The Obergefell Decision is Incorrect

I think the Supreme Court decision in Obergefell v. Hodges, which declared that state prohibition of gay marriage is unconstitutional, is incorrect. I can't find a right to marry in the Constitution.

That's not to say that I think gay couples should not be married. Every state in the union, and the federal government as well, should endorse and protect same-sex marriages. There is not earthly reason to prohibit it; the arguments made by opponents are silly and often contradictory. As I noted in the space earlier, Justice Scalia's dissent in the case was especially embarrassing. No one, for example, has a First Amendment right to refuse to interact with gay people in the public sphere. That's nonsense.

Also, I think the Supreme Court decision in Lawrence v. Texas is absolutely correct. Justice Kennedy's opinion is that case made precisely the right point when it said that

liberty presumes an autonomy of self that includes freedom of thought, belief, expression, and certain intimate conduct....  The petitioners are entitled to respect for their private lives. The State cannot demean their existence or control their destiny by making their private sexual conduct a crime. Their right to liberty under the Due Process Clause gives them the full right to engage in their conduct without intervention of the government.

To outlaw homosexual conduct is as much an invasion into basic liberty as it would be to outlaw heterosexual conduct as a whole. This kind of government intrusion is exactly the kind of this the 9th Amendment was written to prevent. 

Marriage, on the other hand, is not private. It is an explicitly public act, recognized (or not) by religious, social, or political communities. It's not conducted in private, and has no serious bearing on other protected behavior. One can be gay, straight or otherwise whether one is married or not. Although Justice Roberts dissent was unnecessarily uncivil, I think he was right. He said, in part,

Today the Court takes the extraordinary step of ordering every State to license and recognize same-sex marriage. Many people will rejoice at this decision, and I begrudge none their celebration. But for those who believe in a government of laws, not of men, the majority’s approach is deeply disheartening…

The majority’s decision is an act of will, not legal judgment. The right it announces has no basis in the Constitution or this Court’s precedent. The majority expressly disclaims judicial “caution” and omits even a pretense of humility, openly relying on its desire to remake society according to its own “new insight” into the “nature of injustice…

That is, the right to gay marriage is a legal one, to be protected by political process, not a constitutional one. I think Justice Kennedy and the four justices who signed his opinion went a step too far.

Scalia (Once Again) Undermines His Own Institution

Antonin Scalia would like to think that he is the lone defender of the United States Constitution, and the stalwart member of the Supreme Court. He talks (and talks) about how the "liberal" members of the Court and the promoters of a "homosexual agenda" (a phrase he actually used in an earlier dissent) are usurping the rights of the majority to pronounce homosexuality immoral.

Antonin Scalia is wrong. No one is more responsible for the disintegration of political discourse in this country than he is. His repeated ad hominem attacks on his colleagues, his insistence on emotional, irrational and irresponsible statements in dissenting opinions, he refusal to accept the necessity of stepping out of the limelight in order to maintain at least an appearance of impartiality, help undercut the very rule of law hos purports to defend.

His latest rant, after the Court struck laws that did not accept gay marriages from other states, makes hi look like a fool, and the Supreme Court like a dysfunctional group of political hacks. If he opposes gay marriage on personal religious grounds, that's his right. I think such beliefs are selfish, myopic and out of touch, but OK. If he believes that the Court reached incorrect conclusions, it's his job to dissent. But to ignore the dignity of the Court and launch a campaign against it is unprofessional and harmful.

In my opinion, he is coming quite close to impeachable offenses.

"You Must Be This Young To Die," by Catherine Luchars

This essay was submitted by Catherine Luchars, just graduated from Millbrook School and headed for Colorado College in the fall.

With the development of medicinal care in the past century, the balance between prolonging life and relieving suffering has become increasingly more controversial for doctors. Instead of death happening naturally or accidently on people’s own terms, it has moved to public hospitals. Physicians now control the outcomes of people’s lives, raising the question of whether the doctor’s authority serves a patient’s best interest. The responsibility of making decisions on how to treat a patient must naturally shift from doctors and governmental authorities to patients and family members. Assuming an individual is competent and of a rational mind, being free from unwanted interference in order to uphold bodily integrity is a fundamental principle engrained into our democratic society. The right of individuals to choose their own medical care and the time, place, and manner of their death is implicit in the basic notion of personal autonomy and self-determination, and ultimately must take precedent over the governmental interest of protecting citizens by safeguarding their health.

This contemporary issue over who should be making medical decisions is being disputed in a current court case in Connecticut. It involves Cassandra C., a 17-year-old girl, who was diagnosed with Hodgkin’s Lymphoma in September. In the face of grueling future medical treatments to combat this disease, Cassandra made the personal decision to forego chemotherapy altogether, despite its 80% chance survival rate, and cope with the fact that without treatment her chance of death is almost certain. This decision, supported by her mother, has entangled the two in a legal battle against the Connecticut State courts. It began after the surgical removal of Cassandra’s lymph node performed by local doctors. Following this, Cassandra and her mother planned on consulting with doctors in another state to seek another opinion, but the local doctors called Department of Children and Families, raising the issue of parental medical neglect. As a result, the Court ordered the removal of Cassandra from her mother’s custody until her mother “provided and cooperated with the medical care under DCF supervision and as recommended by her doctors”.[i] Cassandra and her mother subsequently complied with the court’s orders, but after Cassandra received her first two chemotherapy treatments, she ran away from home to avoid further treatment. When she returned, the court “ordered that she be immediately removed from her home and that she remain in DCF’s care and custody”.[ii] They also authorized the DCF to “make all necessary medical decisions on Cassandra’s behalf.”[iii] She is now in a hospital receiving treatment under this court order.

