Doctors, some of them from the top pediatric hospitals, have begun to advise families to let these children be “who they are” to foster a sense of security and self-esteem. They are motivated, in part, by the high incidence of depression, suicidal feelings and self-mutilation that has been common in past generations of transgender children. Legal trends suggest that schools are now required to respect parents’ decisions....And then there are the parents who think they ought to give hormone treatments to young tomboy girls on the theory that they need to be spared the shocking evidence of femininity that is menstruation.
Cassandra Reese, a first-grade teacher outside Boston, recalled that fellow teachers were unnerved when a young boy showed up in a skirt. “They said, ‘This is not normal,’ and, ‘It’s the parents’ fault,’ ” Ms. Reese said. “They didn’t see children as sophisticated enough to verbalize their feelings.”
The Court decided in Flast that they should not stand in the way of challenges to "exercises of congressional power under the taxing and spending clauses of Art. I, § 8, of the Constitution," provided that the expenditure complained of is not just "an incidental expenditure of tax funds in the administration of an essentially regulatory statute" and that "the challenged enactment exceeds specific constitutional limitations imposed upon the exercise of the congressional taxing and spending power and not simply that the enactment is generally beyond the powers delegated to Congress by Art. I, § 8." 392 U.S. at 102-03. The Court found that this two-part test was satisfied by a challenge to the use of "the taxing and spending power . . . to favor one religion over another or to support religion in general." Id. at 103....Citing precedent, Posner identified the standing problem here as involving only the "prudential" limitations on federal court jurisdiction -- as opposed to the Article III constitutional limitations. Since "the prudential principles of standing, like other common law principles, are protean and mutable," Posner thereby freed himself to speak in practical terms and to avoid the Article III doctrine -- which has tightened up in the years since Flast and which has long made Flast seem like an anomalous safe harbor for Establishment Clause litigants.
At argument the plaintiffs' counsel was unable to identify the appropriations that fund the conferences. The complaint does, however, allege that the conferences are funded by money derived from appropriations, which means from exercises of Congress's spending power rather than from, say, voluntary donations by private citizens. There is no suggestion that these are appropriations earmarked for these conferences, or for any other activities of the various Faith-Based and Community Initiatives programs, or for a statute pursuant to which the programs were created. The money must come from appropriations for the general administrative expenses, over which the President and other executive branch officials have a degree of discretionary power, of the departments that sponsor the conferences. Consolidated Appropriations Act, 2005, Pub. L. No. 108-447, 118 Stat. 2809, 2853, 3115-16, 3136, 3150, 3311-12; Department of Homeland Security Appropriations Act, 2005, Pub. L. No. 108-334, 118 Stat. 1298-99.
The difference, then, between this case on the one hand and Flast and Kendrick on the other is that the expenditures in those cases were pursuant to specific congressional grant programs, while in this case there is no statutory program, just the general "program" of appropriating some money to executive-branch departments without strings attached. The difference cannot be controlling. Suppose the Secretary of Homeland Security, who has unearmarked funds in his budget, decided to build a mosque and pay an Imam a salary to preach in it because the Secretary believed that federal financial assistance to Islam would reduce the likelihood of Islamist terrorism in the United States. No doubt so elaborate, so public, a subvention of religion would give rise to standing to sue on other grounds, just as in the St. Charles cross case; taxpayer standing in the hypothetical mosque case would not be essential to enabling a suit to be brought in federal court to challenge the violation of the establishment clause. But it would be too much of a paradox to recognize taxpayer standing only in cases in which the violation of the establishment clause was so slight or furtive that no other basis of standing could be found, and to deny it in the more serious cases.
On an early morning in March 2004 some 85 adults gathered at a restaurant in Manhattan's meatpacking district, removed their clothes and posed for Mr. Tunick's camera. Arlene Donnelly Nelson and David Nelson's moving 38-minute documentary, to be shown tonight on Cinemax to commemorate World AIDS Day, captures the moment gracefully.We'll see if it's quite as spiritual as all that. I tend to doubt it. I hate the idea that it's supposed to be profound because we're told it's about AIDS, as was done so often years ago.
Like a lot of their fellow human beings, some of these men and women are a little apprehensive about revealing their naked bodies to total strangers, not to mention the world. One man says he is much more nervous about showing his distended abdomen (a side effect of medical treatment) than his penis. Many seem nervous at first but soon relax into the equality that nakedness creates. Not surprisingly, one man reports "a sense of camaraderie" in the experience.
