Category: Law

Why I Post What I Post

By , March 3, 2014 1:17 pm

In light of my recent posts on Arizona SB1062, the bill that Gov. Brewer vetoed the other day, I feel I need to be clear: I don’t hate gays or lesbians. I am not a homophobe. As the saying goes, I have friends (and relatives) who are gay or lesbian. I wish them well and, for the most part*, support them in their quest for equal rights. My religion challenges me to love all people. I try to do that. Most of the time I succeed.

No, my posts—and posts like them on other subjects—come from a deep-seated belief in the value of religious liberty and from an ongoing frustration with those on the left who label my side, the conservative/religious side, “haters,” “deniers,” “misogynists,” “fascists,” “homophobes,” and “racists,” among other things. I know in my heart that I’m none of those things, and I’m confident that all or the vast majority of the conservatives/religious people I know are not. Thus, I’ve made up my mind to push back whenever I see those on the other side of an argument cavalierly throw around such evil epithets posing as reasoned argument.

I want to stress the word “cavalierly.” I am not a Pollyanna. I realize there are people–people on both sides of the aisle–who are, in fact, haters, deniers, misogynists, fascists, homophobes, and racists. When they act out on those traits, they should be called out. That said, it seems that the best way to do that is on a case-by-case basis rather than to label an entire groups of people unfairly and, generally, for political purposes.

That is all.

*I support traditional marriage, again not out of any animus towards the LBGT community but out of a belief in the nature and purpose of marriage that I won’t go into here. I do support civil unions.

Cross posted to GregoryTaggart.com.

Court or Steamroller? When Rights Conflict

By , March 1, 2014 4:27 pm

I don’t care which side you are (were) on in the recent outcry over Arizona’s SB1062, but I assume you are interested in the facts of what the bill did and did not do. From what I’ve read, the bill was badly misrepresented. And in the process, its proponents were labeled haters and homophobes, while Jon Stewart called the bill repugnant–even though SB1062 did not even mention same-sex marriage or homosexuality and even though it essentially copied laws that are already on the federal books and on the books of 18 states.

In fact, the proposed law would have come into play if, say, the government attempted to force a small business to provide birth control. It would have applied to a government’s attempt to compel a business to pay for abortion services for its employees. If you can think of a case where the government–state or federal–might impose a burden on someone’s sincere religious belief, the proposed law would apply. Yes, it could have come into play had a baker refused to bake a cake for a same-sex wedding.

But the bill WOULD NOT have decided the case. The bakery would still have to pass GO. The owner would still have to demonstrate that he or she was acting out of a sincere religious belief. The same-sex couple would still be able to argue that the baker’s belief was less than sincere and did not justify refusing them service. And a court would ultimately have to decide between the two parties—based on the rules set out in the proposed law. In other words, the bill did not create an exception, so religious people could discriminate willy nilly. It simply sets the standards by which a court would adjudicate such a case.

Don’t believe me? Here, for your reading pleasure, is the best description of the proposed law I’ve read. It’s written by 11 prominent law professors, some of them Republicans, some Democrats; some of them support same-sex marriage, some don’t. Nine of them felt that Gov. Brewer should have signed the bill. Two were unsure. Among the 11 are Mary Ann Glendon of Harvard and Michael McConnell of Stanford, two of the brightest lights in the legal academy.

You can read what they wrote at the link–without any filtering by the press or Comedy Central or by me. The following are three key paragraphs:

SB1062 would amend the Arizona RFRA [Religious Freedom Restoration Act] to address two ambiguities that have been the subject of litigation under other RFRAs. It would provide that people are covered when state or local government requires them to violate their religion in the conduct of their business, and it would provide that people are covered when sued by a private citizen invoking state or local law to demand that they violate their religion.

But nothing in the amendment would say who wins in either of these cases. The person invoking RFRA would still have to prove that he had a sincere religious belief and that state or local government was imposing a substantial burden on his exercise of that religious belief. And the government, or the person on the other side of the lawsuit, could still show that compliance with the law was necessary to serve a compelling government interest. As a business gets bigger and more impersonal, courts will become more skeptical about claims of substantial burden on the owner’s exercise of religion. And as a business gets bigger, the government’s claim of compelling interest will become stronger. (Emphasis supplied)

A few paragraphs later, the 11 law professors summarize the bill’s impact as follows:

So, to be clear: SB1062 does not say that businesses can discriminate for religious reasons. It says that business people can assert a claim or defense under RFRA, in any kind of case (discrimination cases are not even mentioned, although they would be included), that they have the burden of proving a substantial burden on a sincere religious practice, that the government or the person suing them has the burden of proof on compelling government interest, and that the state courts in Arizona make the final decision. (Emphasis supplied)

Did you catch that? Those who are refused service by a business can still sue. Those who are sued can assert the defense of sincere religious practice. And the courts get to sort it out–just like they would have done prior to the bill becoming law. The only difference is that the evidentiary rules governing that courtroom exercise would be codified.

