United States foreign policy, and those that will not.

:: David M. Wagner 5:12 PM [+] ::
...

Free speech aspects of the case:

1. Contrary to gov't's contention, this is not O'Brien; the restrictions are content-based, therefore it's Cohen/Texas v. Johnson.

2. However: "It is not difficult to conclude as Congress did that the 'tain[t]' of such violent activities [as PPK and LTTE have engaged in] is so great that working in coordination with or at the command of the PKK and LTTE serves to legitimize and further their terrorist means."

(Cite: “[I]nvestigators have revealed how terrorist groups systematically conceal their activities behind charitable, social, and political fronts.” M. Levitt, Hamas: Politics, Charity, and Terrorism in the Service of Jihad 2–3 [2006].)

It might seem that 2 cancels out 1, and that Congress's ability to restrict speech is limited only by its own imagination as to how speech might aid terrorists, perhaps supported (or even extended) by academic eggheads' or Beltway bandits' research. But the Court makes it clear that such is not the standard; the standard, rather, is coordination with terrorist organizations duly labelled as such by fair procedures:

The dissent argues that there is “no natural stopping place” for the proposition that aiding a foreign terrorist organization’s lawful activity promotes the terrorist organization as a whole. Post , at 10. But Congress has settled on just such a natural stopping place: The statute reaches only material support coordinated with or under the direction of a designated foreign terrorist organization. Independent advocacy that might be viewed as promoting the group’s legitimacy is not covered.

...

[W]e in no way suggest that a regulation of independent speech would pass constitutional muster, even if the Government were to show that such speech benefits foreign terrorist organizations. We also do not suggest that Congress could extend the same prohibition on material support at issue here to domestic organizations.

:: David M. Wagner 4:53 PM [+] ::
...

In part IV, the Court seems to be saying: the test for vagueness is more sensitive when speech and expressive association are concerned; but it does not follow that speech and expressive association are a "third rail" such that any otherwise-valid law that touches them become per-se void for vagueness. That would collapse a great deal of otherwise-valid democratic lawmaking into bans on speech; this has never been the law.

“But ‘perfect clarity and precise guidance have never been required even of regulations that restrict expressive activity.’ ” Williams , supra , at 304 (quoting Ward v. Rock Against Racism , 491 U. S. 781, 794 (1989) ).

Vagueness and overbreadth are not the same thing. Vagueness, a 5th Am Due Process doctrine, looks at whether a person of ordinary intelligence could tell what the statute prohibits. ("Training," "expert advice and assistance," and "material support" are not in this category.) Overbreadth, a 1st Am doctrine, looks at whether the statute could ban some constitutionally protected conduct, regardless of what the parties before the Court have done or want to do.

[T]he Court of Appeals contravened the rule that “[a] plaintiff who engages in some conduct that is clearly proscribed cannot complain of the vagueness of the law as applied to the conduct of others.” Hoffman Estates , supra , at 495. That rule makes no exception for conduct in the form of speech. See Parker v. Levy , 417 U. S. 733, 755–757 (1974) . Thus, even to the extent a heightened vagueness standard applies, a plaintiff whose speech is clearly proscribed cannot raise a successful vagueness claim under the Due Process Clause of the Fifth Amendment for lack of notice. And he certainly cannot do so based on the speech of others. Such a plaintiff may have a valid overbreadth claim under the First Amendment , but our precedents make clear that a Fifth Amendment vagueness challenge does not turn on whether a law applies to a substantial amount of protected expression. See Williams , supra , at 304; Hoffman Estates , supra , at 494–495, 497. Otherwise the doctrines would be substantially redundant.

:: David M. Wagner 3:23 PM [+] ::
...

Part III of the Humanitarian Law Project opinion points to a way the Obama DOJ has of defending statutes that tread close to free-speech interests. If the Bush boys did the same thing, please point that out to me.

When SG Kagan was defending McCain-Feingold in Citizens United, and had to admit that the law would authorize the banning of books within 60 days of an election, she fell back on the argument that federal prosecutors would never enforce the law in that manner. I.e. -- trust us.

