Sunday, August 29, 2010

Tim Tebow Will "Likely" Play Against Steelers

According to the Denver Post, Broncos quarterback Tim Tebow will likely play in tonight's preseason finale against the Pittsburgh Steelers. Tebow sustained an injury to his ribs during the first preseason game.

Unfortunately for the Broncos, however, many other players will remain sidelined with injuries. Also, for those Tebow fans out there, he is not expected to enter the game until around the fourth quarter.

Friday, August 27, 2010

Tim Tebow: Will He or Won't He Play?

Denver Broncos quarterback Tim Tebow is still nursing bruised ribs he sustained nearly two weeks ago during a preseason game against the Cincinnati Bengals. Tebow suffered the injury during a touchdown run on the last play of the game. Tebow compiled the best statistics of all of the rookie quarterbacks who played during week one of the preseason.

Since that time, however, Tebow has missed a preseason game against the Detroit Lions, but he returned to practice this week. Nevertheless, according to the Denver Post, it remains unclear whether or not he will play during the next game against the Pittsburgh Steelers.

Kentucky Lawyer Faces 6-Month Contempt Sentence For Obeying The Law

Amelia Mikki Adams, a Louisville, Kentucky, lawyer, received a 6-month contempt sentence for refusing to reveal the name of her minor client to a judge. Adams represented "J.J.," a 17-year-old female, who sought judicial approval of her decision to have an abortion.

According to Supreme Court precedent, states can require minors to obtain parental consent prior to having abortions. These states, however, must provide a "judicial bypass" option for mature minors to seek an abortion without parental consent.

During the bypass hearing, J.J "testified that her parents drink to the point of intoxication every day, leaving her and a younger sister to make their own meals and take care of themselves. . . ." The judge ruled that she was mature enough to have an abortion without parental consent.

Later the judge demanded that Adams reveal J.J's name, saying that she wanted to report the parents for child neglect. Adams refused because Kentucky law allows for anonymous bypass hearings and because ethical rules for attorneys prohibit attorneys from disclosing confidential client information. Although state law requires persons to report suspected incidents of child neglect or abuse, the law contains an exception for abuse learned of through an attorney-client relationship.

After the judge continued pressing for the information, Adams told the judge that she only knew her client's first name. Adams, however, immediately withdrew this comment, stating that she misspoke. The judge, however, later sentenced Adams to 6 months of incarceration for misleading the court and for failing to reveal J.J.'s name. The contempt ruling is currently under appeal, and the judge has stayed the contempt ruling pending appeal.

My Take

While Adams was wrong if she intentionally mislead the judge, the judge's request seems to violate Kentucky's bypass statute and its attorney ethical rules (which are similar across the nation). This alone would probably provide a basis for the appeals court to reverse the contempt ruling.

Improper Procedure Finding Contempt?

There is another possible angle that the appeals court could consider, but which media accounts have ignored. There a several kinds of contempt -- coercive and compensatory civil contempt and criminal contempt. Furthermore, contempt can be direct, or in the presence of the court, or indirect, taking place outside of court.

If a court imposes imprisonment or a fine under circumstances where the individual has no way to avoid the penalty, this constitutes criminal contempt. Contrast this with the situation where the court imposes a daily fine or jail term in order to coerce compliance with its orders (coercive civil contempt).

Supreme Court precedent requires courts to extend more due process to persons charged with criminal contempt. Although Kentucky law and the Federal Rules of Criminal Procedure permit summary proceedings for direct criminal contempt, these rules exist to prevent disruption to the legal proceeding. Although the facts of this case are unclear, it seems that the proceeding was virtually over and the court had already rendered its decision when the judge found Adams in contempt.

Under circumstances such as these, it is unclear whether a summary proceeding without notice or a hearing is permissible. As the Supreme Court held in UAW v. Bagwell, the leading case on this issue:
Summary adjudication becomes less justifiable once a court leaves the realm of immediately sanctioned, petty direct contempts. If a court delays punishing a direct contempt until the completion of trial, for example, due process requires that the contemnor's rights to notice and a hearing be respected. There "it is much more difficult to argue that action without notice or hearing of any kind is necessary to preserve order and enable [the court] to proceed with its business. . . ." Direct contempts also cannot be punished with serious criminal penalties absent the full protections of a criminal jury trial (italics added).
Because the facts surrounding the contempt ruling are not thoroughly reported in press accounts, it is unclear at this point whether the Kentucky judge complied with Supreme Court doctrine. Adams could also argue that the 6-month sentence constitutes a serious penalty under the circumstances. Regardless, Adams has a great basis for an appeal, given the weight of law that leans to her side.

UPDATE: This article was edited for clarity.

Another Mississippi School Makes Headlines for Bigotry: Racially Segregated Student Council Positions

Another school in Mississippi is making the headlines for its bigotry. Earlier this year, a Mississippi school infamously told a lesbian student that she could not attend the school prom with her date. After the student sued the school, it canceled the prom. Facing national criticism and a lawsuit, the school resorted to trickery. It threw a sham prom for the lesbian and a few other students, while their classmates went to the real prom.

Now, another Mississippi school is making headlines for its bad behavior. MSNBC reports that Nettleton Middle School in Nettleton, Mississippi, has racially segregated the student council positions at the school. According to a memorandum that school officials distributed to students, only whites can run for the position of president. Only blacks can run for Vice President of the 8th grade class, while only whites can run for that position in 6th and 7th grade. The positions of "Secretary-Treasurer" and "Reporter" are similarly segregated. If this news is true, it proves, once again, that there are places in this country where the legal command of Equal Protection means nothing at all.

UPDATE: MSNBC reports that the school has invalidated the policy. Now, it will allow all students to run for the office they choose. Interestingly, school officials say that they rotate the races each year and use the policy to ensure minority representation. If this is the school's actual goal, it is legitimate. Nevertheless, it is carried out in a very bad manner. Furthermore, if black students cannot get elected without this policy, then it appears that white students, who outnumber blacks, are engaging in racialized voting (which exists even for adults). The students need lessons on tolerance, not division.

