Re: Alternatively, maybe the whole UC system will go bankrupt, and then we won't have to decide. (Ha! I kid because I care.)

1

Does a school have to fund every possible student group? Obviously not. Given that, a school must have the right to not fund a group whose function is inimical to the school's mission, which this group self-evidently is.


Posted by: Walt Someguy | Link to this comment | 04-19-10 9:23 AM
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But plenty of schools have university-funded student groups that look discriminatory (religious groups, minority groups); is the idea that technically these groups have to admit anyone but in practice only those who fit in will join the group?


Posted by: essear | Link to this comment | 04-19-10 9:25 AM
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Given that, a school must have the right to not fund a group whose function is inimical to the school's mission, which this group self-evidently is.

This isn't wrong, but it's not exactly an easy question, when (1) the school is public and (2) the basis on which the group is "inimical to the school's mission" is purely religious.

(The school would object to that characterization, of course. The group would not. That's what they'll argue about in court.)


Posted by: Brock Landers | Link to this comment | 04-19-10 9:29 AM
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2 is pretty much where I'm getting stuck. Like, if a bunch of global-warming deniers want to join the Greenpeace student group or whatever, I can't really see a reason to stop them. Just quit the group if it gets infiltrated by people you disagree with? But that seems like a weird position.


Posted by: Stanley | Link to this comment | 04-19-10 9:31 AM
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4: I read somewhere else that the group was requiring members to sign a particular statement of beliefs in order to be a member. It seems that


Posted by: Blume | Link to this comment | 04-19-10 9:32 AM
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...I have forgotten what I was going to say.


Posted by: Blume | Link to this comment | 04-19-10 9:33 AM
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What could be clearer? They can speak and associate as freely as they want, just not on Hastings' dime.

NYT editorial:

To qualify for official recognition, and receive money from a publicly financed university, groups at Hastings are required to adhere to the school's nondiscrimination policy, which says that official student groups cannot refuse membership on the basis of race, religion, national origin, sexual orientation or other prohibited factors.
For years, the Christian Legal Society chapter at Hastings adhered to this policy. In 2004, it changed course and required members to sign a "statement of faith" that denied membership to students who did not share all of the society's religious beliefs, as well as gay students. Hastings told the society that it could not remain a recognized group and receive money from the school unless it stopped discriminating.

Posted by: mcmc | Link to this comment | 04-19-10 9:37 AM
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On NPR today they said the college requires all student organizations that they fund to have a blanket "all comers" policy. So, yeah, the Environmental Club has to allow global warming deniers in. (Think of it as a teachable moment!)

This makes me much more sympathetic to the college. The Christian group isn't being singled out because they are anti-gay, so the college doesn't have to show that being anti-gay is inimical to the school's mission.

Also mentioned on NPR: The Christain group bans all those who "advocate or participate in premarital sex."


Posted by: rob helpy-chalk | Link to this comment | 04-19-10 9:40 AM
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Per 7, I don't see what the problem is. Groups are not entitled to recognition and funding under the first amendment. They're just entitled to be a group and say stuff.


Posted by: heebie-geebie | Link to this comment | 04-19-10 9:42 AM
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It seems to me that the College's case would be much more sympathetic if they brought it on behalf of all of us who have had premarital sex and advocate and enjoy it. That's a really huge constitutency.


Posted by: rob helpy-chalk | Link to this comment | 04-19-10 9:43 AM
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There are a couple of interesting questions. First, can they exclude non-Christians (or, people who won't affirm whatever the org accepts as a statement of Christianity)? Somehow, it seems as though they should be able to.

Then, can they exclude people for their sexual orientation? Like, an openly gay person who signs the statement and affirms that all sexual activity other than heterosexual married sex is sinful, but says that they're both a 'Christian' by the org's definition, and a gay oriented person who sins and has gay sex sometimes.

If they'd try and keep that person out, that seems like a real discrimination problem.


Posted by: LizardBreath | Link to this comment | 04-19-10 9:43 AM
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7: Seems straightforward to me too.

Also, arguments that refusal to subsidize discrimination is discriminating against the people wanting their discrimination subsidized makes me want to nail people to crosses.


Posted by: apostropher | Link to this comment | 04-19-10 9:43 AM
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2, 4: You're making this harder for yourself than necessary. The argument you seem to be sympathetic to is that schools are obliged to fund all comers. But are they? Are they obliged to fund all-white fraternities? Obviously not. Are they obliged to fund non-discriminatory religious groups, or denialist Greenpeace chapters? I don't know, but that's not the question at hand. We're not trying to draw the perfect line. Whatever the right line is, this group is on the wrong side of it.


Posted by: Walt Someguy | Link to this comment | 04-19-10 9:44 AM
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What could be clearer? They can speak and associate as freely as they want, just not on Hastings' dime.

Again, I don't disagree with you, but "what could be clearer" overstates things. Is it equally as obvious to you that Hastings ought to be able to refuse to let students live in the dorms, if the students won't sign a statement of adherence to the nondiscrimination policy? (If not, what's the difference?) Could Hastings as easily refuse to let them enroll in the school altogether?

(I'm not actually troubled by a "yes" answer to either of those questions, but they don't seem like easy questions to me.)


Posted by: Brock Landers | Link to this comment | 04-19-10 9:44 AM
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Oh, I hadn't seen this: On NPR today they said the college requires all student organizations that they fund to have a blanket "all comers" policy.

Yeah, I don't think the org has a leg to stand on, then. My 'they should be allowed to exclude non-"Christians"' position was conditioned on assuming that organizations were allowed to have membership requirements at all.


Posted by: LizardBreath | Link to this comment | 04-19-10 9:45 AM
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There are a couple of interesting questions. First, can they exclude non-Christians (or, people who won't affirm whatever the org accepts as a statement of Christianity)? Somehow, it seems as though they should be able to.

They can easily do this, simply by not accepting dirty gay atheist money from the college.


Posted by: mcmc | Link to this comment | 04-19-10 9:46 AM
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Is it equally as obvious to you that Hastings ought to be able to refuse to let students live in the dorms, if the students won't sign a statement of adherence to the nondiscrimination policy? (If not, what's the difference?)