Here, according to the Court, DOJ argued "that we should interpret the material-support statute, when applied to speech, to require proof that a defendant intended to further a foreign terrorist organization’s illegal activities." But "[w]e reject plaintiffs’ [i.e. Holder's, DOJ's] interpretation of §2339B because it is inconsistent with the text of the statute. Section 2339B(a)(1) prohibits 'knowingly' providing material support."

Notice the pattern. The statute may have a mens rea of "knowingly" but we ask you to blue-pencil into it a mens rea of "intent to further illegal activities." That's the way we mean to enforce it. Trust us!

The two cases aren't identical, of course. If, here, the Court had held that the statute contained an implied mens rea of intent, DOJ would theoretically have been bound by that in future prosecutions under it. But the statute itself would still have contained only the lesser mens rea of "knowingly." Eventually a prosecution brought under that theory would have come before the Supreme Court, which would then have said "Gosh darn you're right, it does say 'knowingly,' we were wrong to raise the bar on that...." Much better to interpret the statute in terms of its words now, and draw the necessary constitutional conclusions. (On which, more in a while.)

:: David M. Wagner 3:06 PM [+] ::
...

Plaintiffs do not challenge the above statutory terms in all their applications. Rather, plaintiffs claim that §2339B is invalid to the extent it prohibits them from engaging in certain specified activities....

such as splitting infinitives:

With respect to the HLP and Judge Fertig, those activities are: (1) “train[ing] members of [the] PKK on how to use humanitarian and international law to peacefully resolve disputes”;....

:: David M. Wagner 2:52 PM [+] ::
...

Of obvious interest to those following the Flotilla Megilla, even though the IHH is not a party the case we are considering:

The District Court in this action found that the PKK [Kurd dudes] and the LTTE [linked to "Tamil Tigers"] engage in political and humanitarian activities. See 9 F. Supp. 2d, at 1180–1182. The Government has presented evidence that both groups have also committed numerous terrorist attacks, some of which have harmed American citizens. See App. 128–133.

:: David M. Wagner 12:56 PM [+] ::
...

We conclude that the material-support statute is constitutional as applied to the particular activities plaintiffs have told us they wish to pursue. We do not, however, address the resolution of more difficult cases that may arise under the statute in the future.

Unspaz, everybody: limited holding here.

This litigation concerns 18 U. S. C. §2339B, which makes it a federal crime to “knowingly provid[e] material support or resources to a foreign terrorist organization.” ¹ Congress has amended the definition of “material support or resources” periodically.... [Emphasis added]

Maybe some day Congress will amend the definition to include the knowing splitting of infinitives. Since the Court a moment earlier referred to the Anti-Terrorism and Effective Death Penalty Act, we might call such an amendment the "Anti-Terror Against the English Language and Effective Death Penalty for Sloppy Writers Act."

Justice Scalia never splits infinitives. Surprised he didn't shove off from this part of the opinion; you know, like a grammatical form of legislative history!

:: David M. Wagner 12:32 PM [+] ::
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"Chief Justice Roberts delivered the opinion of the Court." And if you're not in, he leaves it with the doorman. -- Sorry; being from New York, I've loved that really stupid line for ages.

:: David M. Wagner 12:22 PM [+] ::
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Holder v. Humanitarian Law Project is out, with a 6-3 victory for the guvmint. This was the one where even warriors-on-terror like me wondered whether the government may have gone too far toward construing speech as aid to terror. Reading now; we'll see.

:: David M. Wagner 12:13 PM [+] ::
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:: Sunday, June 20, 2010 ::

Filibuster -- NO

No, Senate Minority Leader Mitch McConnell is not hinting at a filibuster of Elana Kaga. He is merely not closing the door on it. But he should close that door.

It's all very well -- in fact, it's brilliant -- to point out, as he does, that currently active Democrats, including Obama, have voted to require a 60-vote threshold for Supreme Court nominations. But if Republicans support one now, it will become a hard and fast rule. And once that happens, you can write off forever any future Scalias and Thomases, or even Robertses and Alitos.