So-Called "Holdout" Blagojevich Juror Speaks Out

Media headlines describe JoAnn Chiakulas as the "holdout" juror in the trial of former Illinois governor Rod Blagojevich. This label, however, implies that she acted unreasonably when she decided that the prosecution did not prove beyond a reasonable doubt that Blagojevich conspired to sell the US Senate seat that President Obama once held.

Now, Chiakulas has told her side of the story during an interview with the Chicago Tribune. Based on this interview, Chiakulas seems quite reasonable and professional.

Chiakulas comes across as a very level headed and conscientious juror. She tells the Chicago Tribune that "I could never live with myself if I went along with the rest of the jury. . . .I didn't believe it was the correct vote for me."

The Chicago Tribune explains why Chiakulas believed that the prosecution failed to meet its burden:
Chiakulas said she found Blagojevich's recorded statements on the Senate vacancy to be so scattered and disorganized that his actions did not reach the level of a criminal conspiracy.

One day he chattered about being the Indian ambassador, for example, then in the next conversation he discussed another plan. In the space of a few weeks, he talked about appointing, among others, Illinois Attorney General Lisa Madigan, Oprah Winfrey or himself.

She said she never saw him formulate a clear plan to sell the seat.
Chiakulas also described tension in the deliberation room, as other jurors tried to pressure her into voting guilty on the conspiracy charge. She also said that some of the women jurors felt that some male jurors did not respect their opinions:
Other jurors have acknowledged pressuring Chiakulas to change her vote on the Senate seat, with one man going so far as to switch chairs so he could "look her in the eyes" during deliberations. She was yelled at and told she wasn't being logical, jurors said.

One person asked the judge for a copy of the juror's oath, implying that Chiakulas wasn't fulfilling her obligation. Chiakulas and at least two other female jurors said they felt belittled and questioned whether their gender had something to do with their treatment.
Chiakulas did not have kind words for Blagojevich, whom she described as "narcissistic" and as an "idiot." Ultimately, she voted her conscience after agonizing over the evidence for weeks. The media should salute Chiakulas for standing her ground and for doing precisely what jurors are supposed to do.

Friday, August 20, 2010

Reuters: Wyclef Jean Ineligible to Run for Haiti Presidency

Reuters is reporting that hip hop star and aspiring politician Wyclef Jean failed to meet eligibility requirements to run for president of Haiti. Election officials released their ruling Friday evening.

I Can See The First Amendment From My Front Porch: Palin's Botched Defense of Dr. Laura

Sarah Palin recently defended Dr. Laura Schlessinger after she had a sudden bout of N-word diarrhea during her radio show. After the public outcry, Schlessinger ended her radio program, but she screamed foul play, arguing that her constitutional rights were violated.

Professor Palin offered her trademark "common sense" advise to Schlessinger in a series of Twitter posts. In so doing, Palin proves, yet again, that common sense is merely an excuse for not reading.

Palin sent the following message to Schlessinger:
“Dr.Laura: don't retreat ... reload! (Steps aside bc her 1st Amend.rights ceased 2exist thx 2activists trying 2silence"isn't American,not fair")"
She then posted a follow-up:
“Dr.Laura=even more powerful & effective w/out the shackles,so watch out Constitutional obstructionists. And b thankful 4 her voice, America!)"
Apparently, the Bloggacuda does not know much about the First Amendment, because Schlessinger's right to free speech remains fully intact. The First Amendment Center, a nonprofit organization devoted to free expression, has fully rebutted Palin's botched constitutional analysis. The organization also makes the interesting argument that while Palin often criticizes the government for trampling upon the Constitution, it is clear that she lacks a basic understanding of some of its central principles.

As a Professor of Constitutional Law, I could write more on this issue, but the First Amendment Center does a great job. Here is a clip from the article:
• The First Amendment protects us from the government, and not from other Americans who disagree with what we have to say. “Congress shall make no law” — the first five words of the First Amendment — say it all: No government body can limit our rights to speak out. In this case, there’s no government action, just public outrage and pressure.

• Boycotts are also protected by the First Amendment. Dr. Laura complains about being “bullied” by those who might pressure her radio affiliates or advertisers, but boycotts are a time-honored use of the First Amendment. . . .

• Efforts to punish controversial speech comes from the right and the left. It’s true that liberal organizations are attacking Dr. Laura for use of the racial epithet, just as conservative organizations burned Dixie Chicks CDs when Natalie Maines told a London audience that she was embarrassed that President Bush came from Texas. . . .

• Dr. Laura’s First Amendment rights are alive and well. Although she’s leaving her radio show, she says she’ll continue to share her views through public speaking, TV interviews, in print, online, and in a new book due in January, all made possible by the First Amendment.
So, is Palin wrong again? You betcha!

Thursday, August 19, 2010

Howard Dean's Epic FAIL: Former Governor Refuses to Back Down From Opposition to Mosque

Howard Dean has published a statement on Salon.com that forcefully defends his controversial statements regarding the Cordoba House (or so-called "Ground Zero Mosque"). Yesterday, Dean said that the mosque proponents needed to compromise and that they should pick another site. Today, facing heated criticism from progressives, Dean has defended his comments.