The court declared that not only Cassandra, a 17-year-old girl, is incompetent to make her own medical decisions, but her mother lacks the responsibility as well, bringing up issues regarding personal and family integrity. Cassandra’s mother has acknowledged the fact that her daughter will die without treatment. Her mother declared that regardless of this outcome, “it’s her constitutional right—she doesn’t want poison and toxins in her body. It’s her choice, and I support her decision.”[iv] Cassandra “put up a fight”[v] against the Connecticut state doctors to avoid chemotherapy, and ultimately had to be strapped down to the hospital bed. She reflects on her experience in a personal essay after being hospitalized in December, “ I was strapped to a bed by my wrists and ankles and sedated. I woke up in the recovery room with a port surgically placed in my chest. I was outraged and felt completely violated.”[vi] Cassandra, currently confined to the hospital with limited communications and visits, specifically by her mother, writes that she feels suffocated by the court’s intervention and that nobody has let her breath. She ends her personal essay with the fundamental constitutional issue, “How long is a person actually supposed to live and who decides that?”

The basic right for a person to choose not be touched or treated without consent, despite a potentially fatal outcome, has been consistently established in prior court decisions and should provide ample protection for Cassandra. Based on Cruzan v. Director, Missouri Dept. of Health, a case involving a woman who was permanently unconscious after a serious car accident, the Supreme Court recognized the right of any person deemed competent to refuse any medical treatment.[vii] The court limited this right by saying that states also have an interest in this matter, whether preserving life, preventing suicide, or upholding the ethical integrity of the medical profession. Therefore, the court decided that a state has the ability to insist on clear and convincing evidence as to the patient’s wishes. This case, along with several others such as Quinlan vs. New Jersey and Bouvia v. Superior ushered the legal acceptance of what is now classified as passively hastening death.[viii] In Quinlan vs. New Jersey (1976), Karen Ann Quinlan stopped breathing and fell into a persistent vegetative state, with full recovery unlikely. Her family fought the courts to remove the respirator, figuring that’s what Karen would have wanted. The New Jersey Supreme Court acknowledged both the right for Quinlan to refuse further treatment and her family’s right to make that decision for her by allowing her respirator to be removed. In Bouvia vs. Superior Court, the court recognized that a 30-year-old woman, who was a victim of cerebral palsy, had the right not be force fed through medical procedures, even if refusal led to her death.[ix] In these cases, the patients, whose prospects for a somewhat meaningful existence were almost certain, were still allowed to end their life by foregoing treatment. Courts hold that an individual’s right to privacy and to be free from unwanted bodily interferences affords an individual the ability to make this decision.

The courts distinguish the countervailing state interests of the preservation of life, the prevention of suicide, the protection of third parties, and upholding the ethical integrity of the medical profession from the ability to limit a patient to forgo medical treatment. However, if a patient is terminally ill, permanently unconscious, or deemed competent by the courts to make rational medical decisions for themselves, these limitations have little effect. Ultimately, the courts view, as stated in Quinlan is that “the state’xs interests weaken and the individual’s right to privacy grows as the degree of bodily invasion increases and the prognosis dims”.[x] They deem that allowing a patient to merely refuse medicine, even when it is life sustaining, is letting the disease or nature take its course, therefore not constituting suicide, which is generally condemned in most state and federal courts.[xi] In addition, they said that the government’s concern over the effect of the medical decision on a third party, such as a child, friend, or other close member, denies the patient of the choice of which risks to take. A person is obligated to evaluate their circumstances and judge what is best whether for themselves or those who might be affected. Ultimately, the right of individuals to make their own medical choice prevails over the interest of a third party.

They also recognize that this strong right does not sacrifice the ethical integrity of the medical profession because finding a cure to any and all disease is not the end goal anymore. Rather than treatment, the dying person is often in need of comfort.[xii] This theme of compassion in doctors is highlighted in the decision of Superintendent of Belchertown State School v. Saikewicz, stating, “if the doctrines of informed consent and right of privacy have as their foundations the right to bodily integrity…and control of one’s own fate, then those rights are superior to the institutional considerations.”[xiii] These exceptions to the limitations on the right to refuse treatment directly apply to Cassandra’s situation. They uphold the basic human principles that not only is an individual obligated to make decisions for themselves, but also the doctor’s are obligated to respect those decisions, as the sole goal of treatment is not recovery for those suffering with severe, incapacitating illnesses. With modern technology affording a patient multiple medicinal routes to take, the patient must make the decision based on what they feel most comfortable with, eliciting the crucial right of privacy and self-determination.