At first the sight of scores of naked adults milling about and looking confused about what is expected of them bears an unsettling resemblance to a scene from a Holocaust film. But as the photo session proceeds, an energizing dignity takes hold. Neither the documentary nor the magazine cover photograph focuses on genitalia. The scene really does convey, as publicity materials suggest, the spirit within the flesh.
Jurors in the trial of a man accused of killing an Indiana University student got "giggly" while sequestered at a hotel, records show -- with men racing each other wearing high heels, food fights, football and Frisbee.
The defense is not amused, but may not be able to do much about it.
Think of a trapeze artist, suggests Adams, or a rock climber, motorcyclist or college kid on a hot date. Add some safety equipment to the equation — a net, rope, helmet or a condom respectively — and the person may try maneuvers that he or she would otherwise consider foolish. In the case of seat belts, instead of a simple, straightforward reduction in deaths, the end result is actually a more complicated redistribution of risk and fatalities. For the sake of argument, offers Adams, imagine how it might affect the behavior of drivers if a sharp stake were mounted in the middle of the steering wheel? Or if the bumper were packed with explosives. Perverse, yes, but it certainly provides a vivid example of how a perception of risk could modify behavior.
In a squalid South American oil town, four desperate men sign on for a suicide mission to drive trucks loaded with nitroglycerin over a treacherous mountain route. As they ferry their explosive cargo to a faraway oil fire, each bump and jolt tests their courage, their friendship, and their nerves.
Former Vice President Al Gore took a swipe at Supreme Court Justice Antonin Scalia on Wednesday, referencing the conservative jurist's recent skepticism in a global warming case and role in the 2000 presidential election.The quip is sort of funny (though a good joke actually makes people laugh, not "cheer" or clap), but the joke is strained. (It doesn't fit together. Getting involved in the presidential election isn't something that you do because you think you have scientific expertise. But, in any case, Scalia's position in Bush v. Gore worked to extract judges from the election, as it pushed back the Florida Supreme Court, which thought it had the expertise to run things.)
"In the arguments, Justice Scalia said, 'I'm not a scientist, I don't want to deal with global warming.' I just wish he felt that way about presidential elections," Gore joked on "The Tonight Show with Jay Leno."
Responding to the audience's cheer, he quipped: "I think 51 percent of the audience clapped for it."
“You have to show the harm is imminent,” Justice Scalia instructed [General James R. Milkey, representing the various states, cities and environmental groups who sued], asking, “I mean, when is the cataclysm?”In other words, even if you think the injury is enough for standing, there are problems on the "causation" and "redressability" prongs on the standing doctrine. Don't be distracted by Scalia's wondering about the "cataclysm." You can assume for the sake of argument that the plaintiffs face injury and still find no standing, for the sole reason that the relief they are seeking isn't likely enough to change the situation. But, looking at the transcript, I see they did focus more strongly on the injury question. Back to Greenhouse:
Mr. Milkey replied, “It’s not so much a cataclysm as ongoing harm,” arguing that Massachusetts, New York, and other coastal states faced losing “sovereign territory” to rising sea levels. “So the harm is already occurring,” he said. “It is ongoing, and it will happen well into the future.”
Chief Justice Roberts and Justice Alito both suggested that because motor vehicles account for only about 6 percent of carbon dioxide emissions, even aggressive federal regulation would not be great enough to make a difference, another requirement of the standing doctrine.
When Mr. Milkey replied that over time, “even small reductions can be significant,” Chief Justice Roberts responded: “That assumes everything else is going to remain constant, though, right? It assumes there isn’t going to be a greater contribution of greenhouse gases from economic development in China and other places that’s going to displace whatever marginal benefit you get here.” At another point, the chief justice said the plaintiffs’ evidence “strikes me as sort of spitting out conjecture on conjecture.”
On the other side, Justices Stephen G. Breyer, Ruth Bader Ginsburg, John Paul Stevens and David H. Souter appeared strongly inclined to find that the plaintiffs had met the standing test.They generally do apply standing doctrine less strictly... which means that Justice Kennedy is the swing voter.
[Kennedy's] relatively few comments were ambiguous. Early in the argument he challenged the assertion by Mr. Milkey, the states’ lawyer, that the case “turns on ordinary principles of statutory interpretation and administrative law” and that there was no need for the court “to pass judgment on the science of climate change.”
That was “reassuring,” Justice Kennedy said. But, he added, “Don’t we have to do that in order to decide the standing argument, because there’s no injury if there’s not global warming?”
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