They probably require that you sign a code of conduct before living in the dorms. Is that any different?


Posted by: heebie-geebie | Link to this comment | 04-19-10 9:47 AM
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mcmc has it right.

Free speech isn't about getting an endorsement or money from the University.


Posted by: togolosh | Link to this comment | 04-19-10 9:47 AM
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On NPR today they said the college requires all student organizations that they fund to have a blanket "all comers" policy.

Agree that this completely changes things. It's also inconsistent with 7. I'm not sure which is right.


Posted by: Brock Landers | Link to this comment | 04-19-10 9:47 AM
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if the students won't sign a statement of adherence to the nondiscrimination policy

I don't think the analogy holds. Being allowed to live in the dorm doesn't allow you to deny other people the same prvilege.


Posted by: apostropher | Link to this comment | 04-19-10 9:48 AM
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The last time the Supremes ruled on this sort of thing, they said the only thing that made sense to me (and Rehnquist, no less, said it - even a busted clock, etc.): you can discriminate against nobody, or you can discriminate against everybody, but equal protection forbids discriminating against some but not others. Full stop.

m, so you can't discriminate against some Christians but not others, I think


Posted by: max | Link to this comment | 04-19-10 9:48 AM
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The Christain group bans all those who "advocate or participate in premarital sex."

I hope they follow up with the students once they marry to examine the sheets the morning after.


Posted by: Sir Kraab | Link to this comment | 04-19-10 9:48 AM
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16: I was thinking that the college would allow, say, the College Republicans to exclude anyone who wouldn't claim to be a Republican, without losing funding. If the college would allow that, then it seems reasonable to allow the Christian Legal Society to exclude non-Christians, and not allowing such exclusion seems to hold religious organizations to a different standard than secular ones.

But if the college's position is no exclusions at all, then applying that across the board seems fine.


Posted by: LizardBreath | Link to this comment | 04-19-10 9:49 AM
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Groups are not entitled to recognition and funding under the first amendment.

But if every group gets funding other than those to which the university (read: the state) has an ideological objection, that's problematic. And that's the way the student group would frame it. (I'm ignoring 8 for now, since I don't know if it's right, and if it is right, then I don't know what the group would be trying to argue.)


Posted by: Brock Landers | Link to this comment | 04-19-10 9:49 AM
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19: Why is 8 inconsistent with 7? How is "official student groups cannot refuse membership on the basis of race, religion, national origin, sexual orientation or other prohibited factors." inconsistent with all funded orgs having "a blanket 'all comers' policy"?


Posted by: mcmc | Link to this comment | 04-19-10 9:51 AM
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25: Oh, I didn't catch that one was a blanket policy and the other only applied to funded groups.


Posted by: Brock Landers | Link to this comment | 04-19-10 9:53 AM
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It's also inconsistent with 7.

Another reminder that even the most prestigious news organizations can't get basic facts straight.

Personally, I'm going to assume that NPR is right, and the NYT is wrong, because Nina Totenberg would never lie to me.


Posted by: rob helpy-chalk | Link to this comment | 04-19-10 9:55 AM
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26: The two statements sound consistent to me even if they apply to exactly the same class of organizations.


Posted by: LizardBreath | Link to this comment | 04-19-10 9:55 AM
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15
Yeah, I don't think the org has a leg to stand on, then.

I agree, but IANAL and I don't have much faith in our current judicial system either. Separation of church and state? What's that?

2
But plenty of schools have university-funded student groups that look discriminatory (religious groups, minority groups); is the idea that technically these groups have to admit anyone but in practice only those who fit in will join the group?

Some groups might just rely on making people not "fit in", but it is my impression that most groups that might look discriminatory at first glance have an "... and friends" clause or something similar in their name and description. The acronym GLBTA, for example, short for Gay, Lesbian, Bisexual, Transgender and Allies.


Posted by: Cyrus | Link to this comment | 04-19-10 9:55 AM
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Why did I waste so much time in college participating in student groups I agreed with? I should have been actively infiltrating the College Republicans, or the conservative monthly newsrag (which was hilariously named The Advocate, by the by) and funnin' 'em.


Posted by: Stanley | Link to this comment | 04-19-10 9:56 AM
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The decision of the court of appeals, which the Supreme Court is reviewing, is one paragraph long:

The parties stipulate that Hastings imposes an open membership rule on all student groups--all groups must accept all comers as voting members even if those individuals disagree with the mission of the group. The conditions on recognition are therefore viewpoint neutral and reasonable.

(Citation omitted.) Somewhat disquieting that the Court decided to take the case, frankly, unless the court of appeals got the facts badly wrong (which doesn't usually prompt review).


Posted by: widget | Link to this comment | 04-19-10 9:56 AM
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I would guess the group would in that case be trying to argue that the school has no meaningful interest in the "all-comers" policy (what's the point, really? the non-discrimination policy I understand), and that it infringes on their religious beliefs. But it's a tough argument.


Posted by: Brock Landers | Link to this comment | 04-19-10 9:56 AM
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19: Why is 8 inconsistent with 7? How is "official student groups cannot refuse membership on the basis of race, religion, national origin, sexual orientation or other prohibited factors."

The implication in the way the Times put it is that there are some grounds under which student organizations can exclude members.


Posted by: rob helpy-chalk | Link to this comment | 04-19-10 9:57 AM
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28: Thank you LB, I thought I was losing my mind for a minute there.


Posted by: mcmc | Link to this comment | 04-19-10 9:57 AM
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2, 4: You're making this harder for yourself than necessary. The argument you seem to be sympathetic to is that schools are obliged to fund all comers. But are they? Are they obliged to fund all-white fraternities? Obviously not. Are they obliged to fund non-discriminatory religious groups, or denialist Greenpeace chapters? I don't know, but that's not the question at hand. We're not trying to draw the perfect line. Whatever the right line is, this group is on the wrong side of it.