Dean claims that he supports religious freedom and says that it is undeniable that the mosque proponents have the right to build near ground zero. Dean, however, argues that they should accept a compromise:
My argument is simple. This Center may be intended as a bridge or a healing gesture but it will not be perceived that way unless a dialogue with a real attempt to understand each other happens. That means the builders have to be willing to go beyond what is their right and be willing to talk about feelings whether the feelings are "justified" or not. No doubt the Republic will survive if this center is built on its current site or not. But I think this is a missed opportunity to try to have an open discussion about why this is a big deal because it is a big deal to a lot of Americans who are not just right wing politicians pushing the hate button again. I think those people need to be heard respectfully whether they are right or whether they are wrong.
Dean also tries to rebut the assertion that his arguments could justify other forms of intolerance, like homophobia and racism:
This has nothing to do with the right to build and unlike same sex marriage or the civil rights movement it is not about equal protection under the law. The rights of the builders are not in dispute. This is about ending the poisonous atmosphere engendered by fear and hate, and in order to do that there has to be genuine listening, hearing and willingness to compromise on both sides.
Epic FAIL
Dean's arguments, to use the vernacular of a younger generation than my own, are an epic FAIL. I do not doubt that Dean agrees that the individuals have a right to build the mosque. Dean also concedes that many individuals oppose the mosque because they are bigots.

Dean's arguments, however, fail to persuade me because he wants a group of seemingly well intentioned religious individuals to capitulate to irrational fears, bigotry, and "emotions" of individuals who oppose the mosque. No tangible evidence or logical argument can link mosque proponents with the 9/11 attackers.

Religious bigotry, however, makes it impossible for many mosque opponents to distinguish Cordoba House proponents from the radical individuals involved in 9/11. Rather than countering this bigotry, Dean argues that Muslims should acquiesce to its existence. This is hardly an emancipatory rhetoric.

Dean also fails in his effort to distinguish this discussion from other civil rights issues. Many bigots have said "I am not a racist, but. . . ." Others have said, "I have nothing against gay people, but. . . ." During the Civil Rights Movement, many liberals (e.g., President John F. Kennedy) claimed to agree that racism and segregation were wrong, but they urged black leaders to accept compromise, modify their demands, wait until society was more understanding, and refrain from protest. Thurgood Marshall famously said that the Negro waited nearly a century for Americans to respect the constitutional guarantee of Equal Protection. Further compromise was unacceptable.

The same twisted logic that Marshall rejected pervades discussions of Islam in this setting. It also serves as the basis for Dean's comments. While many people who oppose the mosque might stop short of explicitly denying that its proponents have the right to do so, this distinction is meaningless. By linking all Muslims with 9/11, the mosque opponents render their professed religious tolerance a nullity. Dean, who once excited progressives with his position on social issues, should be ashamed of his stance towards the mosque.

UPDATE: Howard Dean conducted an interview with Glenn Greenwald on this subject. During the interview, he tried to walk away from his argument that moving the mosque would be a "better idea." Instead he said he simply seeks discussion and compromise. Dean also criticized progressives for being inflexible.

Dean denied Greenwald's assertion that his arguments mirror efforts to get civil rights leaders to curb their activism due to social pressure. I highly recommend that Dean read Dr. Martin Luther King's Letter From A Birmingham Jail. It discusses the issue of delay, compromise, the fear of white moderates, and injustice.

Tim Tebow Hurt; Misses Second Practice

Former Florida Gators and current Denver Broncos rookie quarterback Tim Tebow apparently injured himself during last Sunday's preseason game against the Cincinnati Bengals. Tebow suffered bruised ribs and has been wearing extra protection for his abdomen.

PS: As an avid Gator sports fan and native of Gainesville, Florida, I exercise executive authority to introduce occasional sports news on this otherwise legal and political blog.

Do Americans Really Believe in Religious Freedom and Equality? (UPDATED)

After President Obama defended the right of the planners of the Cordoba House (the so-called "Ground Zero Mosque") to locate their religious center near the site of the former World Trade Center, he received criticism from progressives and conservatives. Both sides argued that he should comment on the wisdom of the project -- rather than limiting his position to a discussion of religious freedom and equality.

Is Religious Tolerance A "Nonissue"?
Many of Obama's critics cited a Fox News poll, which shows that 61% of Americans believe that the Cordoba House proponents have the "right" to locate the building near Ground Zero. Although the poll shows that more than 1/3 of Americans do not recognize the constitutional rights of the Cordoba House proponents, Obama's critics argue that this poll proves that religious freedom is a nonissue.

According to Obama's critics, he had taken a safe and cowardly position (yet again). Sarah Palin, via Facebook, demanded that Obama state what he believed "should" occur. Ben Smith of Politico described the rights question as a "trivial" point.

The assumption of these commentators is plain: Americans widely support religious freedom and equality, but they split on the wisdom of the Cordoba House. The rhetoric of opponents of the religious center, however, reveals that many of them actually do not support religious freedom.

People Do Not Like To Reveal Bias in Polls
Critics who cite polling data which purport to show that Cordoba House opponents support religious freedom surprisingly view the polls uncritically. A wealth of analysis establishes that people feel uncomfortable revealing their personal biases and bigotry in polls. Accordingly, when pollsters ask respondents whether they generally support "equality" or whether they oppose "discrimination," overwhelmingly, the respondents favor equal treatment. Yet, when pollsters ask them more specific questions related to equality, the numbers change.

For example, polls show that a large majority of Americans do not believe that sexual orientation alone should justify discrimination. Nevertheless, many of these same respondents disagree with same-sex marriage or believe that gays and lesbians should not teach children.

There is nothing unique about religion that would preclude a similar pattern in polls related to religious tolerance. Indeed, a new Time Magazine survey suggests that on specific questions regarding religious tolerance and Muslims, many Americans support unequal treatment.

Here are some results from the survey:
Twenty-eight percent of voters do not believe Muslims should be eligible to sit on the U.S. Supreme Court. Nearly one third of the country thinks adherents of Islam should be barred from running for President — slightly higher than the 24% who mistakenly believe that the current occupant of the Oval Office is himself a Muslim. . . .

And while more Americans are open to the idea of having a mosque built in their neighborhoods than near Ground Zero, it's still not an overwhelming majority; 55% of respondents say they would favor the construction of an Islamic community center and mosque two blocks from their own homes, and an equal number say they believe most Muslims are "Patriotic Americans."
The poll results belie the assumption that Americans consistently support religious freedom and equality. Instead, significant numbers of Americans harbor biases against Muslims (including a growing number who wrongfully believe Obama himself is a Muslim).

