Archive | April 2013

Bush v. Gore, according to O’Connor

The following blog post from the NY Times highlights retired Justice Sandra Day O’Connor’s recent comments on the Bush v. Gore decision.  I have deleted the editorial content of the post because I want to hear your opinion.  Was SCOTUS’s  agreement to hear the case a good decision?  And what about the decision itself?  Is O’Connor’s after-the-fact commentary appropriate?  Was the Court’s decision a good one?

O’Connor Regrets Bush v. Gore

By ANDREW ROSENTHAL
Former Supreme Court Justice Sandra Day O'Connor testified before the Senate Judiciary Committee on July 25, 2012. T.J. Kirkpatrick/Getty ImagesFormer

Now she tells us. More than 12 years after the fact, retired Justice Sandra Day O’Connor said she believes it was a mistake for the Supreme Court to take Bush v. Gore and anoint George W. Bush as president of the United States.

“It took the case and decided it at a time when it was still a big election issue,” Justice O’Connor told the Chicago Tribune editorial board on Friday. “Maybe the court should have said, ‘We’re not going to take it, goodbye.’”

She continued: “Obviously the court did reach a decision and thought it had to reach a decision. It turned out the election authorities in Florida hadn’t done a real good job there and kind of messed it up. And probably the Supreme Court added to the problem at the end of the day.”

The result, she allowed, “stirred up the public” and “gave the court a less than perfect reputation.”

Justice O’Connor’s comments, as fascinating as they are, have to set some kind of record for detachment (she calls the court on which she sat for 25 years “it” — avoiding the more apt “we”) and also for understatement.

Granted, we don’t know for sure whether Justice O’Connor wanted to take Bush v. Gore. Only four justices have to agree to hear a case. But we do know that she sided with the majority on the actual decision, which stopped the recounting in Florida and gave a one-vote majority in the Electoral College to the man who lost the national popular vote.

Integrated Prom

So here’s where the Prom controversy in Georgia ended up last week.  Interesting to consider if pressure from outside of the town caused this change to occur.  How important was the role of the media?  Or did the town just respond to the passion and hard work of the students on this issue?

Media Coverage of Boston

In the following, Jon Stewart is critical of media coverage of the Boston bombings and their aftermath.  (He picks on the New York Post and CNN in this piece, but last night he worked over Fox and its misreading of the Constitution.)  Do you think that this criticism is justified?  Or did the media do the best it could do, under the circumstances, and provide us with responsible, informative coverage?

Should suspected terrorists have Miranda rights?

So there were/are three options for dealing with the suspect who is now in custody in conjunction with the Boston bombings:
(a)  Treat him like any other individual in custody; read him his Miranda rights and then question him.
(b)  Invoke the “public safety exception” and question him.  Then, at some point, read him his rights.
(c)  Treat him like an enemy combatant and keep him him custody until the war on terror ends, as suggested today by Senators McCain and Graham.

Watch the following and share your thoughts.

Arguments Against Expanded Background Checks

Here’s Mike Lee (R-Utah) speaking last week on the floor of the Senate about the provisions of the expanded background check legislation that was defeated yesterday.  His comments are a useful tool to help understand why the Senate rejected a measure that was supported by such a large majority of the American people.  Your thoughts?

Segregated Prom

Interesting (and timely) story about a segregated Prom in Georgia (yes, in 2013).  Since it’s hosted by parents, it doesn’t violate the Constitution.  So should we be concerned or should we allow local traditions to continue without interference?  And one wants to bring about change, how does one do that in this case?

States’ rights and religion

So the following isn’t big news, but it’s of interest because of its relevance to the cases we have studied.  Note the precedents that are referenced!

Could North Carolina actually declare a state religion?
First Amendment, Shmirst Amendment
By Keith Wagstaff | 1:07pm EST
Rep. Harry Warren, one of the two North Carolina lawmakers who filed a bill to declare a state religion.
Rep. Harry Warren, one of the two North Carolina lawmakers who filed a bill to declare a state religion.


As amendments go, “Congress shall make no law respecting an establishment of religion…” is kind of a biggie. Don’t tell that to the North Carolina lawmakers behind the Defense of Religion Act.

The bill asserts that “the Constitution of the United States of America does not prohibit states or their subsidiaries from making laws respecting an establishment of religion.”

According to The Huffington Post, the bill “was filed in response to a lawsuit to stop county commissioners in Rowan County from opening meetings with a Christian prayer,” leading us to assume that the religion they want to establish isn’t Duke basketball. Could legislators in North Carolina actually pull this off?

It’s not likely. Rick Ungar of Forbes points to Lemon v. Kurtzman, the U.S. Supreme Court case that established the “Lemon Test” for whether a state law is violating the First Amendment:

The law or state policy must have been adopted with a neutral or non-religious purpose.
The principle or primary effect must be one that neither advances nor inhibits religion.
The statute or policy must not result in an “excessive entanglement” of government with religion. [Forbes]

Declaring an official religion doesn’t seem to pass the test. Not that states haven’t tried to exempt themselves from federal law before.