Despite not being explicitly guaranteed as a fundamental right in the constitution, the right to privacy has become accepted in landmark Supreme Court cases in the past. Dating back to 1891 in Union Pacific R. Co. v. Botsford, the court recognized that the right of personal privacy or a “guarantee of certain areas or zones of privacy” [xiv] exists in the constitution. Justice Blackmun in Roe v. Wade ruled that “in varying contexts, the Court or individual Justices have found at least the roots of that right in the First Amendment; in the Fourth and Fifth amendments; in the penumbras of the Bill of Rights; in the Ninth Amendment or in the concept of liberty guaranteed by the first section of the Fourteenth Amendment.”[xv] From here he says that only personal rights that “can be deemed fundamental or implicit in the concept of ordered liberty” [xvi] are included in this guarantee of personal privacy.

Based on this conclusion, Blackmun argues that a statute criminalizing a woman’s right to an abortion is unconstitutional. He points out the detriment that the state would impose upon the pregnant women by denying her choice to terminate her pregnancy. He not only cites physical harms, but the psychological distress that would arise from an unwanted child who is unable to be cared for. This detriment has little distinction from the state refusing Cassandra and her mother’s, or, more generally, other seriously incapacitated patients’, choice as to how they will die. The series of harsh treatments that as Cassandra’s mother says “kills the cancer, but also kills everything else in your body”[xvii] and the loss of autonomy, bodily functions, and the decreasing ability to participate in activities that make life enjoyable should be reason enough for a person to be able to make this private decision.[xviii] In Planned Parenthood v. Casey, the court acknowledges that matters

Involving the most intimate and personal choices a person may make in a lifetime, choices central to personal dignity and autonomy, are central to the liberty protected by the Fourteenth Amendment. At the heart of liberty is the right to define one’s own concept of existence, of meaning, of the universe, and of the mystery of human life. Beliefs about these matters could not define the attributes of personhood were they formed under compulsion of the state.[xix]



The state of Connecticut cannot punish Cassandra for having her own beliefs and concept of existence. If enduring the emotionally and physically painful process of chemotherapy does not feel worth it to Cassandra, the state must respect that and let her be.

Connecticut claims that this recognized right does not apply to Cassandra on the sole basis that she is an incompetent patient since she is a minor (17 years old) and lacks the responsibility to make the decision for herself. However, previous courts have attempted to maintain the principles of autonomy by allowing a surrogate to make decisions regarding medical treatments for an incompetent patient. A surrogate, typically a close family member who best knows the patient and is most likely to act for the patient’s welfare, must apply the “substituted judgment standard,”[xx] by reflecting the patient’s probable wishes. In this case, Cassandra’s mom, acting as her surrogate, has decided to uphold Cassandra’s wishes. Despite being her legal guardian and authorized to make decisions for her daughter, Cassandra’s mother’s voice was discredited by Connecticut as well based on the conclusion that she did not have her daughter’s best interest in mind, accusing her of parental medical neglect. Yet, her mother was simply supporting her daughter’s decision. In fact, she even specifically remembers Cassandra remarking several years earlier that if she ever were to get cancer, she wouldn’t want chemotherapy. Her mother respected Cassandra’s long-standing views on this matter, and sought out second opinions on what Cassandra’s other options were besides chemotherapy. These actions cannot rationally be taken as “neglect” and, as Cassandra’s surrogate, it is within her right to make these decisions anyways.

The state rejects the argument that Cassandra should be given the authority to choose whether or not to undergo chemotherapy based on her maturity. However, their evidence to determine her maturity is founded solely on her behavior in response to the state’s actions.[xxi] Following the initial trial court decision that allowed Cassandra to move back home in her mother’s custody if she submitted to the unwanted treatment, Cassandra decided to run away from home for several days and skipped several court-mandated chemotherapy appointments. An article in the Harvard Crimson notes Connecticut’s inconsistency saying, “a state should not have the right to base the legitimacy of its authority over her on the fact that she challenged the court’s legitimacy in the first place.”[xxii] Essentially, Connecticut’s conviction that neither Cassandra nor her mother is rational in their decision to refuse treatment extinguishes the legitimacy of any right personal autonomy in the first place, as the medical decisions are only deemed rational if they consent to the authority of the state’s decision.[xxiii]

Regardless of her maturity level and competency to make a decision, if Cassandra was born only several months earlier, the state would have no interest in this matter at all since she would be 18 and therefore considered old enough to make rational decisions. This fact is impossible to ignore as it highlights the legitimacy of the state’s interest. While protecting a minor from making a fatal decision is valid, they cannot justify the difference that only a few months would make on an individual’s capability to make a decision. Cassandra’s lawyer points out this key point, asking “Can a smart and knowledgeable 17-year-old make the same choice, for better or for worse, than she would be able to make without state interference nine months from now, when she turns 18?”[xxiv] Once a person turns 18, their decision-making skills do not automatically improve.