Cordoba House Opponents Stereotype Muslims As Terrorists
Cordoba House opponents also contradict their own message of religious tolerance by stereotyping Muslims as terrorists -- and in particular, the 9/11 attackers. According to the Time Magazine survey, 70% of Americans believe that building the Cordoba House near Ground Zero "would be an insult to the victims of the attacks on the World Trade Center."

There is absolutely no evidence that links planners of the Cordoba House with the World Trade Center or terrorism. Indeed, the proponents say that they want to construct the center as a gesture of goodwill.

Nonetheless, large numbers of Americans believe that the mere presence of a center dedicated to Islam would constitute further harm to the victims of 9/11. Only a prejudicial view that associates Muslims with terrorism could explain this belief. Many people who claim that they support the rights of the Cordoba House planners, but who feel that the project should not go forward, likely harbor biases against Muslims.

Final Take
Critical readers should not take general polling data on religious tolerance at face value. Instead, they should analyze the public's views on specific questions related to tolerance. Emerging polling data suggest that while large numbers of Americans claim to support religious freedom, they also hold stereotypical views of Muslims.

President Obama entered this political thicket by expressing support for religious freedom and equality. Yet, liberals and conservatives criticized his approach as moderate and evasive. They also treated religious freedom as a nonissue. Both sides need to reevaluate their arguments.

When liberals dismiss religious freedom as an irrelevant issue, they trivialize the manifestation of anti-Muslim bigotry, which they claim to oppose. When conservatives, moderates and liberals associate a Muslim community center with the harm of 9/11, they betray their own stated commitment to religious tolerance.

UPDATE: The Time Magazine and Fox News polls both confirm that around 1/3 of Americans seemingly would deny many rights to Muslims. The same amount profess religious tolerance and have no problem with the Cordoba House. Another one third profess religious tolerance but disagree with the Cordoba House. Progressives have accepted at face value the religious tolerance of the latter group. Uncritical acceptance of this group's professed religious tolerance is a foolhardy way to approach to the issue.

UPDATE II: A new poll by The Economist provides even stronger evidence of anti-Muslim sentiment among Americans.

Do Not Forget: 50,000 Troops Will Remain in Iraq

The media is reporting that the last combat brigade will soon leave Iraq. Some commentators are declaring an official end of the war.

Yet, lost beneath the headlines and fanfare is the following fact: around 50,000 troops will remain in Iraq. The government is not describing them as combat troops. Instead, it is calling these soldiers advisers, as the Washington Post reports:
By the end of this month, the United States will have six brigades in Iraq, by far its smallest footprint since the 2003 invasion. Those that remain are conventional combat brigades reconfigured slightly and rebranded "advise and assist brigades." The primary mission of those units and the roughly 4,500 U.S. special operations forces that will stay behind will be to train Iraqi troops.
The Iraq War will continue to exact financial and physical costs on the United States and the people of Iraq.

Wednesday, August 18, 2010

Howard Dean on Mosque: "I Think Another Site Would Be A Better Idea"

Howard Dean has come out against Park51 (the so-called Ground Zero Mosque). During a radio interview, Dean called for a "compromise" and denied that the issue had anything to do with the "rights" of Muslims to have a place of worship.

When asked whether he thought the project should move to another location, Dean said that "I think another site would be a better idea." The tape appears below this post.

Dean is a famed liberal who has challenged moderate Democrats on many issues. During his unsuccessful presidential run in 2004, he famously said that he represented the "Democratic wing of the Democratic Party," a slight to hawkish candidates like Senator John Kerry.

But as Glenn Greenwald points out, Dean's position on this issue aligns him with folks like Newt Gingrich. His opinion also mirrors Sarah Palin's. Furthermore, Dean's position on this issue makes him more conservative than folks like Ted Olson and Governor Chris Christie of New Jersey.

Dean seems to want to end the conflict, but he does so by denying the religious rights at stake. President Obama's stance that acknowledges religious freedom remains a welcome intervention on this subject among Democrats.

UPDATE: Dean tries to defend his comments. As the kids today would say: FAIL.

Tuesday, August 17, 2010

BLAGOJEVICH VERDICT IN: Guilty of Single Minor Charge

After two weeks of deliberation, the jury has returned a verdict in the corruption trial of former Illinois governor Rod Blagojevich. Although prosecutors charged Blagojevich with 24 counts, the jury only found him guilty of a single charge of lying to federal investigators. The jury deadlocked on the remaining charges. Prosecutors have announced that they will retry Blagojevich.

My Take
The federal prosecutors should be embarrassed. They described this trial as the case of the century. The charges cost Blagojevich his political office and resulted in a battle over his decision to name Roland Burris to the Senate.

After weeks of proceedings, multiple charges, and supposedly scandalous telephone recordings, the jury only convicted Blagojevich of one of the most minor charges. Furthermore, the charge of lying to investigators is clearly a "safety" charge. Prosecutors rely upon it when they cannot prove the primary accusations.

An insufficient number of jurors bought the prosecution's main case, but jurors agreed that Blagojevich lied to the FBI. Personally, I think this particular charge is bizarre for our legal system. The charge does not require that the lie occur during sworn testimony, and it seems to contradict the basic right not to speak with investigators at all.

Monday, August 16, 2010

Appeals Court Grants Stay in Prop 8 Case

The US Court of Appeals for the Ninth Circuit has ordered a stay of a federal court ruling that invalidated Proposition 8 -- a California constitutional amendment that bans same-sex marriage. The court also established a briefing schedule and set oral arguments for December 6. Accordingly, the stay will likely remain in effect until late this year or even early 2011.

Finally, the court also requested briefing on the "standing" issue. Depending on how the court interprets existing caselaw, it could determine that the private organizations that oppose same-sex marriage lack standing to bring the appeal.