I wasn't argued on the basis of what they're obliged to do, but rather what schools, in general, do. Which includes having official student groups that appear discriminatory in some way, like, say, a Chinese Students' Association, or a Hillel chapter. But now it seems clear that the difference is that these are formally open -- it's unlikely someone who isn't Jewish would want to participate in Hillel, but it could happen in principle. Since this group is explicitly excluding people based on religious beliefs, they run afoul of the rules.


Posted by: essear | Link to this comment | 04-19-10 9:57 AM
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31: NPR was right! Yay Nina!


Posted by: rob helpy-chalk | Link to this comment | 04-19-10 9:59 AM
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28: well, not strictly logically inconsistent, I guess, but the first policy would be completely superfluous. It would be pretty odd to have two separate policies, one saying "official student groups cannot refuse membership on the basis of race, religion, national origin, sexual orientation or other prohibited factors" and the other saying "official student groups cannot refuse membership to anyone for any reason", right? It could happen as a historical accident, if the second rule were written without the first being deleted, but then the second rule is really the school's "policy"--the first is meaningless.


Posted by: Brock Landers | Link to this comment | 04-19-10 10:00 AM
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But it's a tough argument.

Sure is. The point of the 'all comers' policy I can see is that if you're going to take school money, you can't withhold the benefits of it from any of your fellow students; an organization that's exclusionary on any grounds has to fund itself. Imagine a socially obnoxious and exclusive club that won't let the uncool or badly dressed in -- why should the school fund it?

It's not an inevitable policy, I could imagine a school funding exclusionary organizations, but it makes sense even in the absence of literal discrimination.


Posted by: LizardBreath | Link to this comment | 04-19-10 10:00 AM
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Somewhat disquieting that the Court decided to take the case

This makes me think that I'm missing something important, and yet I can't for the life of me see what it is. Or else the Supremes are about to get all activist.


Posted by: mcmc | Link to this comment | 04-19-10 10:01 AM
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But the group in its Supreme Court brief (see pp. 14-15, 19-20) says that's not really the policy as it's ever been enforced and that the school has changed its position in the course of the litigation.


Posted by: widget | Link to this comment | 04-19-10 10:05 AM
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And with 40, the case makes more sense.


Posted by: Brock Landers | Link to this comment | 04-19-10 10:06 AM
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I could imagine a school funding exclusionary organizations

For instance, sports teams for which one has to be good at the sport to participate.


Posted by: essear | Link to this comment | 04-19-10 10:10 AM
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Antisemites!


Posted by: heebie-geebie | Link to this comment | 04-19-10 10:12 AM
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How is this supposed to be different from Truth v. Kent School District? That seemed to decide basically the same issue.


Posted by: Minivet | Link to this comment | 04-19-10 10:12 AM
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"Imagine a socially obnoxious and exclusive club"

Like the football team?


Posted by: Ginger Yellow | Link to this comment | 04-19-10 10:14 AM
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>>"Imagine a socially obnoxious and exclusive club"

>Like the football team?

Like the tenure-tracked? (Ha! Kidding again of course, professor friends.)


Posted by: Stanley | Link to this comment | 04-19-10 10:19 AM
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It looks like the 9th Circuit based its ruling in this case entirely on Truth v. Kent School District. The Christian club is arguing that there's a circuit conflict, among other problems.


Posted by: Bave Dee | Link to this comment | 04-19-10 10:19 AM
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Unsurprisingly, the school disagrees, and says in essence that the group is making things up and that the Court should toss the case without reaching the merits.

To 40, what still doesn't make sense is that the Court decided to review a case in which it looks like the key interesting question in dispute is a factual question, not a legal question. Usually the Court doesn't consider that kind of error by a lower court (assuming there's any error here) worth its time to correct. Could be that the nature of the case wasn't clear at the certiorari stage, of course.

If four (or more) Justices took the case because they thought there were five (or more) votes to hold that an all-comers policy like the one the school says it has violates the First Amendment, that's interesting.


Posted by: widget | Link to this comment | 04-19-10 10:20 AM
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I'm actually shocked that the group is enforcing its membership. At my college, the Christian clubs were often attended by curious outsiders, and even a few trolls, because evangelical Christians are supposed to want the opportunity to talk to those folks. In fact, they were far more aggressive about getting non-Christian members than, say, the Muslim Students group or the Asian American Alliance, which both had a lot of white dudes in them.


Posted by: A White Bear | Link to this comment | 04-19-10 10:36 AM
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49: I seriously doubt they're strictly enforcing their membership requirements, for the reasons you state. I bet they're just excluding openly gay people. (Too much temptation.)


Posted by: Brock Landers | Link to this comment | 04-19-10 10:40 AM
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That is, I think the group is only doing that so they can get some media attention for being put-upon Christians in a Christian-hating society. It's really not normal for evangelical groups to exclude non-Christians.


Posted by: A White Bear | Link to this comment | 04-19-10 10:40 AM
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50: They're excluding anyone who won't sign their Statement of Belief or whatever it's called. I would guess that means no committed Muslims or Jews. Although why such a person would wish to join this group is beyond me. Was it meant to weed out Catholics? Jehovahs Witnesses? I want to read this credo of theirs.


Posted by: mcmc | Link to this comment | 04-19-10 10:45 AM
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According to their brief (linked above, see p. 5), anyone is free to attend meetings but you have to sign a statement of faith to be an officer or voting member, or to lead a Bible study session. They play up the importance of leading the study sessions to the case, I assume because that's their most direct link to expressive / religious activity.


Posted by: widget | Link to this comment | 04-19-10 10:46 AM
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What I really hate is the waste of political, intellectual, and legal energy involved in having the Supreme Court waste time on bullshit like this. The conservative Christian group wins, because it gets to paint itself as a victim of discrimination by the liberal, secular elite. The gay and lesbian alliance on campus wins because it gets a cause to galvanize its members. The Supreme Court and its clerks win because they get to look at a fun case with facts that look like they come out of some ethical puzzle-solver book. Everyone has a fun time doing battle over symbols in the culture war.

