The law, in its majestic equality, forbids rich and poor alike to sleep under bridges, to beg in the streets, and to steal their bread.Let me give you some of what Orwell wrote about in "Down and Out in Paris and London":
I have slept on the Embankment.... It is... much better than not sleeping at all, which is the alternative if you spend the night in the streets, elsewhere than on the Embankment. According to the law in London, you may sit down for the night, but the police must move you on if they see you asleep; the Embankment and one or two odd corners (there is one behind the Lyceum Theatre) are special exceptions. This law is evidently a piece of wilful offensiveness. Its object, so it is said, is to prevent people from dying of exposure; but clearly if a man has no home and is going to die of exposure, die he will, asleep or awake. In Paris there is no such law. There, people sleep by the score under the Seine bridges, and in doorways, and on benches in the squares, and round the ventilating shafts of the Métro, and even inside the Métro stations. It does no apparent harm. No one will spend a night in the street if he can possibly help it, and if he is going to stay out of doors he might as well be allowed to sleep, if he can.
There is a nascent post to be made in analyzing the Honey Badger video now in the context of The Era Of That's Not Funny.
The pseudo-gay voice is obviously problematic.
He is also appropriating the Honey Badger's culture for his own benefit, and mocking it in the process.
The celebration of an animal for its violent and selfish tendencies is also troublesome: indeed, the video could be seen as a Trojan Horse for celebrating the American Conservative White Male.
To begin.
"Everybody immediately runs to the 9th Circuit. And we have a big country. We have lots of other locations. But they immediately run to the 9th Circuit. Because they know that's like, semi-automatic," Trump said.
His comments came one day after U.S. District Judge William Orrick temporarily blocked Trump's efforts to withhold funds from any municipality that refuses to cooperate with immigration enforcement officers....
"You see judge shopping, or what's gone on with these people, they immediately run to the 9th Circuit," Trump said. "It's got close to an 80 percent reversal period, and what's going on in the 9th Circuit is a shame."
The Ninth Circuit per curiam opinion authorizing the continued injunction prohibiting enforcement of President Trump’s executive order is a farrago of nonsense. The court should be embarrassed by its decision. Indeed, it appears that at least one of the Ninth Circuit judges may actually be embarrassed by it.Yes, but it keeps the subject in play and forces us to keep looking and taking different perspectives on it.
The court filed an order this afternoon stating: “A judge on this Court has made a sua sponte request that a vote be taken as to whether the order issued by the three judge motions panel on February 9, 2017, should be reconsidered en banc.” In other words, no party moved for the rehearing; one of the court’s many judges did so on his own (i.e., sua sponte). I’m guessing it might be Judge Kozinski or Judge Bybee. I would love to hear from a knowledgeable court watcher on this point....
The Ninth Circuit is insanely liberal. Evidence of its insanity is all over the oral argument of the case and the opinion on which the vote for rehearing has been called. The Ninth Circuit gets a lot wrong in its 29-page opinion, but can it be rectified by this court? Not bloody likely....
SEE YOU IN COURT, THE SECURITY OF OUR NATION IS AT STAKE!
— Donald J. Trump (@realDonaldTrump) February 9, 2017
(1) there is nothing in the statue’s display or setting to suggest government endorsement; the twelve-foot tall statue is on a mountain, far from any government seat or building, near a commercial ski resort, and accessible only to individuals who pay to use the ski lift; (2) the statue’s plaque communicates that it is privately owned and maintained — “it did not sprout from the minds of [government] officials and was not funded from [the government’s] coffers”; (3) besides the statue’s likeness, there is nothing in the display or setting to suggest a religious message. The mountain’s role as a summer and winter tourist destination used for skiing, hiking, biking, berry-picking, and site-seeing suggests a secular context...That's not the usual way we spell "sight-seeing," but I guess it's a site... and here comes a cite:
... the location “does not readily lend itself to meditation or any other religious activity,” and the setting “suggests little or nothing of the sacred,” Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment); (4) the flippant interactions of locals and tourists with the statue suggest secular perceptions and uses: decorating it in mardi gras beads, adorning it in ski gear, taking pictures with it, high-fiving it as they ski by, and posing in Facebook pictures; (5) local residents commonly perceived the statue as a meeting place, local landmark, and important aspect of the mountain’s history as a ski area and tourist destination; and, (6) there is an absence of complaints throughout its sixty-year history, see Van Orden, 545 U.S. at 702 (Breyer, J., concurring in the judgment) (reasoning that the monument’s forty-year unchallenged history “suggest[s] more strongly than can any set of formulaic tests that few individuals … are likely to have understood the monument as amounting … to a government effort to favor a particular religious sect, … to ‘compel’ any ‘religious practic[e],’ or to ‘work deterrence’ of any ‘religious belief’” (alterations in original)).Note the emphasis on Justice Breyer's concurring opinion in Van Orden, which was the case about the 10 Commandments monument next to the Texas state house. This emphasis is justified, as Breyer was the deciding vote in that case and another 10 Commandments case that came out the same day and went the other way. Following Breyer, you end up with multifactored, contextualized judgment.
... I think removing the statue is not necessary to comply with the Establishment Clause. I go back to what Justice Breyer wrote in one of the 10 Commandments cases that the Supreme Court decided in 2005 [Van Orden]. Breyer... was the only member of the Court in the majority in both cases.
Justice Breyer quoted the 1963 school prayer opinion written by Justice Goldberg: "[U]ntutored devotion to the concept of neutrality can lead to invocation or approval of results which partake not simply of that noninterference and noninvolvement with the religious which the Constitution commands, but of a brooding and pervasive devotion to the secular and a passive, or even active, hostility to the religious."