Many states have made efforts to counteract this fact by adopting a Mature Minors Doctrine, which holds that some minors possess the maturity to make their own medical decisions, even if they are younger than the age of legal adulthood. As of 2013, seventeen states have recognized some form of this doctrine[xxv]. This law generally gives minors the ability to consent to medical treatment against the wishes of their parents, often relating to giving teenagers the right to get an abortion. Connecticut is one of the states that has not implemented any aspect of this legislation and instead continually refuses to acknowledge that there is no rigid, defining age of maturity. Their complete denial of this inconsistency undermines their claims of governmental interest by not truly evaluating a person’s maturity beyond their age. Courts have ruled that minors can refuse treatment before. In 2007, 14-year-old Dennis Lindberg died of leukemia after refusing to undergo life-saving blood transfusions. The state of Washington allowed him to make the decision for himself because he was a Jehovah’s Witness and blood transfusions are banned in his faith[xxvi]. This is no different from Cassandra. While her decision might not be influenced by her religion, it is still based on her own beliefs on human existence.

Admittedly, a 17-year-old girl deciding to succumb to a disease that will most likely end her life is an agonizing thought. Yet, it must be recognized that no matter what, death is one of the most mystifying aspects of human life. Ultimately, it has to be up to the individual to rationalize their concept of it for themselves. Permitting Cassandra to “form and live in accordance with her own conception of a good life, at least within the bounds of justice and consistent with others doing so as well”[xxvii] is a right that the state simply cannot repeal. If Cassandra would rather succumb to her death than endure the “poison”[xxviii] that would be put into her body to counteract her dying and the emotional toll it would take on her, then she should be able to. The state’s interest in her maturity to handle this based on her age is essentially arbitrary and their failure to yield to her wishes as well as her legal guardian’s sacrifices both of their liberty altogether. It reveals that regardless of whether someone is capable of making a rational decision or not, if it is not in accordance with the ideas of the authority, then the authority may disregard it. Connecticut’s actions, despite its good intentions of safeguarding health and protecting a minor, cross personal boundaries that destroy Cassandra’s individual autonomy and lack any compelling justification. This case and along with others cited throughout this paper clearly illustrate that a governmental interference with a noble cause, if left unchecked and pushed too far, can cause more damage than good and ultimately threaten an individual’s inherent right to free will and independence—two core values fundamental to a democratic society.

---

[i] Josh Kovner, “Teen Fighting Chemo Order” Hartford Courant, January 03, 2015.

[ii] Ibid

[iii] Ibid

[iv] Ibid

[v] Josh Kovner, “Teen’s Mother: It’s her choice” Hartford Courant, January 04, 2015.

[vi] Elizabeth A. Harris, “Connecticut Teenager With Cancer Loses Court Fight to Refuse Chemotherapy,” The New York Times, January 09, 2015, http://www.nytimes.com/2015/01/10/nyregion/connecticut-teenager-with-cancer-loses-court-fight-to-refuse-chemotherapy.html?_r=0 (accessed April 4, 2015)

[vii] Alan Meisel. "Right to Die, Policy and Law." Encyclopedia of Bioethics. Ed. Stephen G. Post. 3rd ed. Vol. 4. New York: Macmillan Reference USA, 2004. 2385-2396. Gale Virtual Reference Library. Web. 22 Mar. 2015.

[viii] Ibid

[ix] Ibid

[x] Ibid

[xi] Vacco v. Quill, 521 U.S. 793 (1997)

[xii] Meisel, “Right to Die, Policy and Law”.

[xiii] Ibid

[xiv] Roe v. Wade 1973

[xv] Ibid

[xvi] Ibid

[xvii] WW I Chattanooga, “Cassandra’s Catch-22” The Economist Newspaper, January 14, 2015,http://www.economist.com/blogs/democracyinamerica/2015/01/medical-consent (accessed April 8)

[xviii] Meisel, “Right to Die, Policy and Law”.

[xix] Planned Parenthood v. Casey, 505 U.S. 833 (1992).

[xx] Meisel, “Right to Die, Policy and Law”.

[xxi] Risham Dhillon “Raw Truths, Instinct, and Justice: The Cassandra C. Case” The Harvard Crimson, January 28, 2015, http://www.thecrimson.com/article/2015/1/28/cassandra-c-mature-minor/ (accessed April 1, 2015)

[xxii]Ibid

[xxiii] Chattanooga, “Cassandra’s Catch-22”.

[xxiv] Josh Kovner, “Lawyer: Teen’s Prognosis Good” Hartford Courant, January 6, 2015.

[xxv] Ibid

[xxvi] Megan Thielking, “Why a 17-year-old with cancer if being forced to undergo chemo against her will,” VOX, January 8, 2015, http://www.vox.com/2015/1/8/7513423/why-a-17-year-old-with-cancer-is-being-forced-to-undergo-chemo (accessed April 24th, 2015).

[xxvii]Simon Canick, "Constitutional Aspects of Physician-Assisted Suicide After Lee v. Oregon" (1997). Faculty Scholarship. Paper 150. http://open.wmitchell.edu/facsch/150

[xxviii] Kovner, “Teen Mother: It’s her choice”.

Bibliography

Canick, Simon. "Constitutional Aspects of Physician-Assisted Suicide After Lee v.