Meanwhile, does it in fact affect anyone seriously that the right-wing Christian club at Hastings does not want to accept gay members? No, it does not. There are really consequential legal problems out there, and this is not one of them. It is ridiculous that we have an entire Supreme Court jurisprudence devoted to student religious groups.


Posted by: Robert Halford | Link to this comment | 04-19-10 10:49 AM
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51: Since this is a law school, I thought they might be doing this strategically to provoke a test case.


Posted by: Minivet | Link to this comment | 04-19-10 10:49 AM
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49: It is the Christian Legal Society. Wanna bet they aren't actually interested in enforcing their exclusionary policy, they just want the test case?


Posted by: LizardBreath | Link to this comment | 04-19-10 10:49 AM
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Clearly designed to keep out the Unitarians!

One God, eternally existent in three persons, Father, Son and Holy Spirit.

God the Father Almighty, Maker of heaven and earth.

The Deity of our Lord, Jesus Christ, God's only Son, conceived of the Holy Spirit, born of the virgin Mary; His vicarious death for our sins through which we receive eternal life; His bodily resurrection and personal return.

The presence and power of the Holy Spirit in the work of regeneration.

The Bible as the inspired Word of God.


Posted by: mcmc | Link to this comment | 04-19-10 10:51 AM
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That is, I think the group is only doing that so they can get some media attention for being put-upon Christians in a Christian-hating society.

This seems to me quite a reasonable hypothesis. Being a victim of Big Homo is a ticket to major credibility on the evangelical right, and with that comes the potential to make a lot of money.


Posted by: togolosh | Link to this comment | 04-19-10 10:57 AM
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Clearly designed to keep out the Unitarians!

And the mormons.


Posted by: Jackmormon | Link to this comment | 04-19-10 10:57 AM
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Clearly designed to keep out the Unitarians!

And the mormons.

In high school, a Mormon, a Jew, and I (a Unitarian) boycotted the religious baccalaureate service. We tried to make up some jokes about walking into bars, etc., but I don't recall that we came up with any good ones.


Posted by: Sir Kraab | Link to this comment | 04-19-10 11:04 AM
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The Christian club is arguing that there's a circuit conflict, among other problems.

What does this consist in, anyway? If the court in one circuit can't just adopt the decision of a court in another circuit, why can't they just adopt the reasoning of the trans-circuit court?

(Well, perhaps that reasoning depended on other decisions in the same circuit, and some disagreement would emerge between the circuits if one tried to iterate the procedure.)


Posted by: nosflow | Link to this comment | 04-19-10 11:20 AM
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A circuit split means that two circuit courts have come down differently on the same issue, so there are contradictory precedents that govern different parts of the country. It's one of the reasons why the SCt will be inclined to grant certiorari on a given issue, although there are very important circuit splits that the Court sometimes lets fester for decades.


Posted by: Robert Halford | Link to this comment | 04-19-10 11:33 AM
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oic.


Posted by: nosflow | Link to this comment | 04-19-10 11:35 AM
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Lyle Denniston's report on oral argument at SCOTUSblog tends to show that the Justices -- including Justice Kennedy -- were, in fact, confused about the facts when the argument started, and it doesn't look like the lawyers succeeded in unconfusing them.

From that report, I wouldn't be surprised to see certiorari dismissed as improvidently granted (which means the Court decides it made a mistake in taking the case and doesn't want to hear it after all). Though Denniston also seems to think there's a chance of a remand (that is, the case being sent back down to the court of appeals) for factual clarification, which would keep the case alive.


Posted by: widget | Link to this comment | 04-19-10 11:53 AM
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64 -- Oh good, even more of a waste of time.

For the nonlawyers, the SCT hears about 60 cases per term. Was this one of the 60 most consequential or legally important cases in the country? Nope.

I really think that the presence of these cases is heavily due to the fact that the justices have clerks who are only a few years out of law school.


Posted by: Robert Halford | Link to this comment | 04-19-10 11:54 AM
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64: Respondent's brief claims that the parties stipulated to the facts, including that the law school's policy was that all organizations must take all comers. You wouldn't think that would be the case from reading petitioner's brief, but it's the sort of thing that I can't really imagine respondent saying if it wasn't true.


Posted by: LizardBreath | Link to this comment | 04-19-10 11:56 AM
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Meanwhile, does it in fact affect anyone seriously that the right-wing Christian club at Hastings does not want to accept gay members? No, it does not.

Will nobody think of the future Andrew Sullivans?


Posted by: Ginger Yellow | Link to this comment | 04-19-10 12:02 PM
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66: They did stipulate. I'll quote petitioners' response on this point from the reply:

Stipulations cannot be stretched beyond their words. We stipulated to the existence of an all-comers policy, Joint Stipulation 18, JA-221, but we never stipulated that the all-comers policy predated discovery, is non-pretextual, or displaces the written Policy. Nor did we stipulate that the all-comers policy was ever enforced against a student group, or that it was the rationale Hastings gave when excluding CLS from the forum.

See Page 2.

I don't think that passes the smell test. They stipulated to it, they lost, and then they decided to try again with different facts.


Posted by: widget | Link to this comment | 04-19-10 12:07 PM
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they decided to try again with different facts.

I do that all the time.


Posted by: nosflow | Link to this comment | 04-19-10 12:09 PM
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Good thing you're a philosopher.


Posted by: Bave Dee | Link to this comment | 04-19-10 12:18 PM
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55, 56: I thought it was pretty much assumed that this was part of a national strategy to provoke test cases. The National organization has been involved in several challenges at other law schools and this one arose when the local Hastings chapter affiliated with the National group.

From the AP report on the oral argument, Chief Justice John Roberts and Justice Samuel Alito questioned the school's lawyer sharply, saying that being forced to admit someone who doesn't share their beliefs was a threat to the group. But Justices Ruth Bader Ginsburg and Sonia Sotomayor pressed the group's lawyer on notion that if they can ban gays, other groups can legally ban women and minorities. I think the only question is whether this particular challenge comes with too much baggage for the Roberts/Alito gang to push it hard.