UPDATE: Several nonlawyer commentators have construed the court's request for argumentation on the standing issue as an indication that it is inclined to rule against the private organizations. I would not read that language so broadly. This is typically how courts ask for briefing on procedural matters that could preclude a ruling on the merits. It is not a glimpse into the court's thinking on the standing issue. In fact, I highly doubt that the panel has actually thought much about the issue.

Conservative Bloggers Have Complete Meltdown, Fearing Harvard Divested From Israel

Many conservative blogs have been in complete meltdown mode after Globes Online reported that Harvard University had sold off its holdings in Israeli companies. Conservatives, of course, believed that Harvard had caved in to demands of evil Islamic terrorists in its student body (sarcasm).

The most paranoid headline I could find is this deliciously neurotic title from Atlas Shrugs: Harvard Whores for Jihad: Harvard University Fund Sells all Israel holdings. But then again, check out this worried blogger who asks "Et Tu, Harvard?" and blasts the university for preferring "oppressors" (like Saudi Arabia) over Israel.

There is one major problem with the melodramatic conservative meme: it is not true. Harvard has released a statement that responds to the madness. Naturally, Harvard sold its assets for the same reason that most investors do: for financial purposes.

Harvard invested in an emerging market fund that included Israeli assets. Recently, the fund manager categorized Israel as a developed economy, and Harvard rebalanced its holdings by reinvesting those shares in other emerging economies. Harvard, however, still invests in developed economies -- including Israel.

Sunday, August 15, 2010

Sarah Palin's Two-Faced Arguments Regarding "Ground Zero Mosque"

The so-called Ground Zero Mosque occupied the headlines over the weekend, following President Obama's endorsement of the group's right to build the mosque. Although Obama plainly limited his comments to a discussion of religious freedom and equality, the media reported the story with a much broader sweep. According to most media reports, Obama had, in fact, endorsed the decision making behind the location of the mosque.

Yesterday, he clarified his remarks, which led to another round of botched media reporting. Now, Obama has supposedly "walked back" or "narrowed" the scope of his comments. He did no such thing.

The Bloggacuda Enters the Fray

Liberals and conservatives alike have criticized Obama's imaginary walk-back. Conservatives, however, now argue that Obama should express his opinion regarding the "wisdom" of the project. The Bloggacuda herself -- Sarah Palin -- scribbled out a Facebook entry demanding that Obama state whether mosque proponents should build the mosque near ground zero.

Palin, like other conservatives, claims that she agrees that the mosque proponents have the right to build the mosque, but she argues that they should not. She claims that building the mosque will cause religious tension, and she wants Obama to enter this thicket. This is a contradictory position.

Religious Freedom Means The Government Does Not Make Decisions For Religious Groups

Religious freedom is guaranteed by the First Amendment. The US Constitution allows mosque proponents to construct the mosque if they, as Obama stated during his speech, comply with local and state laws. Generally, it is not the role of government to tell religious individuals and organizations whether and how they should exercise their constitutional rights, particularly when, as here, the government's input could have a decisive impact.

If Obama told Palin that he respects her First Amendment right to post hate essays on Facebook, but that she should not do so because she is divisive, she would not appreciate the interference. In fact, she and her minions would probably (re)accuse Obama of being a socialist, radical, communist. Nevertheless, Palin wants Obama to comment on the wisdom of a religious group's decision to locate a mosque in lower Manhattan.

Palin has a two-faced view of constitutional liberty -- as do all of the other commentators who want Obama to go more deeply into this conflict. Religious freedom means that so long as people comply with laws of general application then the government should not interfere with their religious practices. I suspect that Palin and other opponents of the mosque would cheer a decision by local authorities to block the mosque project. This, however, does not reflect an embrace of religious freedom.

If liberals and conservatives actually support religious freedom, they must accept the building of the mosque -- regardless of whether they believe it is a good idea or not. This is all Obama said during his speech. For this, I commend him. On this issue, all sides must accept a "wall of separation between mosque and state."

UPDATE: This essay was edited for clarity.

Also on Dissenting Justice:

Media Continues to Misstate Obama's Position on Mosque (Updated)

Media Misstates Obama's Position on Mosque; Obama Clarifies Stance

Saturday, August 14, 2010

Media Continues to Misstate Obama's Position on Mosque (Updated)

The back-and-forth over the so-called Ground Zero Mosque continues. Yesterday, President Obama endorsed the constitutional rights of individuals who want to build a mosque near the former site of the World Trade Center. The media, in an apparent desire for controversial headlines, reported that Obama supported building a mosque at ground zero.

Today, President Obama clarified his comments, emphasizing that he endorsed the rights of the mosque proponents and that he remained neutral regarding the wisdom of the project. This is an important distinction. Upholding the US Constitution is a duty of the President. Deciding local construction policy is not.

Now that President Obama has clarified his position, some media commentators are arguing that he is shifting or backtracking. Ben Smith of Politico offers the most egregious example of this in his blog post: Obama narrows mosque defense. Smith argues that:
The signal Obama sent with his rhetoric last night wasn't that he had chosen to make a trivial, legal point about the First Amendment. He chose to make headlines in support of the mosque project, and he won't be able to walk them back now with this sprinkling of doubt. All he'll do is frustrate some of the people who so eagerly welcomed his words yesterday as a return to form.
Signal? Rather than using subliminal messaging to decode what Obama was saying, try looking at the transcript and judge for yourself.

Smith's description of the First Amendment as "trivial" is shocking. That same legal document allows him to blog on political issues -- even if incorrectly. The speech and religion clauses of the First Amendment are very important parts of US constitutional law. It is commendable that Obama embraced these concepts for a disparaged religious community.

Finally, the notion that one could embrace a person's right to do something -- without necessarily advising that person to do anything specific -- is not complicated. For example, many people are pro-choice, even though they say they would not have an abortion themselves. Some people are atheist, but they support religious freedom (including the freedom not to believe). One can believe in the First Amendment, but also believe that the news media is becoming a worthless part of American culture. Similarly, Obama can endorse the rights of the mosque proponents, while remaining aloof to the controversy about its location.