“We saw this in the aftermath of Brown v. Board of Education,” Michael Bitzer, a professor at Catawba College, tells NBCNews.com. “The belief is that the states hold more power than the federal government. If the federal government does something, the states can simply ignore it.”

Philip Bump of The Atlantic Wire says the Republicans are pinning their hopes on the interpretation that “since the Tenth Amendment says that anything not delegated to the federal government by the Constitution becomes the province of the states, that means North Carolina can determine for itself what is and isn’t unconstitutional.” This strategy, he notes, has been tried by states many times before and has always failed.

The bill might have had a chance, Ian Millhiser of Think Progress says, if the Fourteenth Amendment hadn’t been ratified in 1868:

While the early Constitution envisioned “rights” as little more than a battle between central and local government, the Fourteenth Amendment ushered in a more modern understanding. Under this amendment, “[n]o State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States,” nor may any state “deprive any person of life, liberty, or property, without due process of law.” [Think Progress]

Don’t worry, if the North Carolina lawmakers behind the bill fail, they can always go the Texan route and try to secede.

An argument against same-sex marriage…

Given last week’s Supreme Court oral arguments, I thought it important to post some views on same sex marriage.  The following may be a point of view you are unfamiliar with, but which is quite widely followed.  It comes from Erick Erickson, a well-known conservative blogger who publishes redstate.com.  I have edited his post for the sake of brevity, and you are welcome to respond (in a civil manner, please…).

‘Gay Marriage’ and Religious Freedom Are Not Compatible

By: Erick Erickson (Diary)  |  March 26th, 2013 at 06:30 AM  |  267

The kids these days on the right are full of a great libertarian notion that “hey, let’s just get the government out of marriage.”

“Rock on,” say other libertarians.

They then all smugly self-congratulate themselves, pat themselves on the back, and move on to other issues.

What they ignore is that the left will never take marriage out of the hands of the government. The left cannot. But it goes beyond that. The left cannot take marriage out of government because for so long it has been government through which marriages were legitimized to the public and the left must also use government to silence those, particularly the religious, who refuse to play along…

The left has done an admirable job in secular society making the case that gay marriage merely allows a class of people to be happy and have what everyone else has.

The front on which the gay rights movement has failed is the religious and, in particular in the United States, the Christian front.

From Matthew 19:4-6:

“Haven’t you read,” he replied, “that at the beginning the Creator ‘made them male and female,’and said, ‘For this reason a man will leave his father and mother and be united to his wife, and the two will become one flesh’? So they are no longer two, but one flesh. Therefore what God has joined together, let no one separate.”

The Christian Left would prefer to view Matthew 19 as a passage on divorce, which is discussed. But they willfully ignore Christ’s definition of what a marriage is — one man and one woman united to become one.

As much as many would ignore, obfuscate, or try to confuse the beginning of Matthew 19, Christ makes it very clear. The Creator made a male and a female and the two become one. That is marriage in Christianity, despite what a bunch of progressive Christians who have no use for the Bible would have the world believe…

As long as there are still Christians who actually follow Christ and uphold his word, a vast amount of people around the world — never mind Islam — will never ever see gay marriage as anything other than a legal encroachment of God’s intent…

Already we have seen florists, bakers, and photographers suffer because they have refused to go along with the cultural shift toward gay marriage. There will be more.

Once the world decides that real marriage is something other than natural or Godly, those who would point it out must be silenced and, if not, punished. The state must be used to do this. Consequently, the libertarian pipe dream of getting government out of marriage can never ever be possible.

Within a year or two we will see Christian schools attacked for refusing to admit students whose parents are gay. We will see churches suffer the loss of their tax exempt status for refusing to hold gay weddings. We will see private businesses shut down because they refuse to treat as legitimate that which perverts God’s own established plan. In some places this is already happening…

Now many of you have read through this and you are shaking your head in denial. “No way this is possible,” you say. But then just a decade ago no one seriously considered gay marriage as possible. And we are already seeing signs we’re headed in this direction. It’s coming. Get ready.

Libertarians will have to decide which they value more — the ability of a single digit percentage of Americans to get married or the first amendment. The two are not compatible.

Transgender Rights in Schools

The following is from the NY Times over spring break.  What do you think?

 

Dispute on Transgender Rights Unfolds at a Colorado School

By

FOUNTAIN, Colo. — Coy Mathis was born a boy. But after just a few years, biology succumbed to a more powerful force.

A buzz cut grew into long hair. Jeans gave way to pink dresses. And the child’s big cheeks trembled with tears when anyone referred to Coy as male.

Halfway through kindergarten, after consulting with doctors, Coy’s parents informed their child’s school that Coy identified as a girl and should be treated as one — whether that meant using feminine pronouns to describe her or letting Coy wear her favorite dresses.