In this Senate, Kagan could clear even a 60-vote hurdle. (C'mon, do you think Scott Brown, who voted for the financial reg bill, would vote against her? And what about the Maine contingent?) But when a Republican is in the White House -- unless he was swept in by a GOP tsunami that produces a more Republican Senate than either 1980 or 1994 -- another Souter will be the best he can do. And if he/she does have such a highly Republican Senate, liberal Justices will just wait out the congressional term before resigning. Constitutional conservatives would be forced to rely on coronary events or tragically-timed falling pianos to bring about change.

No Supreme Court filibusters. They're stupid. Republicans should renounce them, forever, now.

:: David M. Wagner 6:16 PM [+] ::
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:: Saturday, June 19, 2010 ::

Elena Kagan supported Peter Keisler

Well, here's why I don't feel I can oppose the Kagan nomination actively. (H/t: SCOTUSBlog)

I have no illusions about how she'll vote on the Court, tho' I think her likely influence within the Court has been overstated. (How is Justice Kennedy -- who allegedly reads his press clippings like a star soprano -- supposed to react when the media openly predict that Kagan, with her nice smile and her history of impressing grown-ups, will twist him around her little finger? Sheesh.)

Anyway, she supported Peter, so I can't oppose her. Debt of honor. Sorry.

:: David M. Wagner 2:19 PM [+] ::
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:: Thursday, June 17, 2010 ::

So, what does Stop the Beach Renourishment betoken for McDonald?

1. Scalia -- whether he's writing the opinion of the Court, or a concurrence, or a dissent, will not use Substantive Due Process to apply the 2nd Am to the states. Still less will he use the P/I Clause.

But he can, and likely will, find that the 2nd Am applies to the states w/o using either s.d.p. or p/i. The original incorporationist on the Court, please remember, was Justice Black, who advocated literal, clause-for-clause incorporation as an alternative to standardless, seat-of-pants, sense-of-justice, "shocks the conscience" incorporation via 14th Am Due Process. (Black also called the latter process "natural law," which is a huge slander on natural law, but that's a post for another day.)

Except on Establishment Clause issues, there's something Hugo-Blackian about Justice Scalia. He could well hold that the 2nd Am applies to the states b/c it's part of the Bill of Rights and the 14th made the Bill of Rights applicable to the States -- s.d.p. having nothing to with it.

2. The opinion will be fragmented, at best. Some of the verbal by-play in Stop the Beach had a tone that I recall too well from June of 1992. Scalia's strong dissent in Weisman turned out to betoken other things going on within the Court.

3. The Court could decide that the 2nd Am doesn't apply to the states. All that would take would be either Scalia deciding that incorporation, even the Hugo-Blackian version, has gone thus far and no further (tho' I can't really think of any reason why he would hold that, based on the oral arguments or anything he's said in the past), or Kennedy concluding that, sure, Due Process protects individual rights, but he, in his wisdom, doesn't think those rights include individual firearms ownership in this day and age, and while the result in Heller was compelled by the direct application of the 2nd Am to DC, here it's a matter of 14th Am Due Process, which means Justices can play the deuce with everything.

:: David M. Wagner 11:34 PM [+] ::
...

Justice Kennedy, concurring, says:

The Court’s Takings Clause jurisprudence has expanded beyond the Framers’ understanding, as it now applies to certain regulations that are not physical appropriations. See Lucas, supra, at 1014 (citing Mahon, 260 U. S. 393 ). But the Court should consider with care the decision to extend the Takings Clause in a manner that might be inconsistent with historical practice.

Take a picture, everyone: Justice Kennedy is coming out against interpreting the Constitution in a manner "that might be inconsistent with historical practice."

Oh no wait, that's just the Takings Clause. Interpreting the Constitution in a manner "that might be inconsistent with historical practice" is what we have the Due Process Clause (14th Am) for:

If and when future cases show that the usual principles, including constitutional principles that constrain the judiciary like due process, are somehow inadequate to protect property owners, then the question whether a judicial decision can effect a taking would be properly presented.