And Breyer concluded that taking down the old stone monument in Texas would "exhibit a hostility toward religion that has no place in our Establishment Clause traditions" and "encourage disputes concerning the removal of longstanding depictions of the Ten Commandments from public buildings across the Nation," which would "create the very kind of religiously based divisiveness that the Establishment Clause seeks to avoid."
Big Mountain Jesus is a 50-year-old part of the landscape, so it's probably a good idea to take Justice Breyer's advice seriously and ski clear of divisiveness and a brooding and pervasive devotion to the secular.
Justice Kennedy, the member of the court responsible for hearing emergency applications from the Ninth Circuit, entered a temporary stay on Wednesday morning on very short notice after a last-minute request from officials in Idaho. He acted so quickly that he included Nevada in his order.
A few hours later, Justice Kennedy issued a revised order, limiting the stay to Idaho.
“The record persuasively demonstrates that” the juror “was struck because of his sexual orientation,” [Judge Stephen R. Reinhardt wrote for a unanimous three-judge panel]. “Permitting a strike based on sexual orientation would send the false message that gays and lesbians could not be trusted to reason fairly on issues of great import to the community or the nation,” he added....How will this work in future cases? Will lawyers accuse lawyers of excluding someone because he is or seems gay? Someone called in for jury duty will be subjected to lawyers arguing over whether he is perceived as gay?
"We have analyzed the Supreme Court precedent... by considering what the court actually did, rather than by dissecting isolated pieces of text."That's a useful prod. The Supreme Court — if it's going to have a system of levels of scrutiny — ought to tell us outright what level it's on.
Earlier this month, two federal judges in California arrived at opposite conclusions on whether the law violates the Constitution.
... Christopher Nathan, 39, of San Francisco, a law clerk for U.S. Magistrate Maria Elena James, sought [health insurance] coverage for his spouse, Thomas Alexander, 40.... [H]e was turned down by the Administrative Office of the U.S. Courts because the 1996 law bars federal recognition of same-sex unions.
In April, Chief U.S. District Judge James Ware said the denial violated the federal court's rules against discrimination based on sexual orientation and gender, and ordered the court to reimburse Nathan for the costs of buying private insurance.
The Judicial Council, the final authority in the administrative review process, went a step further in this week's order and said DOMA has been held unconstitutional by a San Francisco federal judge in another employee's case. The three-judge panel ordered the court [that is, his employer] to determine how much it owes Nathan and then pay him within 10 days.
In Alvarez, the Ninth Circuit is affirmed. Per Kennedy. His opinion is for a plurality.Here's the opinion PDF.
The statute violates the First Amendment. Breyer and Kagan concur and conclude that the Act as presently drafted fails First Amendment scrutiny. So Congress probably could rewrite it.
"Lying was his habit" is how the opinion begins.
Alito, Scalia, and Thomas dissent.
A few weeks ago, subsequent to oral argument in this case, the President of the United States ignited a media firestorm by announcing that he supports same-sex marriage as a policy matter. Drawing less attention, however, were his comments that the Constitution left this matter to the States and that “one of the things that [he]’d like to see is–that [the] conversation continue in a respectful way.”
Today our court has silenced any such respectful conversation.
We are excited to see someone ask, "Will you marry me?", whether on bended knee or in text splashed across a stadium Jumbotron. Certainly it would not have the same effect to see "Will you enter into a registered domestic partnership with me?". Groucho Marx's one-liner, "Marriage is a wonderful institution... but who wants to live in an institution?" would lack its punch if the word "marriage" were replaced with the alternative phrase. So too with Shakespeare's "A young man married is a man that's marr'd," Lincoln's "Marriage is neither heaven no hell, it is simply purgatory," and Sinatra's "A man doesn't know what happiness is until he's married. By then it's too late." We see tropes like "marrying for love" versus "marrying for money" played out again and again in our films and literature because of the recognized importance of the marriage relationship. Had Marilyn Monroe's film been called How to Register a Domestic Partnership with a Millionaire, it would not have conveyed the same meaning as did her famous movie....You get the idea. The judges are old. I mean... marriage — even just the word — matters.
The Supreme Court was emphatic that it would "undermine" the California ballot initiative process if the governor and attorney general can trump the voters by declining to defend such laws in the courts.ADDED: Here's the California Supreme Court opinion (PDF). The California Supreme Court observes that the 9th Circuit saw the federal issue of standing as hinging on a state law question: whether "the official proponents of an initiative have authority under California law to assert the state‘s interest in the initiative measure‘s validity." The California Supreme Court's opinion stresses the nature of the initiative power, which was adopted "as one means of restoring the people‘s rightful control over their government":
"The inability of the official proponents of an initiative measure to appeal a trial court judgment invalidating the measure, when the public officials who ordinarily would file such an appeal decline to do so, would significantly undermine the initiative power," Chief Justice Tani Cantil-Sakauye wrote for the [unanimous] court....
"This frees up the 9th Circuit to go ahead and decide the constitutional issues on the merits," said Theodore Olson, former U.S. Solicitor General during the Bush administration. "We're anxious to get to a decision on the merits that Proposition 8 is unconstitutional."
[T]he court said it did not believe the Obama administration is prepared to defend the constitutionality of Don’[t] Ask, Don’t Tell....
But the court wrangling appears to be much ado about nothing.
Although the injunction will bar the military from discharging any gay or lesbian service members, as a practical matter the injunction will have little effect on a military that is gearing up for repeal. Pentagon officials have said that they will be ready to certify that the military is ready for repeal within weeks.
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