Oregon" (1997). Faculty Scholarship. Paper 150. http://open.wmitchell.edu/facsch/150

Harris A, Elizabeth. “Connecticut Teenager With Cancer Loses Court FIgh to Refuse

Chemotherapy,” The New York Times, January 09, 2015, http://www.nytimes.com/2015/01/10/nyregion/connecticut-teenager-with-cancer-loses-court-fight-to-refuse-chemotherapy.html?_r=0 (accessed April 4, 2015)

Kovner, Josh. “Teen Fighting Chemo Order” Hartford Courant, January 03, 2015.

Kovner, Josh. “Teen’s Mother: It’s her choice” Hartford Courant, January 04, 2015.

Kovner, Josh. “Lawyer: Teen’s Prognosis Good” Hartford Courant, January 6, 2015.

Meisel, Alan. "Right to Die, Policy and Law." Encyclopedia of Bioethics. Ed. Stephen G.

Post. 3rd ed. Vol. 4. New York: Macmillan Reference USA, 2004. 2385-2396. Gale Virtual Reference Library. Web. 22 Mar. 2015.

Planned Parenthood v. Casey, 505 U.S. 833 (1992).

Roe v. Wade, 410 U.S. 113 (1973).

Dhillon,Risham. “Raw Truths, Instinct, and Justice: The Cassandra C. Case” The

Harvard Crimson, January 28, 2015, http://www.thecrimson.com/article/2015/1/28/cassandra-c-mature-minor/ (accessed April 1, 2015)

Salem Press Encyclopedia. “Euthanasia Debate.”

Euthanasia debate.

(accessed March 28)

Thielking, Megan. “Why a 17-year-old with cancer if being forced to undergo chemo

against her will,” VOX, January 8, 2015, http://www.vox.com/2015/1/8/7513423/why-a-17-year-old-with-cancer-is-being-forced-to-undergo-chemo (accessed April 24th, 2015).

Vacco v. Quill, 521 U.S. 793 (1997)

WW I Chattanooga “Cassandra’s Catch-22” The Economist Newspaper, January 14,

 2015,

http://www.economist.com/blogs/democracyinamerica/2015/01/medical-consent (accessed April 8)

Why the American Government is failing

The United States faces a number of challenges demanding government action. These problems are not unprecedented, but they are serious. ISIS looks a lot like Hitler to me; Ferguson looks a lot like Selma; the economy looks like has for most of US history outside the 30 years following World War II. Real people may suffer if we manage to ignore some or all of these things.

Yet the current federal government appears unable to respond in any meaningful way. Executive action is stymied by Congress and the courts not out of principle but out of dysfunction. It's not that Congress disagrees with any particular action, it disdains all action. It's not that the Supreme Court guards against abuse of power, it stands in the way of the narrow agenda of five people. President Obama, like President Bush, has not found a way to rally the necessary popular or political support to overcome these obstacles.

Francis Fukuyama, writing in Foreign Affairs makes a compelling case for the view that these failures are systemic and pervasive. The constitutional system designed 250 years ago may work in a general sense, but the way we are applying it right now will stymie or efforts at progress.

Francis Fukuyama
http://governanceproject.stanford.edu/people/fukuyama/

At bottom, Fukuyama argues that we have sucked all the flexibility out of our system. The combination of entrenched special interests (sugar producers, oil producers, unions) and populist resistance to technocracy has stifled the kind of innovation and dynamism that is supposed to be the hallmark of democratic systems. As Exhibit A he offers the US Forest Service, which used to be run by scientific experts insulated from pork barrel politics and narrow regulation by Congress. For a long time it made decisions -- some of them based on faulty information -- in the interest of the long-term good of the country. But soon the agency was eroded by the decay that Fukuyama says is inherent in any system, and the rational, fleet decision-making process bogged down in competing and even conflicting agendas.

The TEA Party is a the worst symptom of the problem, in my view, but it is not the cause.

As I have been saying for twenty years now, we are in the midst of a paradigm shift. These cause existential crisis because they reflect a change in the fundamental reality on which all our assumptions are based. We may be seeing the last decline of our particular form of liberal democracy.

Then again, we may not. If we as a group, as a society, can muster the energy and innovation necessary to see the change we need -- the kind of thing about which Americans have been most proud in their history, justifiably so -- we can transform rather than dissolve.

Now is the time, though. We need to get going.

Today's Adolph Hitler

As the self-styled Islamic State of Iraq and Syria pushes its offensive further south through Kurdish Iraq, it makes clearer its fundamental nature. It is not a religious movement, nor even a political movement fueled by religious values. Instead, it is a totalitarian movement reminiscent more of Adolph Hitler than Osama bin Laden. Its leader, Abu Musab al-Zarqawi is an armed thug with very little religious intent. His goal is total control over a population, and he is willing to use fabricated Islamic law to get what he wants. 

Abu Musab al-Zarqawi: more Hitler than bin Laden
from Wikipedia

As Scott Stewart wrote for the website Stratfor, the Islamic State has managed to build itself into a formidable fighting organization, but it has forsaken any practical efforts to govern or gain popular support.