And that’s repugnant? My eye.

Cross posted to GregoryTaggart.com.

Are Angels Watching, or Is the NSA?

By , November 6, 2013 11:51 am

Madison said it best,

If men were angels, no government would be necessary. If angels were to govern men, neither external nor internal controls on government would be necessary. In framing a government which is to be administered by men over men, the great difficulty lies in this: you must first enable the government to control the governed; and in the next place oblige it to control itself.

Alex Tabarrok rifs on that theme at Marginal Revolution when he asks Did Obama Spy on Romney? He answers his own question:

No. Some people claim that President Obama didn’t even know about the full extent of NSA spying. Indeed, I imagine that President Obama was almost as surprised as the rest of us when he first discovered that we live in a mass surveillance state in which billions of emails, phone calls, facebook metadata and other data are being collected.

Who knows? As Tabrrok reminds us, the NSA listened in on Angela Merkel’s phone calls. What if Romney called her during his 2012 campaign? In any case, he’s certainly right when he says that “Men are not angels.” Nevertheless, Tabarrok doesn’t think the NSA forwarded any tapes on to the Obama campaign. Still, “Men are not angels,” right?

Did the NSA use the information they gathered on Mitt Romney and other political candidates for political purposes? Probably not. Will the next president or the one after that be so virtuous so as to not use this kind of power? I have grave doubts. Men are not angels.

The Nixon administration plumbers broke into the offices of Daniel Ellsberg’s psychiatrist in order to gather information to discredit him. They busted into a single file cabinet (pictured). What a bunch of amateurs.
The NSA has broken into millions of file cabinets around the world.

Nixon resigned in disgrace. Who will pay for the NSA break-ins? (Emphasis added)

And Now for Something Completely Different

By , November 1, 2013 10:37 am

If you’ve ever wondered what happens in the Supreme Court, you’re living at the right time. The Internet generally and Oyez.org particularly open the door to the court so that as early as the day of an oral argument, you can actually listen to the argument as you read the transcript of the argument. Obviously, if you can do that, you can also listen to older oral arguments, even arguments as old as Roe v. Wade, the abortion decision, or New York Times v. Sullivan, the decision that established the actual malice standard in defamation cases, or New York Times v. Nixon, the so-called Pentagon Papers case. It’s fascinating–at least to me.

Sometimes the arguments can be dry, but often some humor sneaks in and other times, you might hear a justice ask a question or an attorney tell a story that suddenly casts a decision into an entirely new light. That happened to me with the Boumediene v. Bush case, a case involving a detainee in Guantanamo and the Military Commissions Act. At the close of his rebuttal argument, Boumediene’s attorney, Seth Waxman, relates what he calls a “truly kafka-esque” story of a Mr. Bilgen, who had also been a detainee, accused of being a terrorist. The story is too long and complicated to repeat here, but you can listen to it here–beginning at the 80:11 mark of the argument. (Before you listen, you should know the meaning of the acronym CSRT.)

The technology the Court uses has improved over the years, so the recordings of oral arguments today are much better than they were, say, in the time of Roe v. Wade. In any case, take a look at Oyez.org (and even a tour) and take time to listen to some of these arguments.

The Futility of Attempting to Reap What You Failed to Sow – Part II

By , October 31, 2013 2:48 pm

So a friend asked me to check Moynihan’s thesis against vote tallies for the Civil Rights Act of 1964, another piece of landmark legislation. I don’t know about my friend, but the vote(s) on that bill stunned me. A greater number of Republicans voted for the bill than did Democrats. There were a number of votes (parliamentary procedure is beyond my ken, so I won’t go into them) but basically on both sides of Congress, 80% of Republicans voted for the bill and between 61% and 69% of Democrats went for it, depending on the vote.*

And the Moynihan thesis? It holds here as well. A bi-partisan majority of 73% passed the bill in the Senate. A bi-partisan majority of 70% voted “yea” in the House (on the the Senate version of the bill).

*Of course, Democrat numbers would have been better had it not been for their Southern siblings who voted 8 – yea, 107 – nay on the bill.

Truck, Meet Hole Part II

By , October 31, 2013 1:17 pm

In a previous post, I discussed the regulations HHS promulgated in June 2010 to implement the Affordable Care Act. I failed to mention that buried in the issue of the Federal Register that contains those regulations, you’ll find the following chart:

ACA_Lose Coverage

You can find the chart and relevant discussion of both group and individual plans on pages 35,552 to 34,553 of this document. Interim-Final-Regulations_HHS-OS-2010-0015-0001_3

Forbes magazine claims that in these pages and with this chart, “Obama Officials [said] In 2010: 93 Million Americans Will Be Unable To Keep Their Health Plans Under Obamacare.” I’m not sure if Forbes’s analysis is accurate, but there’s no doubt that Obama officials knew that lots of people with group and individual health insurance were going to lose their grandfathered status, and thus the health insurance that they presumably liked, by the end of 2013.