Posted by: JP Stormcrow | Link to this comment | 04-19-10 12:23 PM
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Related, I know Sarah Palin's current talking point is neither new nor surprising, but for fuck's sake:

Lest anyone try to convince you that God should be separated from the state, our founding fathers, they were believers.

Even though they said Congress should make no law regarding the establishment of religion, the fact that they* believed in god proves that they meant to create a rightwing Christian theocracy.

*Jefferson, of course, was a dirty hippie Christ denier marginalized by the other founders and succeeding generations.


Posted by: Sir Kraab | Link to this comment | 04-19-10 12:26 PM
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72. -- The originalist case for a strong degree of separation between church and state is pretty weak -- I mean, there was in fact established religion at the state level in th United States until the 1820s, and reading was taught in public schools primarily by bible-reading well into this century. I'm not an originalist, so that doesn't bother me much, but Palin's not wrong that the founding generations would have tolerated a much greater degree of church-government intermingling.


Posted by: Robert Halford | Link to this comment | 04-19-10 12:33 PM
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Jefferson

WHO?


Posted by: OPINIONATED TEXAS TEXTBOOK | Link to this comment | 04-19-10 12:34 PM
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Reading the extended quote from the link in 72, the most interesting part, to me, is how coherent and comprehensible the entire thing is. Her remarks are substantively crazy, but it's clear she knows what she's talking about, and is comfortable standing on front of a crowd with a microphone in her face and saying it. Usually it's difficult to connect the dots from one of her sentences to the next--or even from the beginning of a sentence to its end--but this is several paragraphs of clear thought.

I'd thought she was just an incomprehensibly bad public speaker, but I guess that's not it--she must really just know absolutely zero about policy-related issues, and freeze up completely/fall back on talking points (not gracefully) when she's out of her element.


Posted by: Brock Landers | Link to this comment | 04-19-10 12:38 PM
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73: You just cited 12 times as many facts as Palin knows about the founders, the Constitution, and American history. (I'm not, btw, calling Palin stupid; she chooses not to know these things.)


Posted by: Sir Kraab | Link to this comment | 04-19-10 12:41 PM
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it's clear she knows what she's talking about

She has already proven that she can read a speech. You don't honestly believe that she wrote it, do you?


Posted by: apostropher | Link to this comment | 04-19-10 12:43 PM
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Separation of church and state is meant to protect churches as well as the state. This "oh you know like judeochristian" stuff is bullshit, and they know it.


Posted by: A White Bear | Link to this comment | 04-19-10 12:43 PM
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73 - Isn't the rise of a strong church-state separation mostly due to the influx of urban Catholics after the Civil War? Can't have dirty micks teaching their children Papist dogma in the schools, you know!


Posted by: snarkout | Link to this comment | 04-19-10 12:44 PM
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Oh, I wasnt trying to actually defend Palin, who is a despicable idiot with an evil agenda.


Posted by: Robert Halford | Link to this comment | 04-19-10 12:46 PM
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77: oh, nevermind, comment retracted--I didn't even realize it was a prepared speech. I thought these were Palin's off-the-cuff remarks.


Posted by: Brock Landers | Link to this comment | 04-19-10 12:47 PM
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Separation of church and state is meant to protect churches

Wasn't it one of the UK commenters here who remarked jokingly that if the US had only let the government and church comingle a bit more, we'd be wholeheartedly weak-sauce Anglicans by now? Or was that elsewhere that I read/heard that?


Posted by: Stanley | Link to this comment | 04-19-10 12:49 PM
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77: That was the most surreal thing about the whole '08 campaign, watching pundits on TV puzzle over how she did "so well" on the acceptance speech and then so badly in interviews. Are these people surprised that Matt Damon can't actually solve prize-winning math problems and Tom Cruise is not a good jet fighter pilot? (And the answer to that is of course, no, which points to an even deeper rot in the current media system.)


Posted by: JP Stormcrow | Link to this comment | 04-19-10 12:50 PM
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The answer to 79 is, as far as I know, yes -- separating of church and state seemed like much bigger issue to the Protestant majority when you had large local jurisdictions that were heavily Catholic.


Posted by: Robert Halford | Link to this comment | 04-19-10 12:55 PM
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Amen to 54.1.

I really think that the presence of these cases is heavily due to the fact that the justices have clerks who are only a few years out of law school.

That's kind of horrifying. I sort of suspected this, but I put it down to my own ignorance and paranoia. It's very scary to hear that an actual lawyer who has professional reasons to pay attention to this issue thinks it might be true.


Posted by: Witt | Link to this comment | 04-19-10 1:00 PM
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And I agree with 78 as well.

I just can't get too worked up about most of these manufactured controversies over symbols. Oh no some idiot in Alabama wants to play to his base by erecting a giant tacky stone monument to the ten commandments. Sure, that's gross, but does it really matter very much? No. Same thing with the school clubs and the Pledge of Allegiance.


Posted by: Robert Halford | Link to this comment | 04-19-10 1:00 PM
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What cracks me up about the Ten Commandments is that Moses with tablets is all over the NY courthouses, and no one cares.


Posted by: LizardBreath | Link to this comment | 04-19-10 1:02 PM
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80: Yeah, I didn't think you were. It's just one more piece of ridiculousness that there is contested and interesting history (on this and other issues about which Palin et al. get their panties in a twist) but her best argument is "'cuz they believed in god."


Posted by: Sir Kraab | Link to this comment | 04-19-10 1:05 PM
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Litigation as theater. We have a case here right now that fits the bill. The Leg, last year, passed a law that asserts state jurisdiction over firearms made in MT, and not sold across state lines. See, if they're not in interstate commerce, then the federal statutes won't apply. Right?

Proponents of this bill -- manufacturers? -- have sued the US in federal court. Six or seven states have joined in. The NRA is staying out of it: apparently they don't want to look like losers.

I wish I could trade in lawsuit futures. Does anybody really think that when this gets to the Ninth Circuit, it'll get more than a paragraph?


Posted by: CharleyCarp | Link to this comment | 04-19-10 1:15 PM
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86
Oh no some idiot in Alabama wants to play to his base by erecting a giant tacky stone monument to the ten commandments. Sure, that's gross, but does it really matter very much? No.