Stewart writes that 

So far, the Islamic State has been able to claim its battlefield successes as proof of Allah's blessing. However, it has not yet received the global recognition and acceptance it hoped its declaration of a caliphate would produce. The number of jihadist groups swearing allegiance to the Islamic State has remained quite limited to date.

Zarqawi rapes and enslaves women, executes Shi'ites and Yazidis, destroys infrastructure and rejects any suggestion that its actions might be destructive. Zarqawi is a bully in the largest sense, just as Hitler was, using his willingness to be audaciously atrocious as his favorite tool. Fear is his most effective weapon, and he preys on the ignorance of his own people to convince them that he stands for something bigger than his own power.

President Obama's decision to bomb ISIS positions over the weekend was a start, and while I sympathize with his desire to exercise restraint, this really is the first Munich since 1938. This group needs to be stopped.

If Roberts' Approach is "Incremental" Maybe He is Real Judicial Conservative

Complaints outlined here, in a New York Times piece, suggest that "conservatives" on the Supreme Court want to overrule more precedents. The way the comments are accumulated overstates the trend a little, I think, but still, the remarks from Justices Alito, Scalia and Thomas indicate the distinction between true judicial conservatives and social conservatives.

Social conservatives want to avoid change in gender roles (by preventing abortions), race relations (by voiding affirmative action programs), and economic policy (by striking anything smelling of redistribution of wealth). They like the way things "back in the day."

Judicial conservatives want to avoid jarring the legal and constitutional framework under which we have been operating for some time. They avoid overturning previous rulings or substituting new priorities for older ones by allowing precedents to stand, even if they are controversial -- Roe v. Wade is the classic example.

I'm not crazy about Roberts's politics, but I dod appreciate that he is alt least somewhat hesitant to do what Scalia prefers, which is just make things the way he wants them.

The "Islamic State" is Neither

At the core of Muhammad's life was the quest for an all-in-one society, in which politics, religion, art, and economics all flow from one, central authority derived from the word of God. It is not anti-Muslim or anti-Islamic to say that Muhammad did not seek freedom of religion or pluralism; he believed he had found the answer, and he wanted to apply it.

For the "hyper-violent" adherents of the group called the Islamic State to call for such a thing, then, is deeply rooted in the traditions and philosophy of Islamic culture. Muhammad did the same, and he fought more than one serious, literal battle to achieve its creation. That he succeeded in doing so is one of the things that sets Islam apart from other world religions, and it infuses the faithful with a distinct, though not unique political mindset (one not at all different from that of most Israelis.)

But what would the government of such a group look like? For one, it would erase or diminish the lines drawn more-or-less arbitrarily by the Sykes-Picot Agreement of the early years of the last century. It would be exclusively Sunni, as Iran is fully aware, and authoritarian at least. It would not be open to diversity, and it would not be an especially willing partner with the United States in maintaining Western interests.

So far, IS has spent all its time rebelling against the status quo, and so has not established anything like a state as yet. It governs nothing, eve as it expands the reach of its military domination and intimidation. Most commentators assume that it will be takfiri and brutal. Al Qaeda itself has disavowed many of its methods as too nasty, and while that group has ulterior motives for such remarks, it's still saying a lot that Zawahiri flinches at their violence.

http://www.eiilir.eu/

If these rebels act anything like takfiris elsewhere, they are not leading in the tradition of Islam. Muslim tradition allows excommunications and attacks on apostates, but Muhammad was a statesman as well as a profit, and he impose strict rules of evidence and procedure on such practices. Here is the Q'uran itself:

O you who believe! When you go (to fight) in the Cause of God, verify (the truth), and say not to anyone who greets you (by embracing Islam): "You are not a believer"; seeking the perishable goods of the worldly life. There are much more profits and booties with God. Even as he is now, so were you yourselves before till God conferred on you His Favours (i.e. guided you to Islam), therefore, be cautious in discrimination. God is Ever Well-Acquainted with what you do. (4:94)

That is, one can not simply wander around the desert killing people on his own initiative, as these people have done. Until they prove themselves to be true Muslims, then, they will gain no legitimacy, and no statehood.

The Fundamental and Dangerous Problem with the Hobby Lobby Decision

A disingenuous claim, at best (www.rightspeak.net)

I have two problems with the recent ruling in Hobby Lobby v. Sebelius. One, as I have already tried to make clear, has to do with the intellectual inconsistency of a few justices, led by Antonin Scalia. When justices are inconsistent or dishonest about their reasoning it undermines the political discourse in this country and leads us further away from effective self-governance.

The real danger of the opinion, however, lies in its subversion of the very foundation of democratic government: the acceptance that sometimes you don't get your way. Claiming a 1st Amendment exemption from health care laws is disingenuous. Denial of health care coverage for birth control is not a religious practice, and it does not even stem from a serious religious belief. Rather, it's an expression of a political preference, and the owners of the big box hobby store are bitter that their side lost the political debate.