The Futility of Attempting to Reap What You Failed to Sow

By , October 31, 2013 9:52 am

In a previous post, I told the following story about the late Daniel Patrick Moynihan’s advice to the Clintons:

Twenty years ago, when he was trying to persuade Bill and Hillary Clinton that universal health care was a politically unrealistic goal, the late Sen. Daniel Patrick Moynihan repeated one insistent warning: Sweeping, historic laws don’t pass barely.’They pass 70-to-30,’ he said, ‘or they fail.’ [Rahm Emanuel gave President Obama similar advice.]

Later I began to wonder, what was the vote on the original Social Security bill? Medicare and Medicaid?

Social Security:

The Ways & Means Committee Report on the Social Security Act was introduced in the House on April 4, 1935 and debate began on April 11th. After several days of debate, the bill was passed in the House on April 19, 1935 by a vote of 372 yeas [including 81 of 102 Republicans], 33 nays, 2 present, and 25 not voting. . . .

The bill was reported out by the Senate Finance Committee on May 13, 1935 and introduced in the Senate on June 12th. The debate lasted until June 19th, when the Social Security Act was passed by a vote of 77 yeas [including 16 of 25 Republicans], 6 nays, and 12 not voting. (Emphasis added)

Medicare and Medicaid:

H.R. 6675, The Social Security Admendments of 1965, began life in the House Ways & Means Committee where it passed the Committee on March 23, 1965 (President Johnson issued a statement in support of the bill after the favorable Committee vote) and a Final Report was sent to the House on March 29, 1965. The House took up consideration of the bill on April 7th, and passed the bill the next day by a vote of 313-115 [including 70 out of 140 Republicans] (with 5 not voting).

The Senate Finance Committee reported the bill out on June 30th and debate began on the Senate floor that same day, concluding with passage on July 9, 1965 by a vote of 68-21 [including 13 out of 32 Republicans] (with 11 not voting). (Emphasis added)

For those without a calculator, Social Security passed with 86% of the vote in the House and 81% in the Senate. Medicare passed with 71% of the vote in the House and 70% in the Senate. Both bills had strong, bi-partisan support. In contrast, the Affordable Care Act garnered just 50.57% of the vote in the House and 60% in the Senate–without a single Republican vote.

I repeat, it was hubris that killed the beast.

Playing Cops and Robbers–Then and Now

By , July 17, 2013 4:22 pm

When I was a kid, my neighbor friends and I formed a kind of mounted police to patrol our little domain on the west side of little Powell, Wyoming. We set up a medium-sized canvass tent on my lawn next to the street to act the part of the police station. It had a window on the side facing the street. Our dispatcher sat in the tent and, speaking through the window, gave us assignments when we drove up on our bicycles to ask for instructions.

We had attached long dowels to the back axels on our bikes–think antenna. I can’t remember for sure, but I wouldn’t be surprised if we wore some sort of uniform or badge, or something besides the dowels that would tell the people of our neighborhood to be careful because we were watching.

I remember driving down Carey Street on my bike that day and noticing some branches lying in the street. A man was walking on the sidewalk nearby. I must have assumed that he had left the branches there because I ordered him to pick them up. No, he didn’t obey my command. Being a good cop, I picked them up and reported my good deed–and he man’s disobedience–to the dispatcher.

I thought of this experience as I read this story today.

Kids do and say the darndest things all too often. And then there are the times they do great things. This story is about one of those times. The two 15 year olds deserve a medal and then some–though the hugs Temar Boggs (and I assume Chris Garcia) received for his efforts are worth quite a bit.

Update: Another video on the incident.

What if?

By , July 15, 2013 11:09 am

What if NBC had not doctored the recording of George Zimmerman’s telephone conversation with the police, you know, to make it sound like Zimmerman had told the police–unsolicited–that Trayvon Martin was black, which gave the impression that he was racially profiling Martin?

What if the media had referred to Zimmerman as Hispanic rather than White-Hispanic from the get go.?

What if the public had known early on that Zimmerman was 1/8 black, that he mentored black children?

What if the media had looked behind the gates of the gated community Zimmerman lived in?

What if some talking heads hadn’t speculated about a supposed “racial slur” uttered by Zimmerman, a slur that actually wasn’t?

What if the public had understood that the police initially had, in fact, arrested Zimmerman, handcuffed him, and taken him to the police station?

What if the media had made it clear from the outset that the evidence indicates that Zimmerman had, in fact, obeyed the police 911 dispatcher and stopped following Martin? If there had been evidence to the contrary, you’d think the state would have introduced it at trial, right?