“It became really clear that it wasn’t just about liking pink or feminine things,” said Kathryn Mathis, Coy’s mother, recounting how Coy had anxiety attacks when people treated her as a boy. “It was that she was trying so hard to show us that she was a girl.”

In December, however, when Coy, 6, was a few months into the first grade, the Mathises angrily pulled her out of school after being told that she could no longer use the girls’ bathroom but could instead use a gender-neutral restroom.

A letter from a lawyer for the Fountain-Fort Carson school district explained that “as Coy grows older and his male genitals develop along with the rest of his body, at least some parents and students are likely to become uncomfortable with his continued use of the girls’ restroom.”

Now, Coy’s case is at the heart of legal dispute that is likely to test Colorado’s anti-discrimination law, which expanded protections for transgender people in 2008.

The case is unfolding in this small town just south of Colorado Springs, as other states across the country seek to clarify their policies relating to transgender students.

It is an issue that has become more commonplace in recent years as advocacy groups push to ensure that school districts are more attuned to the needs of transgender children.

According to the Transgender Legal Defense and Education Fund, which has filed a complaint with Colorado’s civil rights division on the Mathises’ behalf, 16 states and the District of Columbia offer some form of legal protections for transgender people.

In many instances, those protections extend to schools, where the most mundane rituals like going to the bathroom and using a locker room can be especially traumatic for transgender students.

These days, even in states where no protections exist, school districts have become more amenable to meting out a solution when a dispute arises, said Michael D. Silverman, the group’s executive director.

Mr. Silverman cited a recent Kansas case handled by his group, in which a 10-year-old biologically male student wanted to be known by a female name and dress like a girl. The school, he said, ultimately agreed.

“In most cases, when you’re dealing with children this age, nobody is usually fussing about this sort of thing,” Mr. Silverman said. “The schools are much more willing to work with families to ensure that their child is successfully integrated.”

Nonetheless, conflicts over gender identity are, understandably, sensitive territory for administrators, transgender students and their families.

Last month in Batesville, Miss., a group of high school students protested after a transgender classmate was permitted to wear women’s clothing. The students felt that their classmate was being given preferential treatment given the school district’s gender-specific dress code, according to local news reports.

The Massachusetts Department of Elementary and Secondary Education recently issued guidelines on the treatment of transgender students, two years after the legislature passed a law banning discrimination based on gender identity.

The guidelines explain the new law and lay out scenarios that schools might encounter.

“Our primary concern is to make sure that every child has a safe and supportive learning environment,” said Jonathan Considine, a spokesman for the department.

The guidelines point out that deciding how best to handle bathroom access for transgender students can be especially challenging. The department recommended that students be permitted to use bathrooms that conform to the gender they identify with and also suggested that schools create gender-neutral restrooms.

“I have been stunned over the last three years by the explosion of concerns and interest and outreach coming from educational professionals around transgender issues,” said Eliza Byard, the executive director of the Gay, Lesbian and Straight Education Network.

Still, gay and transgender advocates say transgender students, while typically a small minority, are particularly vulnerable to bullying and harassment.

In a 2012 study by Dr. Byard’s organization, many elementary school students reported hearing comments from fellow students about how both boys and girls should act and look.

About a third of teachers surveyed said that elementary school students who did not conform to gender norms would feel uncomfortable at their schools.

The Mathis case has drawn particular attention, advocates said, because Coy is so young and the Colorado school district had clashed with her parents over what was best.

In that case, the state’s civil rights division is looking into whether the district violated Colorado law by prohibiting Coy from using the girls’ bathroom.

A lawyer for the district, Kelly Dude, declined to comment. In recent public statements, the school district criticized the Mathises for widely publicizing Coy’s situation while it was under review and said it had acted “reasonably and fairly” in the matter.

In a letter to Mr. Silverman, Mr. Dude wrote that Coy was allowed to wear girls’ clothing to school and was referred to as female, as the Mathises had requested. Though Coy could no longer use the girls’ restroom at her elementary school, Mr. Dude said she still had access to staff bathrooms and a gender-neutral restroom in the school’s “health room.”

Mr. Silverman countered that the school district was, he said, “punishing a little girl for what may or may not happen down the road.”

At the Mathises’ home along a stretch of rolling hills, Coy’s parents said they were still mystified over what prompted the school district to change its mind, especially because school administrators seemed so supportive at first.

“It didn’t make any sense to me,” said Jeremy Mathis, a stocky Marine veteran and Coy’s father, noting that Coy had made plenty of friends and grown noticeably happier since identifying as a girl.

“This is elementary school, and you’re singling out this one kid and saying she has to use a special bathroom?”

In the meantime, Coy and her sister and brother — they are triplets — are being home-schooled. While torn about it, the Mathises said they would not return them to school until Coy is allowed to use the girls’ bathroom again.

In the backyard, Coy played happily with her bike, dirt dusting her face and her pink, sparkly boots. She said she would rather be back in school with her friends but knows why she is not.

“They’re being mean to me,” she said. “And they’re telling me that I’m a boy when I’m really a girl.”