Anyone who reads Dissenting Justice knows that this blog is a fearless critic of Obama. This, however, is not a moment to criticize him.

UPDATE: The evolving commentary on this subject brings two issues to mind. First, many leftists are upset and believe that Obama is compromising or going back on his word. During the Democratic primaries, many progressives projected leftwing values onto Obama based on things he said that, if interpreted broadly, could mean he was a progressive. Apparently, many of them have not learned to construe his words narrowly (and even then, he sometimes falls short, like all politicians).

Second, this situation looks like the Shirley Sherrod matter. Although Obama's actual words are available for all to see, people are still misreporting them.

Also on Dissenting Justice:

Sarah Palin's Two-Faced Arguments Regarding "Ground Zero Mosque"

Media Misstates Obama's Position on Mosque; Obama Clarifies Stance

Media Misstates Obama's Position on Mosque; Obama Clarifies Stance

President Obama has clarified his comments regarding the so-called "Ground Zero Mosque." Yesterday, Obama endorsed the constitutional rights of individuals who want to locate a mosque near the site of the former World Trade Center. Many of the media headlines on the story falsely implied that Obama explicitly supported building a mosque near ground zero.

Obama has now emphasized that he only embraced the rights of the proponents of the mosque -- rather than the wisdom of the project:
President Obama said on Saturday that in defending the right of Muslims to build a community center and mosque near Ground Zero he was “not commenting on the wisdom” of that particular project, but rather trying to uphold the broader principle that government should treat “everyone equal, regardless” of religion.
For what it is worth, Dissenting Justice anticipated this distinction and described Obama's position as follows: "Obama strongly endorsed the rights of the individuals who want to build the mosque" (italics added).

Also on Dissenting Justice:

Media Continues to Misstate Obama's Position on Mosque.

Sarah Palin's Two-Faced Arguments Regarding "Ground Zero Mosque"

President Obama Enters "Ground Zero Mosque" Debate

After avoiding the issue for months, President Obama finally entered the debate over locating a mosque near the site of the former World Trade Center. President Obama's remarks came during a White House dinner celebrating Ramadan.

Obama strongly endorsed the rights of the individuals who want to build the mosque:
"I understand the emotions that this issue engenders. Ground zero is, indeed, hallowed ground,” the president said in remarks prepared for the annual White House iftar, the sunset meal breaking the day’s fast.

But, he continued: "This is America, and our commitment to religious freedom must be unshakable. The principle that people of all faiths are welcome in this country, and will not be treated differently by their government, is essential to who we are."
As Glenn Greenwald observes, Obama's remarks are particularly commendable (and surprising) given the enormous amount of public opposition to the planned mosque. Nonetheless, because the constitutional law on this issue is overwhelmingly on the side of the mosque proponents, had Obama taken a position opposing the project, he likely would have provoked sharp criticism from civil libertarians and legal analysts. People who oppose this project are seeking to undermine the longstanding constitutional principle of religious freedom.

Thursday, August 12, 2010

Conservative Court Doctrine Could Doom Supporters of California Proposition 8

Judge Walker has temporarily stayed the enforcement of his injunction prohibiting California from enforcing Proposition 8 -- the controversial constitutional amendment that bans same-sex marriage. Walker recently ruled that Proposition 8 violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment.

Normally, the next step in a case like this would involve defendants seeking review by a federal appeals court. This case, however, presents a difficult procedural hurdle for proponents of Proposition 8 who wish to appeal Walker's decision.

Governor Arnold Schwarzenneger and Attorney General Jerry Brown are the named defendants in the litigation. As such, they are bound by the court's injunction. Schwarzenneger and Brown, however, have lauded Walker's decision and do not wish to appeal it. This is the source of the problem for opponents of same-sex marriage.

"Standing" Issue

In order to bring a case in federal court, litigants must have "standing" to sue. In order to have standing, Supreme Court doctrine requires that parties have an "injury in fact." This injury must be specific and concrete -- rather the speculative and abstract.

Furthermore, the Court has held that people who simply want to sue in order to express their ideological disagreement with government policy lack the requisite injury needed to confer standing. This rule could possibly doom supporters of Proposition 8.

Several organizations that oppose same-sex marriage wish to appeal the ruling, but they will have a difficult time meeting standing requirements. Their opposition to same-sex marriage is purely ideological. Same-sex marriage, however, does not harm the groups in any specific or concrete way.

Sweet Irony

Ironically, conservative justices on the Supreme Court have toughened standing rules, particularly in civil rights cases. The conservative standing doctrine has often prevented wronged parties from seeking redress for their mistreatment. Now, this doctrine seems to represent a major barrier for conservative groups that wish to contest Walker's ruling.

What Next?

If the organizations ultimately lack standing to appeal, then Walker's ruling will stand. Walker's ruling, however, will only affect the law in California (although other courts may later cite it as persuasive reasoning).

Furthermore, a ruling against the organizations on the standing issue would keep this case out of the Supreme Court. Many commentators (including Dissenting Justice) believe that the Supreme Court is not prepared to invalidate laws banning same-sex marriage across the nation. Accordingly, the standing issue could prevent the Supreme Court from making a conservative ruling that could take decades to overturn. This would probably represent the best outcome for proponents of same-sex marriage.

Update: Professor Vikram David Amar, a Constitutional Law scholar at UC Davis Law School, has analyzed this issue for FindLaw. See: Musings on Some Procedural, But Potentially Momentous, Aspects of the Proposition 8 Case As it Goes to the Ninth Circuit

Tuesday, August 10, 2010

Robert Gibbs Tries to Walk Away From His Criticism of Liberals

Robert Gibbs' harsh criticism of liberals has drawn fire from progressive bloggers. Now, he has attempted to clean up his comments. Gibbs released a point of clarification to Washington Post blogger Greg Sargent. Gibbs says that his comments were "inartful":
I watch too much cable, I admit. Day after day it gets frustrating. Yesterday I watched as someone called legislation to prevent teacher layoffs a bailout -- but I know that's not a view held by many, nor were the views I was frustrated about.