Kennedy isn't much for rules, like the Takings Clause (which, as the plurality points out, specifies what may not be done to people, not who may not do it), but he's big on "principles." For him, even the Takings Clause is not a rule, it's a principle, and it doesn't even protect property as an end in itself -- that would be way too mundane -- rather, it protects property only instrumentally:

The Takings Clause is an essential part of the constitutional structure, for it protects private property from expropriation without just compensation; and the right to own and hold property is necessary to the exercise and preservation of freedom.

Now, it seems from a properly wooden reading of the Constitution that the Framers protected property via the Takings Clause because they believed in property. Or, if they did protect property in order to protect freedom, the choice to protect freedom by protecting property was the one they made. This -- and not freedom in general -- is what Justices have to enforce.

For this choice the Framers have been bashed by the Beard school, and praised by many others, but whatever -- it's what they did. Oh no, though, Beard and his opponents alike had it all wrong: the Framers only protected property because they thought it was "necessary to the exercise and preservation of freedom." If some day it turns out not to be, or if "the exercise and preservation of freedom" becomes properly subordinate to other interests, Justice Kennedy will let you know:

If a court deems that, in light of increasing urbanization, the former rule for allocation of these costs should be changed, thus shifting the rights of the owners, it may well increase the value of one property and decrease the value of the other. This might be the type of incremental modification under state common law that does not violate due process, as owners may reasonably expect or anticipate courts to make certain changes in property law. [Emphasis added]

Yes, of course, "[t]he usual due process constraint is that courts cannot abandon settled principles." As in Lawrence, right?

:: David M. Wagner 10:34 PM [+] ::
...

As we have said, if we were to hold that the Florida Supreme Court had effected an uncompensated taking in this case, we would not validate the taking by ordering Florida to pay compensation. We would simply reverse the Florida Supreme Court’s judgment that the Beach and Shore Preservation Act can be applied to the Members’ property. The power to effect a compensated taking would then reside, where it has always resided, not in the Florida Supreme Court but in the Florida Legislature—which could either provide compensation or acquiesce in the invalidity of the offending features of the Act.

True dat. But the tone here is that of patience wearing thin, and of "Con Law 101" being reached for. Scalia took the same tone with O'Connor in his Webster concurrence, and though he was completely correct, the collegial feng shui was not so good.

The only realistic incentive that subjection to the Takings Clause might provide to any court would be the incentive to get reversed, which in our experience few judges value.

Yes, well, some of them are on the 9th Circuit. ;)

:: David M. Wagner 9:46 PM [+] ::
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"Finally, we cannot avoid comment upon Justice Kennedy’ s donning of the mantle of judicial restraint...."

Uh oh, there's no way this ends well. The Scalia plurality has already not avoided comment on this: a bit supra, where it said

[I]t is strange to proclaim a democracy deficit and lack of special competence for the judicial taking of an individual property right, when this Court has had no trouble deciding matters of much greater moment, contrary to congressional desire or the legislated desires of most of the States, with no special competence except the authority we possess to enforce the Constitution.

The plurality did not here mention Casey or Lawrence: it didn't have to. (It mentions Lawrence later, quite derisively, to highlight the vagueness of Substantive Due Process in comparison to the relative precision of the Takings Clause.)

:: David M. Wagner 9:32 PM [+] ::
...

Interesting that when Scalia, in one of the plurality sections of the Save the Beach opinion, protests that the Kennedy concurrence "propels us back to what is referred to (usually deprecatingly) as “'the Lochner era'[,]” he leavens his assertion "that the the 'liberties' protected by Substantive Due Process do not include economic liberties" with the parenthetical qualifier "(logically or not)."

So: he doesn't like Substantive Due Process; but, he applies it on the strength of precedent where appropriate; and, the exclusion of economic liberties from s.d.p., though hallowed by precedent, is not logical. Hm.

Also, "depractatingly" is no longer the invariable adverb of Lochner references, but merely the one applied "usually." Hmmm.