What if the public had been made aware from the beginning that the forensic evidence supported Zimmerman’s story that Martin attacked him, that Martin was on top of him, that Martin was pounding him MMA-style, that Martin bashed his head against concrete many times, and that the only evidence of injury to Martin–other than the fatal gun shot, of course–was Martin’s bloody knuckles?

What if the media had done a better job of helping the public understand that this case was not about “stand your ground,” but was instead a case about simple self defense?

What if the prosecutor’s office had been–to put it charitably–more forthcoming about evidence in the Martin/Zimmerman case?

What if more in the media had followed Reuters’ lead in attempting to humanize a man that Florida State Attorney General Angela Corey, in full out CYA mode, continues to maintain is a “murderer” even after the not guilty verdict in a case that she never should have filed?

What if the public the media is supposed to serve, particularly that part of the public that is so outraged by the Zimmerman verdict, had actually followed the case in detail and actually had some idea of what the real case was really about?

Was Zimmerman justified in shooting Martin? The actual evidence seems to back up his version of events, but in the end, I don’t know, and neither do you.

Would the outcome have been different had their roles been reversed? Assuming Martin had had similar legal counsel working with the same evidence, I’d say yes. But I don’t know, and neither do you. If, in my hypothetical, Martin had been saddled with an overworked and underfunded public defender, then the outcome very well could have been different. But again, I don’t know, and neither do you.

Would this case have attracted the attention it has, had the media done its job, had the race hustlers remained stage right (or left, I don’t care), I think the answer would be no.

Look, the African-American community is justifiably outraged about the short straw it too often draws in our justice system. And I can understand the outpouring of sympathy and concern for Trayvon Martin’s family. His death was a tragedy. But to use George Zimmerman as a tool to root out injustice, to destroy his life in a different, but very real way in order to advance that cause is another unnecessary tragedy–or a travesty, as Zimmerman’s attorney characterizes it.

Finally, I don’t want to make this about guns. Yes, a gun was involved. A legally acquired, legally carried gun. But for a moment, let’s forget that. Let’s suppose that Zimmerman’s version of events is accurate. Let’s suppose that Trayvon was the aggressor, that he sucker punched Zimmerman, that the punch laid Zimmerman out on the ground, that Martin straddled Zimmerman’s body, pummeled him MMA style, bashed his head against solid concrete. (All this, by the way, is a reasonable inference from the actual evidence rather than from speculation.) Let’s assume that Zimmerman did indeed think his life was in danger. And let’s assume that Martin didn’t stop, and Zimmerman couldn’t stop him. Under those assumptions, Zimmerman likely could have died an equally violent death.

In other words, assuming Zimmerman’s version of events is accurate, because he had a gun, someone died. It just wasn’t him.

This sad case was not about guns. It was about self defense.

Update: I just discovered TalkLeft, a blog written, in part, by a Denver criminal defense attorney. Her post on this case is worth reading.

Saul Alinsky Hell, Someone’s Been Reading Robert Caro

By , July 9, 2013 12:53 pm

Another two thumbs up for Robert Caro’s book The Power Broker: Robert Moses and the Fall of New York. It easily ranks among the top 5 books I’ve ever read, a mesmerizing study of power in the hands of one man, the New York state and City parks commissioner. A parks commissioner!

This passage caught my attention today:

If a commissioner [of another department resisted his attempts to circumvent the law], Moses used the public rather than the private smear. “Mr. Moses told me . . . that he was able to control the press of New York City, so as to hold me up to such obloquy that I would not be able to stand it,” W. Kingsland Macy had testified a decade before. The smear technique that had been used then was used now–frequently.

In the hands of a man for whom the press acted as a gigantic sounding board, repeating and amplifying his words, the smear was a terrible weapon–particularly when those words were as caustic and cutting as Moses’. . . . (469)

How bad was it? How deep in Moses’ pocket were the press? This deep:

Mrs. Sulzberger [daughter of the founder of the New York Times, wife of the publisher in the 1930s] believed that Moses came “close to our ideal of what a Park Commissioner should be”; the Times evidently believed so, too. Its reporters and editors may never have been directly ordered to give Moses special treatment but, during the Thirties as during the Twenties, they were not so insensitive as not to know what was expected of them. Moses’ press releases were treated with respect, being given prominent treatment and often being printed in full. There were no investigating of the “facts” presented in those press releases, no attempt at detailed analysis of his theories of recreation and transportation, no probing of the assumption on which the city was building and maintaining recreational facilities and roads. The Times ran more than one hundred editorials on Moses and his programs during the twelve-year La Guardia administration–overwhelmingly favorable editorials. (461)

Just imagine what it would be like if a president of the United States had so much power and such a compliant press?

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