If representative government is going to work, everyone needs to accept the fact that he cannot always have things his way. Our Bill of Rights was not constructed to guarantee that we never lose a debate. To water down fundamental rights -- or, rather, to use the word "right" inappropriately -- is to weaken the whole scheme and threaten our ability to function as a political society.

On the Slippery Slope

The majority in the Supreme Court's decision in Hobby Lobby v. Sebelius assured us that its ruling was very narrow, and would not exempt for-profit corporations from anti-discrimination laws, for example, on religious grounds.

But within days, it issued another order that called those reassurances into question, and non-profit organizations have read the decision as exempting them from a whole host of regulations.

Is this was a "conservative" court does?

Once Again, the "Conservatives" of the Supreme Court Go Wild

Samuel Alito likes to call himself a conservative, as does Antonin Scalia. Once again, however, both these men jumped the rails in the majority opinion in Hobby Lobby v. Sebelius. Essentially, they announced that Congress should have chosen a different way to accomplish their goals. The corporation of Hobby Lobby, they said, had First Amendment rights to exercise religious beliefs (a novel interpretation that no true judicial conservative would endorse, even if social conservatives love it), and Congress chose a method of regulating health care that interfered too much with those rights. They did not assert that Congress had no power to legislate as they did, but they did propose an alternative way of going about it they liked better.

I don't like the decision for a number of reasons, not the least of which being that I find the claim that birth control is tantamount to abortion to be absurd. I'm especially annoyed, however, with the hypocrisy of Alito, Scalia and Thomas and the damage it is doing to our system.

"Politics," the Supreme Court and the Rule of Law

A flurry of media attention has been directed lately at the Supreme Court, which scholars have argued has drifted from its responsibility to serve as neutral arbiter of the law. In early May, Thomas Edsall wrote a piece for the New York Times summarizing a lot of this commentary, and concluded that the Court's polarization comes from the four justices who consider themselves most "conservative."

The core scholarship behind Edsall's op-ed came from a study done by Geoffrey Stone of the University of Chicago, which found that in cases generally considered most "important," these four justices -- Scalia, Alito, Thomas and Roberts -- departed from the "judicial conservativism" they espouse at public speaking engagements, and engaged in an "activist" approach to evaluating legislation.

To be judicially conservative is to refrain from overturning the actions of the political branches unless there is a compelling constitutional reason to do so. Such a reason usually comes from a list articulated in a famous footnote to the Court's decision in United States v. Carolene Products. The principle behind the list is that if a statute infringes on a specific constitutional right or interferes with the basic functioning of democratic processes, the government must prove the necessity of the law; otherwise, the Court ought to assume that any reasonable law is constitutional. The point of such an approach to is prevent judges sitting "on high" from imposing their fundamentally undemocratic judgment on the creation of law. It calls for a careful -- not to say narrow -- reading of the words of the Constitution and a restrained application of judicial power.

Stone argues, however, that in the most important cases Scalia, Alito, Thomas, and Roberts tend to vote not according to these principles but according to their own personal political preferences and tastes -- exactly the thing judicial conservatives say it is wrong to do.

Just as referees and umpires ought not be remembered -- because it's always their worst decisions people recall -- the Supreme Court is ill served by its recent notoriety. Justice Scalia, who writes intentionally inflammatory dissents and makes more public speeches (and earns more money for them) than any other justice, is primarily responsible for all this public attention. In my view, this behavior is unconscionably selfish and destructive.

This problem goes beyond the mere reputation of the Supreme Court. It undermines the very foundations of reasoned public discourse in this country. By design, Congress and the executive branch are intended to pursue self-interested agendas, if not in the personal sense, at least in the political sense. But the judiciary is supposed to be dispassionate and neutral. Its  traditions, its methods, its selection, all are designed to insulate judges from the ephemeral demands of re-elections and other political contradictions. I am not naive enough to believe that judges never are influenced by public opinion or electoral competitions, and I am not even arguing that such influences always are bad. The Court at the moment, however, has lost its moorings, and we all are suffering as a result.

Muslims Did Perpetrate the Attacks of September 11, 2001 -- and it's OK to say so

Islam does not cause terrorism. It did not cause the attacks on the World Trade Center in 2001.

The people who perpetrated those attacks did claim, however, to be doing it in the name -- and for the cause -- of their warped, misinformed view of Islam. Osama bin Laden and the leaders of al Qaeda who planned the attacks declared war on the United States because it threatened their vision of what the world ought to be like: a constricted, misogynistic, brutal theocracy.

Most Muslims do not, and never did, support the policies and actions of the terrorist group. They do not recognize as their own the message that bin Laden espoused.

When we say that Muslims attacked Manhattan, and they did so out of misplaced religious zeal, we are not condemning all Muslims and we certainly are not condemning Islam. We are telling the story as it happened.

That's why the objections to a short (approximately seven-minute) video at the September 11 Museum in Manhattan are badly misplaced. People worry that visitors to the museum will mistakenly believe that all Muslims are to blame if Islam is mentioned at all. If that's true, then we have problems (and I am sure we do), but they are not ones that can be solved by excluding the information.