:: David M. Wagner 9:13 PM [+] ::
...

Hey -- if Scalia is writing about beaches, does that mean he's not writing about guns? Shoot me now.

:: David M. Wagner 8:09 PM [+] ::
...

From our hero, and just in time for beach season -- more than you ever wanted to know about littoral riparian rights. And the moral of that is: 1st year Property matters!

:: David M. Wagner 8:07 PM [+] ::
...

Bankruptcy cases yield strange splits.

:: David M. Wagner 7:48 PM [+] ::
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:: Wednesday, June 16, 2010 ::

Today, closing arguments were heard in Perry v. Schwarzenegger, the "Proposition 8" case in federal court in California. Review the live-blogging by the National Organization for Marriage here.

As he has throughout the trial, Judge Vaughan Walker left no doubt where he stands, approaching the issue as if marriage had been a gender-irrelevant practice from time immemorial until a bunch of bigoted California voters came along and, on the crest of the Obama election, deprived same-sex couples of their previously unquestioned right to marry.

Those asserting that this view of the world is, with all due respect, a bit bizarre, were continuously saddled with the burden of proof, the burden of producing expert witnesses in quantity to match the other side's, despite the fact that publicly opposing ssm is a career-ender in many milieus in which potential experts work, and the burden of showing peer-review for their experts' work, which is not the practice in the 9th Circuit -- and in any event should not be necessary to assert the proposition that voters have the right to legislate that marriage shall be what marriage has always and everywhere been taken to be, which is all that is necessary for defenders of Prop. 8 to win this case.

(I was going to say for California to win this case, but California is not seriously defending it.)

Obviously Judge Walker will rule that the Equal Protection Clause of the 14th Amendment -- enacted, like the rest of the Civil War Amendments, to bring civil equality to newly freed slaves -- requires that the most revolutionary social experiment in human history be carried out instanter, and that voters be deprived of any authority to stop it or even slow it down. The 9th Circuit will uphold this decision with unctuous delight; and then....

"Fundamental rights" decisions of the U.S. Supreme Court come in two varieties: neatening-up decisions, that merely remove statutes that very few people want to enforce anyway, such that even if the Court has to stretch its authority to reach its desired result ("emanations from penumbras" is still a punchline, after all), there is really no constituency for overruling such decisions. In this category are Griswold, Moore v. East Cleveland, and I'll even add, despite its pompous absurdities and legal imprecision, Lawrence.

Then, on the other hand, are the "fundamental rights" decisions that attack statutes that many, many Americans are still very serious about enforcing. These decisions do not settle anything, and they cause a huge drawdown of the Court's legitimacy. Roe is the most obvious example; so too is Casey, which, in the very act of whining about the need to maintain the Court's legitimacy, drained it further.

There are few if any other examples, though, b/c the Court has gotten better at sensing the danger. For example, the Zeitgeist may be running in favor of physician-assisted suicide; some states even permit it by statute; but other states prohibit it by statute, as the Common Law did, and many people still want to enforce those laws. They are not (like anti-contraceptive laws or anti-sodomy laws) anachronisms or merely symbolic. So, faced with an asserted "right" to physician-assisted suicide in Glucksberg, the Court gingerly noted that the debate on this issue is taking place in the states -- and left it there.

Now, Ted Olson would not have undertaken the Perry case if he didn't think Justice Kennedy's opinion for the Court in Lawrence was a signal that the ssm coalition is now in place on the Court. And certainly Justice Kennedy will make up his mind based on his personal notions of grand statesmanship, not on any consistent legal theory, whether of rights or of constitutional interpretation. But the grand statesmanship in question could very well favor a Glucksbergian solution, rather than the Court's taking on a new Roe.

Or not. And if not, I have no predictions. Academics senior to me, and activists with more experience, have written of a potential loss of legitimacy, not just of the court, but of the regime. I happen to think that if we survived 1800 and 1860-61, we'll get through this too. But with the survival of democracy in certain countries now drawn into question as a result of budget deficits, and with such budget deficits mounting here too, I don't think yanking another major moral issue out of the range of American democracy and into the ether of elite diktats will be healthy for that democracy. At all.