So what I may have said inartfully, let me say this way -- since coming to office in January 2009, this White House and Congress have worked tirelessly to put our country back on the right path. Most importantly, to dig our way out of a huge recession and build an economy that makes America more competitive and our middle class more secure. Some are frustrated that the change we want hasn't come fast enough for many Americans. That we all understand. . . .

In November, America will get to choose between going back to the failed policies that got us into this mess, or moving forward with the policies that are leading us out.
So we should all, me included, stop fighting each other and arguing about our differences on certain policies, and instead work together to make sure everyone knows what is at stake because we've come too far to turn back now.
My Take
Gibbs' effort to clean up his comments will probably fail for two reasons. First, this is not the first time that senior White House officials have blasted liberals unfairly. Emanuel infamously called liberals "fucking retards." David Axelrod said that liberal critics of President Obama's failure to lobby for the public option were "insane." And Gibbs himself said that Howard Dean acted "irrationally" when he urged Congress to reject the moderate healthcare compromise originally proposed by a small group of moderate Senators.

Second, while the White House has had harsh words for liberals, it has not equally condemned moderates who have blocked or watered down favorable legislation. The White House seems to target liberals for criticism, while racing to make agreements with the center. Perhaps this is what the White House feels it needs to do to get Obama reelected. But this does not make liberal criticism of the White House unprincipled or unwarranted.

A Conservative Blogger's Curious Satire: Ground Zero Gay Bar

Conservative blogger Greg Gutfeld says that he is planning to open a gay bar in lower Manhattan near the so-called "Ground Zero Mosque." Gutfeld says that he is "serious," but his article seems satirical:
So, the Muslim investors championing the construction of the new mosque near Ground Zero claim it's all about strengthening the relationship between the Muslim and non-Muslim world.

As an American, I believe they have every right to build the mosque - after all, if they buy the land and they follow the law - who can stop them?

Which is, why, in the spirit of outreach, I've decided to do the same thing.

I'm announcing tonight, that I am planning to build and open the first gay bar that caters not only to the west, but also Islamic gay men. To best express my sincere desire for dialogue, the bar will be situated next to the mosque Park51, in an available commercial space.

This is not a joke. I've already spoken to a number of investors, who have pledged their support in this bipartisan bid for understanding and tolerance.

As you know, the Muslim faith doesn't look kindly upon homosexuality, which is why I'm building this bar. It is an effort to break down barriers and reduce deadly homophobia in the Islamic world.
Many conservative blogs have reported this story as if represented a major rebuttal of liberal support for the mosque. Apparently, the notion of having a gay bar near the mosque will outrage its supporters, and their anger will allow them to see the perspective of the mosque's opponents -- or at least expose them as hypocrites.

There is one major wrinkle in this line of reasoning. The idea of a gay bar near or next to a mosque is not inherently offensive. The idea of a gay bar that is "friendly to men of Islamic faith" is also not inherently offensive. Gutfield's satire appears to rest on his belief that homophobia will paralyze supporters of the mosque. There is no reason to believe that it would.

If Gutfeld is truly serious about supporting Muslim glbt individuals, he should contact members of Al-Fatiha -- a US-based organization for Muslim glbt individuals. Of course, Gutfeld is not serious. His homophobic satire, however, is seriously offensive.

White House Criticizes Liberals. . . Again

The White House is voicing anger with liberal criticism. . .again. During an interview with The Hill, White House Press Secretary Robert Gibbs blasted liberal critics, whom he says fail to appreciate President Obama's accomplishments:
"I hear these people saying he’s like George Bush. Those people ought to be drug tested. . . . I mean, it’s crazy."

The press secretary dismissed the "professional left" in terms very similar to those used by their opponents on the ideological right, saying, "They will be satisfied when we have Canadian healthcare and we’ve eliminated the Pentagon. That’s not reality."
Of those who complain that Obama caved to centrists on issues such as healthcare reform, Gibbs said: "They wouldn’t be satisfied if Dennis Kucinich was president."
My Take
Obama has faced unfair criticism from the left and the right. To the extent that he and his staff are angered by unfair critiques, they have the right to vent.

Gibbs' comments, however, suggest that liberals have no basis to criticize Obama whatsoever. That is a preposterous notion. Not only has he fallen short in some policy areas (anti-terrorism, gay rights, etc.), but it is also the role of progressive social movements to push political leaders beyond their comfort zone.

Change does not come from politicians alone. Instead, engaged social movements press political officials for change. Furthermore, dissent is an essential ingredient for change. Gibbs' comments do not acknowledge this fact.

Note: I have blogged on this subject previously. See, e.g., Criticizing President Obama Is Pragmatic

UPDATE: Other liberals have responded very passionately to Gibbs.

AMERICAblog News: Gibbs: People who are upset with Obama don't live in real America, didn't help get Obama elected

Robert Gibbs attacks the fringe losers of the Left - Glenn Greenwald - Salon.com

Levi Johnston for Mayor of Wasilla? Apparently. . .

According to Variety, Levi Johnston -- ex-fiance of Bristol Palin -- will run for mayor of Wasilla, Alaska. Johnston will reportedly use an appearance in a reality show to launch his mayoral campaign:
Levi Johnston is setting his sights on the dysfunctional family business.

Johnston will run for mayor of Wasilla, Alaska -- yes, the same job that propelled Sarah Palin to governor of that state (and later, the vice presidential nomination) -- in a new reality project being pitched by Stone and Co.

"Loving Levi: The Road to the Mayor's Office" will center on Johnston's newfound fame as the baby daddy to Palin's grandson, Tripp.