Well, sure, the newsmedia does give disproportionate focus to random isolated incidents. This is partly due to the incompetence, herd mentality and other flaws deeply rooted in our modern media but it's also more or less inevitable with nationwide media outlets. However, if you're saying that these incidents matter less than the missing white girl of the week or the fate of some sports team, that's ridiculous.

87: a Political Science class I took in college called "Freedom and the First Amendment" was about this whole kind of thing. On the first day of class, the teacher (or maybe it was the first section taught by a TA, I don't remember) began with an anecdote about some Massachusetts courthouse which had statues to notable historical lawmakers, including Cyrus and Solon and whoever signed the Magna Carta and, of course, Moses. There was a legal challenge, the people that had put up the statues won on the grounds that they were honoring a whole bunch of lawmakers rather than just mythical Judeo-Christian ones, and the students were asked what we thought of it. Most of the people willing to speak up in class said we understood the reasoning or whatever, but after a few minutes, the instructor revealed the twist: it wasn't in Massachusetts, it was in Texas. Which completely changes the meaning!


Posted by: Cyrus | Link to this comment | 04-19-10 1:17 PM
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73: But what has a stronger case based on originalism? There's the First Amendment, of course. Jefferson coined the phrase as far back as 1802.


Posted by: Walt Someguy | Link to this comment | 04-19-10 1:18 PM
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86: Yes, it matters. Ten commandments displays in the wrong context send a clear message about who does and does not belong. They have the effect of marginalizing people who are not Jewish or Christian, and that is the clear intent of people like Roy Moore. Symbols do matter.

87: Is it Moses in isolation, or in the context of a larger display of famous historical lawgivers, like the Supreme Court mural? The latter is unobjectionable to me. The former cries out for defacement. The presence of Moses with the tablets on the SC mural is regularly used by Christianists to advocate for more Ten Commandments monuments, ignoring the context completely. There's also the fact that Moses isn't the Ten Commandments - a leader and lawgiver is arguably relevant to a courthouse, but a set of laws the first four of which are explicitly forbidden by the US constitution is pretty obviously not.


Posted by: togolosh | Link to this comment | 04-19-10 1:21 PM
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you can discriminate against nobody, or you can discriminate against everybody, but equal protection forbids discriminating against some but not others. Full stop.

wtf does this mean? discriminating means letting some in, but not others. how can you discriminate against everyone?


Posted by: yoyo | Link to this comment | 04-19-10 1:22 PM
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93: Admission fees everyone must pay? Some kind of test or merit-based qualification in which everyone is on an equal footing (assuming time to train, etc.)?


Posted by: Cyrus | Link to this comment | 04-19-10 1:26 PM
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91 -- As far as I know -- and I'm not a scholar or even particularly knowledgeable on this issue beyond a little reading -- the best current thought on the original purpose of the establishment clause was that it was designed to prevent the federal government from picking among the different religions established at the state level and applying that to the federal government -- it was largely a state-protective measure that prevented discrimnation by the federal government, not a general mandate for a secular government. Remember, the 1st amendment didn't apply to the states then, and many states had different established religions.

Of course, current doctrine (not established until the 1940s) is that the 14th amendment incorporated the establishment clause so that it applies to the states and not just the federal government. But there's no evidence that the framers of the 14th amendment -- post-Civil War Republicans, many of them strongly evangelical Christians-- saw that amendment as mandating a strongly secular government, either.

And Jefferson used the "wall of separation between church and state" language in a private letter, not some kind of official pronouncement.


Posted by: Robert Halford | Link to this comment | 04-19-10 1:33 PM
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so...equal protection forbids an admission fee that only those who fail the merit test have to pay?


Posted by: yoyo | Link to this comment | 04-19-10 1:39 PM
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Wow, that was spectacularly badly written, but whatta ya gonna do.


Posted by: Robert Halford | Link to this comment | 04-19-10 1:39 PM
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95
And Jefferson used the "wall of separation between church and state" language in a private letter, not some kind of official pronouncement.

If the "original intent" of the drafters of some law is considered to be important to some school of thought, then private correspondence (assuming no linguistic drift in meaning, assuming the writer isn't being sarcastic, etc., of course) seems like a perfectly good way to get an idea of what that intent is. And the Treaty of Tripoli actually is an official pronouncement.


Posted by: Cyrus | Link to this comment | 04-19-10 1:42 PM
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96: it probably forbids that, unless the merit test was scrupulously perfectly designed to be fair and accessible to all, but IANAL.


Posted by: Cyrus | Link to this comment | 04-19-10 1:47 PM
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Kobe!


Posted by: Stanley | Link to this comment | 04-19-10 1:48 PM
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Well, but the Traty of Tripoli didn't apply to the states, either. And it only provided that the US government had a secular, not a religious, origin. It doesn't really shed much light on whether the founders or people more close to the founders would have separated out religion from all public life in the manner of modern secularists -- there's plenty of evidence that the founders tolerated a degree of religious entwinement with the gvernment much greater than we have today.

As I say, I'm not an originalist, so I'm perfectly OK with saying that the 1st Amendment as it should be interpreted today in a more pluralist and secular society requires secularism that is broader than the founders would have envisioned. Times change and the meaning of texts has to be interpreted from where we sit today.


Posted by: Robert Halford | Link to this comment | 04-19-10 1:52 PM
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95: I think that's broadly right. So we had separation of church and the national government, not individual states, and the meaning drifted. But I don't see how it particularly stands out in that regard. Is there an issue of Constitutional interpretation that's drifted less? There are a few that won't drift at all since they are procedural, like a Article 1, Section 2, but freedom of religion doesn't seem like a particularly noteworthy example of dramatic drift. Nothing like the commerce clause, say.


Posted by: Walt Someguy | Link to this comment | 04-19-10 1:55 PM
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If people were really serious about originalism as it relates to the founders - and technically, it should be about the framers not the founders - they'd talk more about what the obscure guys have said instead of going with the famous quotes from the famous men. Anyway, there were debates over originalism in the 1790s. It's not like the Constitution was some big consensus document; it was full of compromises. I suppose this is a problem faced by most attempts to analyze intent.