I suppose that the purpose of "interfaith panels" like the one lodging the complaint is to reflect sensitivities like these. But I do not understand  -- and find a bit distasteful -- the position that we should not mention the stated motives of the people who staged the attacks. It seems fundamentally dishonest, and therefore not what museums should do.

Can Corporations Really Have 1st Amendment Protections for Religion?

First Amendment jurisprudence gets more bizarre by the month under the current Supreme Court. First, in its Citizens United decision, the Court found that corporations have free speech rights. The conclusion there means not just that corporations can express opinions in ordinary situations, but that the government must protect such expression except under the most extraordinary circumstances. We all have an obligation to corporations in this scheme of things.

Now the Court appears to be open to the idea that corporations have religious rights, too.

We're not talking here about the right of individuals who own companies, but the companies themselves. The company at issue in Sebelius v. Hobby Lobby wants to refuse to pay for any insurance that would allow an employee to be reimbursed for contraception like IUD's. The owners say that they object to such measures on religious grounds, and that the Affordable Care Act would therefore violate their rights by providing such insurance.

Now, what if they made the same claim about vaccinations? That is, not only do the owners not want to be vaccinated or have their children vaccinated, but they do not want to be required to pay for insurance that would allow their employees to be vaccinated. Under this reasoning, they could claim religious exemption from almost any regulation simply by applying a twice-removed impact on them.

Note that the owners still want to distinguish themselves from their company for the purposes of liability and taxes, but not when it comes to the 1st Amendment.

Just like the recent Arizona law about religious rights in hiring, this argument is nonsense. If the First Amendment can be made to mean everything, it is made to mean nothing. It's dangerous and foolish to water our rights down like this.

The Law on Crimea

Crimea in the Russian Empire

Ukraine

The United States and many European governments have taken the position that the Russian annexation of Crimea is a blatant violation of international law. 

Maybe, but it's complicated.

First, we have the ouster of Viktor Yanukovich as "president" of Ukraine. No one thinks Yanukovich was anything other than a kleptocrat supported b the brutally corrupt regime of Vladimir Putin in Russia. Technically speaking, the protests that forced him to leave the country may not have been legal, even if they were perfectly justified as dissent against a bad government. If you adhere to the Lockean/ Jeffersonian  notion that Yanukovich's government was inherently illegal and illegitimate and therefore all protests against it, including those intended to cause its overthrow, are legal, then we have one conclusion. If you prefer the idea that he was elected in a flawed but legal election, then we have another.

Next, we have the concept of self-determination, the Wilsonian idea that every "people" has the right to affiliate itself with whatever nation it chooses. Under this framework, the Crimean referendum to quit Ukraine and join Russia is not only acceptable, but preferable.

But Vladimir Putin is the fly in this ointment. His actions are so thoroughly dishonest, corrupt and illegitimate that law-abiding people can hardly stand by and watch. Putin is working to bring back the totalitarian model of Stalin and Hitler, with rejection of emperical  truth at its core. He invades Crimea, and then denies that Russian troops are there, even as journalists take pictures of them. He steals billions of dollars from his own government and complains of capitalist corruption. He resorts to force first and last.

Putin's very existence is an affront to the rule of law, and he ought to be opposed by everyone all the time.

But I'm not sure what to make of the Crimean separation.

What "Freedom of Religion" Does Not Mean

Free enterprise appears to have rescued free government in Arizona. Business interests, mortified at the prospect of losing nearly all interstate commerce as a result of bizarre anti-gay legislation, pressured Governor Jan Brewer to veto SB 1062, thereby providing the public cushion she needed to act without political fallout.

Governor Jan Brewer, AZ

The real story here, though, is the continuing confusion of some Americans over what the First Amendment and its attendant principles mean. 

The proposed law defined "the exercise of religion" as the practice of or observance of religion, including the ability to act or refusal to act in a manner substantially motivated by a religious belief, whether or not the exercise is compulsory or central to a larger system of religious belief."  In other words, "freedom of religion" is the right to do whatever one wants or to refuse to do what one does not want, so long as one attaches the word "religion" to it. 

Those endowed with such expansive rights include "any individual, association, partnership, corporation, church, religious assembly, or institution, estate, trust, foundation or other legal entity." So, Coca-Cola Corporation or Philip Morris would have, for the first time in American legal history, freedom or religion. While tax collection is explicitly exempted, the state could not enforce any requirement that did not further a "compelling state interest." So, not only would the law allow the exclusion of service to gay people, it would also exempt people from smoking bans. Muslim taxi drivers could refuse to pick up single women. Atheists could refuse to accept US currency. 

Of course, this is nonsense. The First Amendment takes religion much more seriously that this law. By defining religious practice so loosely, Arizona legislators essentially defined it out of existence. What means everything means nothing.

One group of law professors, including Mary Ann Glendon of Harvard, defended the act with the argument that  "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."

But this defense is only in the context of a much worse Kansas law, that the professors acknowledge as being grossly one-sided and unfair.

Professor Mary Ann Glendon

Glendon and the others would like to expand the area of operation of religion in our discourse. Fair enough. But the law is still so vast and vague that even they should not defend it. If they really do want to encourage the application of religious principle, they should take "religious" and "principle" more seriously.