Johnston will trade on that notoriety to make his run for Wasilla City Hall -- when he's not pursuing a career in Hollywood, of course.
So does Johnston have a chance of winning the position? Well, stranger things have happened -- like John McCain picking Sarah Palin as a running mate. So, stay tuned!

Thursday, August 5, 2010

Anti-Gay Notre Dame Law Professor Questions Impartiality of Judge In Same-Sex Marriage Case

Notre Dame law professor Gerard Bradley published an op-ed on Foxnews.com, which challenges the impartiality of Judge Vaughn Walker. Walker is the federal judge who ruled yesterday that California's prohibition of same-sex marriage violates the Constitution. Walker is also gay.

According to Bradley, the media should discuss Walker's sexual orientation. Although Bradley does not argue that Walker should have recused himself from the litigation, he strongly implies that his sexual orientation makes him partial.

Bradley argues that:
The neglected bias in the Prop. 8 trial has instead to do with the fact that – as reported in The Los Angeles Times last month – Judge Walker “attends bar functions with a companion, a physician.”

If (as The Times suggests) Judge Walker is in a stable same-sex relationship, then he might wish or even expect to wed should same-sex marriage become legally available in California.

This raises an important and serious question about his fitness to preside over the case. Yet it is a question that received almost no attention.
Bradley's argument is preposterous. White judges decide racial discrimination cases brought by persons of color. Men rule on abortion and sex discrimination cases. Heterosexuals -- including openly anti-gay Justice Antonin Scalia -- rule on gay discrimination cases. If sexual orientation makes a judge partial, then no judge could hear a case related to sexual orientation discrimination -- because every judge has a sexual orientation.

Coincidentally, when President Carter appointed two black judges to the federal bench -- Judge A. Leon Higgonbotham and Judge Constance Baker Motley -- both faced recusal motions in discrimination cases. Both refused to view race and sex as a source of bias.

Bradley Is The One Who Is Truly Biased
Finally, Bradley does not reveal his own biases. Bradley has written commentary opposing same-sex marriage and equality for gays and lesbians. In a 2003 essay published in the National Review, Bradley makes the following arguments against same-sex marriage:
Our civil law has always treated traditional marriage as reflecting objective truths about human sexuality, procreation, and the family. Some people deny these truths. . . . [M]arriage depends for its health partly on sound laws that protect, maintain, and support it.

The task of conservatives in the coming showdown is to justify, not marriage qua marriage (almost everyone, gay and straight, agrees that marriage is a good thing), but the characteristic at its core: its intrinsic gender complementarity — one man and one woman, period. . . .

The answer is that homosexual acts are not and never can be marital. Sodomy has been discouraged, and sometimes prohibited, for basically the same reason that fornication and adultery have been: to protect marriage as the principle, or litmus line, of sexual morality. Sex is for marriage, and marriage is (not coincidentally) the morally legitimate setting for bringing children into the world.
This passage shows that Bradley -- not Walker -- has strong biases regarding same-sex marriage.

Obama Maintains His Utterly Inconsistent Position on Same-Sex Marriage

White House Senior Adviser David Axelrod has provided President Obama's response to yesterday's federal court ruling that invalidated California's prohibition of same-sex marriage. Axelrod says that:
The president does oppose same-sex marriage, but he supports equality for gay and lesbian couples, and benefits and other issues, and that has been effectuated in federal agencies under his control," Axelrod said on MSNBC (italics added).
The statement sounds familiar; Obama has maintained this position since his presidential campaign. The position, however, is utterly inconsistent. Same-sex marriage is an equality issue. As the federal court held, denying same-sex marriage violates the Equal Protection Clause. Obama's effort to separate equality and same-sex marriage is highly flawed.

Wednesday, August 4, 2010

Federal Judge Invalidates California's Same-Sex Marriage Ban (Proposition 8)

A federal court has invalidated California's ban on same-sex marriage (Proposition 8). The court ruled that the measure violates the Equal Protection Clause and the Due Process Clause of the Fourteenth Amendment. This ruling parallels the Supreme Court ruling in Loving v. Virginia, which invalidated bans on interracial marriage on the same constitutional grounds.

Although Governor Schwarzenegger approves the ruling, Proposition 8 proponents will likely appeal the decision. And while the liberal US Court of Appeals for the Ninth Circuit could possibly uphold the decision, things will become much more difficult for the plaintiffs if the case reaches the Supreme Court. As with most progressive cases, the outcome will likely depend upon how Justice Anthony Kennedy votes.

[Note: This is a breaking news story. I will update it after I have the time to read the opinion more thoroughly. In the meantime, here is a brief summary by Professor David Cruz of USC Law School.]

Monday, August 2, 2010

NYT Article Makes Peculiar Claim About Plagiarism In The "Digital Age"

According to New York Times reporter Trip Gabriel, the "digital age" raises questions about what constitutes plagiarism. Gabriel argues that the availability of information on the Internet complicates traditional notions of ownership and originality.

Citing examples of students copying information from websites without attribution, Gabriel makes the following claim:
[T]hese cases — typical ones, according to writing tutors and officials responsible for discipline at the three schools who described the plagiarism — suggest that many students simply do not grasp that using words they did not write is a serious misdeed.

It is a disconnect that is growing in the Internet age as concepts of intellectual property, copyright and originality are under assault in the unbridled exchange of online information, say educators who study plagiarism.

Digital technology makes copying and pasting easy, of course. But that is the least of it. The Internet may also be redefining how students — who came of age with music file-sharing, Wikipedia and Web-linking — understand the concept of authorship and the singularity of any text or image.

My Take
I am completely unpersuaded by Gabriel's argument. The availability of information on the Internet -- along with technology that allows for simple "cutting and pasting" of text -- undoubtedly makes plagiarism easier to accomplish. These innovations, however, do not change the definition of plagiarism. Rather than relaxing the standards of academic integrity, educators need to police plagiarism more intensely in the digital age.

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