Posted by: fake accent | Link to this comment | 04-19-10 2:02 PM
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Well, as a non-originalist, I completely agree with you about the fact (I'd even say the necessity) of drift. I'm not sure of how to rank comaprative drift, though -- the commerce clause drifted a lot less if you take John Marshall's view as "original" than if you take Jefferson's.


Posted by: Robert Halford | Link to this comment | 04-19-10 2:03 PM
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Actually, didn't Jefferson use "wall of separation" in a letter written from France?* Can things be any more suspect than that?

*I think when Virginia dis-establishishishished, Jefferson was in France and Madison + the Baptists were the people doing the actual work.


Posted by: fake accent | Link to this comment | 04-19-10 2:05 PM
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13,100 Google results for ""comaprative". I like the way it sounds.


Posted by: JP Stormcrow | Link to this comment | 04-19-10 2:10 PM
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We comaprative people can act like prats even if we're in a coma.


Posted by: Cryptic ned | Link to this comment | 04-19-10 2:12 PM
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I'd plead use of an Iphone in my defense, but the Supreme Court hasn't established whether that defense is available because they're spending their time on manufactured controversies created by law students.


Posted by: Robert Halford | Link to this comment | 04-19-10 2:13 PM
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That stipulation challenge looks like the work of law students, that's for sure. I bet they didn't try that with the district judge.


Posted by: CharleyCarp | Link to this comment | 04-19-10 2:15 PM
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92.2: Oh, it's Moses surrounded by Solon, and Hammurabi, and King Edward, and some Pilgrim dude -- exactly what you'd think was unobjectionable. But that's what cracks me up: look, if you want the ten commandments in your courthouse, it's okay, you just can't be a jerk about it.


Posted by: LizardBreath | Link to this comment | 04-19-10 2:34 PM
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110. Which King Edward, ffs? I can't think of any King Edward in history (except maybe the potato) I'd trust with the legal nous to defend me on a speeding ticket.


Posted by: OFE | Link to this comment | 04-19-10 2:38 PM
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111: Edward I, known as the Lawgiver, although for the life of me I can't remember why specifically. But he must have come up with some laws in between Hammering the Scots.


Posted by: LizardBreath | Link to this comment | 04-19-10 2:40 PM
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some Pilgrim dude

If it's Roger Williams, my opinion of New York will materially improve.


Posted by: CharleyCarp | Link to this comment | 04-19-10 2:41 PM
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He invented the King's Bench, fwiw, which I suppose is some sort of qualification. As far as I remember, basically it was a power grab against the feudal magnates. I don't think his legislative record was especially golden; he's best remembered for a Statute of Labourers which attempted to depress wages by fiat, and was about as successful as you'd imagine. I've certainly never heard him called "the Lawgiver" before. He's usually referred to as Longshanks.


Posted by: OFE | Link to this comment | 04-19-10 2:46 PM
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I'll look up at the rotunda at 60 Centre St. next time I have an appearance in NY County Supreme and check -- Google images isn't giving me an image big enough to read


Posted by: LizardBreath | Link to this comment | 04-19-10 2:46 PM
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||

It's really cracking up my inner thirteen year old that the pistachios I bought at lunch are this brand.

"Hey! I've got everybody's nuts right here in this bag!"

|>


Posted by: Stanley | Link to this comment | 04-19-10 2:52 PM
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From Our Island History (is this what the whole thing is like?)

Edward I. has many names: Edward of Westminster, because he was born there; Edward Longshanks, because he was very tall and his legs were long and thin; Edward, the Hammer of Scots, because of the many battles he fought with them; but the name by which it is best to remember him is Edward, the Lawgiver. He earned this name by the many wise laws which he made. Although his people were not always pleased with these laws at first, they generally came to see that they were just and good.

Posted by: JP Stormcrow | Link to this comment | 04-19-10 2:58 PM
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I've been going through some old family slides and found one of my sister when she was 12 or so with the 1st amendment poster she'd made for a contest. (I think you could pick any of the amendments; maybe just any part of the 1st.) Hers was about the "freedom of religion" (so that's not exactly what the establishment clause says; she was 12, people!!) and had a picture of a church, a temple, etc., as well as a picture of people out in a fishing boat to illustratethe freedom to not participate in any religion. And she won a prize! Take that, originalists.


Posted by: Sir Kraab Longshanks | Link to this comment | 04-19-10 6:12 PM
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If anyone is interested, Dahlia Lithwick has a report on the oral argument up. Not terribly substantive -- mostly she was struck by how adversarial the Justices were.

To 65.3 and 85.2-3, I wouldn't put it as strongly as RH did. There are certainly arguments to be made against the clerks' role in evaluating petitions for certiorari, but I don't think that you can pin on the clerks the Court's interest in culture-warrior cases that involve arguably petty symbolism. There are a sizable number of Justices who just think these issues are important. Certainly Scalia and Thomas do, probably Roberts and Alito as well, and on the other side maybe Stevens and until recently Souter. Kennedy also for cases with a speech-protection or associative element, although I'm not sure he cares as much about the purer free-exercise or establishment issues (he may, I'm just not sure about it).

Now, the clerk who was writing the memo on this case should have noticed that a dispute over the extent of a case-specifc stipulation could well keep the Court from saying anything interesting, and if that wasn't conspicuously flagged for the Justices' attention, then shame on the clerk.


Posted by: widget | Link to this comment | 04-19-10 6:59 PM
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In other Supreme Court news, I'll steal this entire excerpt from Digby:

During oral arguments today in the case City of Ontario v. Quon, which considers whether police officers had an expectation of privacy in personal (and sexually explicit) text messages sent on pagers issued to them by the city, the justices of the Supreme Court at times seemed to struggle with the technology involved.

The first sign was about midway through the argument, when Chief Justice John G. Roberts, Jr. - who is known to write out his opinions in long hand with pen and paper instead of a computer - asked what the difference was "between email and a pager?"

Other justices' questions showed that they probably don't spend a lot of time texting and tweeting away from their iPhones either.