:: David M. Wagner 9:28 PM [+] ::
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:: Monday, June 14, 2010 ::

No particularly interesting SCOTUS opinions today -- and no majority opinions by Justice Scalia in quite some time. And McDonald -- the 2nd Am case -- was heard during the February sitting, like the other cases in which decisions are currently being released, was it not? Hmm....

:: David M. Wagner 11:02 AM [+] ::
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:: Friday, June 11, 2010 ::

More on the Virginia Episcopal v. Truro case

The Virginia Supreme Court says (slip op. at 18):

While undoubtedly there was theological disagreement between TEC [the Episcopal Church] and the Diocese and CANA [Convocation of Anglicans in North America, with implied reference, no doubt to John 2:1-11], the ADV [Anglican Diocese of Virginia], the dissenting congregations and the Church of Nigeria [an Anglican province that provides episcopal governance to the dissenting Virginia congregations] concerning the actions of the 2003 General Convention of TEC [most notably the episcopal ordination of a gay non-celibate], all of these entities continue to admit a strong allegiance to the Anglican Communion. Accordingly, we conclude that the circuit court erred in its holding that there was a division in the Anglican Communion for purposes of the application of Code § 57-9(A) in these cases. [Emphasis added]

"Admit"? Does the Anglican Communion get any say in this? Can anything and everything become part of the Anglican Communion -- or of any other church -- just by "admitting a strong allegiance" to it, whatever that means?

As it happens, the highest authority in the Anglican Communion has expressed disapproval of Nigerian Archbishop Akinola's intervention in the U.S., but also of the "TEC"'s actions in carrying out the Gene Robinson ordination. More recently, and even more to the point, the Anglican Communion has bunged "TEC" out of certain of its ecumenical boards and shindigs. Seems the Anglican Communion is getting almost as tired of "TEC"'s progressive parade-route as CANA and the ADV are. But no matter, TEC "admits allegiance" to the Anglican Communion, and that settles it.

Can someone explain why this isn't scary?

:: David M. Wagner 3:42 PM [+] ::
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:: Thursday, June 10, 2010 ::

The Virginia Supreme Court, overruling a lower court opinion, has just ruled unanimously against a breakaway Anglican group (insert Henry VIII joke here) and in favor of the Episcopal Church, from which this Anglican group broke away.

Apparently the substance of the ruling is that the lower court erred in holding that "continuing Anglican" group was actually part of the Episcopal Church. Yes, that sounds like an erroneous holding to me -- but above all, it sounds like the sort of theological dispute that secular courts in the U.S. are barred from ruling on, under a First Amendement doctrine that stretches from U.S. v. Watson to the Serbian National Orthodox cases and beyond.

If I think differently after I read it, I'll let you know.

:: David M. Wagner 11:50 AM [+] ::
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:: Tuesday, June 01, 2010 ::

"Critique the right to marry as a movement priority"

AALS conventions are one of the places where the "cutting edge" cuts its edges. It is with a certain amount of surprise, then, that one finds on the menu of one of the inevitable rethink-the-family seminars that they have every year at their early-January general conventions, the following offering from next January's meeting:

The law and advocates engaged in disputes over marriage and family make varying assumptions about facts of social life and the appropriate aims of legal regulation. This plenary panel questions these assumptions and asks who is actually benefited by the positions social movements and advocacy organizations take. The panelists will explore issues such as feminist and critical race critiques of marriage and the right to marry as a movement priority; the failure of lesbigay legal reform programs adequately to protect transgender youth and their precarious location vis-à-vis family; and whether it is proper for the state to seek to “establish” and confer favor upon any one particular family formation. [Emphasis added]

Many translations are possible; I suggest two, but there are others: (a) We've never liked marriage, and we're sick of pretending; (b) We're losing on marriage, so why not link up with those crazy libertarians and destabilize it through the "get the state out of it" route?

:: David M. Wagner 1:45 PM [+] ::
...