At one point, Justice Anthony Kennedy asked what would happen if a text message was sent to an officer at the same time he was sending one to someone else.

"Does it say: 'Your call is important to us, and we will get back to you?'" Kennedy asked.

Justice Antonin Scalia wrangled a bit with the idea of a service provider.

"You mean (the text) doesn't go right to me?" he asked.

Then he asked whether they can be printed out in hard copy.

"Could Quon print these spicy little conversations and send them to his buddies?" Scalia asked.

Oh, my...


Posted by: Brock Landers | Link to this comment | 04-21-10 12:20 PM
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120's hilarious and scary all at once.


Posted by: Stanley | Link to this comment | 04-21-10 12:26 PM
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Mitterand was fascinated by a mouse, and GHW Bush by a supermarket scanner. I think that this is privilege, not technology avoidance as such.

Except for Scalia's questions, which suggest a pretty deep lack of curiosity about everyday technology.


Posted by: lw | Link to this comment | 04-21-10 12:31 PM
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122: I figured Scalia's deal is that he's an evil robot from the future and steers clear of other electronics to avoid the EMI/RFI.


Posted by: Stanley | Link to this comment | 04-21-10 12:34 PM
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"What is the difference between an email and a pager?" is pretty fanastic. I can't really imagine how to go about starting to answer it, especially given the tight time constraints of oral argument.

"What is the difference between a library book and a sonnet?"


Posted by: Brock Landers | Link to this comment | 04-21-10 12:38 PM
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"Do you walk to school, or take your lunch?"


Posted by: LizardBreath | Link to this comment | 04-21-10 12:39 PM
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You think the justices would have asked their clerks a few of these questions before the oral argument, just so they could understand the briefs.


Posted by: Brock Landers | Link to this comment | 04-21-10 12:41 PM
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Amusingly, while Scalia, Roberts and Kennedy are frighteningly ignorant of technology, Alito apparently isn't.

It wasn't just the justices who had technical difficulties. When Justice Samual Alito asked Quon's attorney Dieter Dammeier if officers could delete text messages from their pagers in a way that would prevent the city from retrieving them from the wireless carrier later, Dammeier said that they could.
A few minutes later, Alito gave Dammeier another shot at that question.
"Are you sure about your answer on deletion?" Alito asked.

122
Mitterand was fascinated by a mouse, and GHW Bush by a supermarket scanner. I think that this is privilege, not technology avoidance as such.

I hate to defend a Bush, but Snopes says that the supermarket scanner story isn't nearly as bad as it sounds. (Other writers say he was "curious and polite, but hardly amazed", and that the scanner being demonstrated was the flat kind that's used both for weighing stuff and for scanning bar codes, which actually was new at the time.) These SC quotes seem worse.

124: "An e-mail is like a phone call - not the phone itself, or the cord connecting it to the wall, but the actual call - while a pager is like a TV."

No, maybe a pager is more like a doorbell. Or a ham radio.


Posted by: Cyrus | Link to this comment | 04-21-10 12:54 PM
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Hmmm. Sorry about the nested blockquotes. I previewed it with tags around the whole thing and only the first paragraph was indented. So I added the blockquote tag before each paragraph and didn't bother closing the tags after each, because I assumed that they would all close naturally at the end of the paragraph, right? Stupid comment system.


Posted by: Cyrus | Link to this comment | 04-21-10 12:57 PM
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A pager is like a whale, whereas an e-mail is like a balloon.


Posted by: Sifu Tweety | Link to this comment | 04-21-10 12:57 PM
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I think that this is privilege, not technology avoidance as such.

A 50-something lawyer in 2010 who writes his opinions in longhand? Bullshit that's not technology avoidance as such, and very much of a piece with his poor son's shorts suit at the asshole's swearing-in. He's out to show the world how substantive he is by not being distracted by passing fads like information technology and pants.


Posted by: Not Prince Hamlet | Link to this comment | 04-21-10 1:00 PM
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130: or he's out to out-blueblood the bluest blooded bluebood that ever bled blue in Boston out of some weird sense of competitive inferiority.


Posted by: Sifu Tweety | Link to this comment | 04-21-10 1:02 PM
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Aside from the size and constraints on the content, I don't think I could give an intelligent answer to the difference between an email and a page. Or actually an SMS and an email-- exactly what's different in how the message is relayed from device to carrier to carrier to device between those? Are transmission failures and deletion by recipient treated differently for the protocols?

It might be a stupid question, but it might not. Do the justices ask vague questions to get counsel off script? If they don't , then maybe that's also a dumb question.


Posted by: lw | Link to this comment | 04-21-10 1:03 PM
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... Aaand from following a link in Digby's comments, apparently some of those quotes are taken out of context as well.

The [pagers vs. e-mail question] on its own is laughable, but in my recollection, JGR was asking about the difference in policy and protocol for pagers and emails in their treatment by the City of Ontario police department.

Also according to that link, Thomas has apparently said "Google. You should Google it. You can Google it on your Blackberry," when asked about the provenance of a quote, so presumably he's technologically-literate. The other stupid questions by the SC Justices seem to be in earnest, though.


Posted by: Cyrus | Link to this comment | 04-21-10 1:05 PM
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Meanwhile, Thomas is still amazed by dishwashers.


Posted by: rob helpy-chalk | Link to this comment | 04-21-10 1:07 PM
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130 and 131 are not mutually exclusive. Either way, the guy sets my teeth on edge.


Posted by: Not Prince Hamlet | Link to this comment | 04-21-10 1:13 PM
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"Could Quon print these spicy little conversations and send them to his buddies by, say, pony express or pneumatic tube?" Scalia asked.


Posted by: Jesus McQueen | Link to this comment | 04-21-10 1:19 PM
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136: Meanwhile the technologically-literate Thomas was emailing them to his female clerks.


Posted by: Not Prince Hamlet | Link to this comment | 04-21-10 1:28 PM
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...passing fads like information technology and pants.

Beautiful.


Posted by: togolosh | Link to this comment | 04-21-10 1:29 PM
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