Category Archives: Law and Politics

#48: Inequities in the Justice System

January 28, 2016 M.J. Leave a comment

This is mark Joseph “young” blog entry #48, on the subject of Inequities in the Justice System.

I have a story that intrigues me on so many levels I have to tell it. It is, as they say, a true story–that is, I have my information largely from the first-hand account of one of the key persons involved, but for parts of it that I on the one hand witnessed myself or on the other hand deduced. I shall attempt to keep them clear. It is a case of an injustice that was, in large part, remedied, but the sense of injustice looms over it nonetheless.

The story begins with a young man in his early twenties out for a walk on a late summer afternoon. He happened to pass what must be the main intersection in the sprawling sparsely populated town, as it is the only traffic signal, and there are two gas stations on the corner, owned by the same near-eastern immigrant family, the only gas stations within the town.

He was at least three blocks from there, around a corner out of sight, when two police cruisers arrived behind him. The young man has been detained by police before, largely because he has friends who have been in trouble with the law on several occasions, although he himself has never been charged with anything. They asked him to identify himself, and he gave his name but was reluctant to tell more. After some discussion he gave his address, and was told he was not permitted to leave until they had identified him. They then insisted on patting him down, then handcuffed him and informed him that he was under arrest.

I have to interject here. The police are indeed permitted to stop a person if they have a reasonable suspicion of possible involvement in a crime, and if we stretch that–as you will see–they might arguably have had that here. The purpose of such a check is to ensure that the person with whom they are speaking is not able abruptly to produce a weapon; the rule exists to protect the police. It’s called a “Terry Stop” after the case which confirmed that it was legitimate.

On the other hand, an arrest requires “probable cause”. At this point all the police have–well, we’re getting ahead of the story.

They emptied his pockets into a plastic bag, and put him in the back of one of the patrol cars. The officer in that car then produced a bag of marijuana from another satchel and placed it in the bag with his possessions. The young man objected, loudly, that he had never seen that bag in his life, but the police officer claimed that an attendant at the gas station had seen him stop and hide the bag at the control box at the traffic light on that corner. He was told he was under arrest for possession of marijuana. The officer then drove to that gas station, and once in the parking lot read the young man his Miranda rights while this witness, a near eastern immigrant, observed.

Maybe you have noticed the three problems with the “identification” here. I did immediately, but then, I hit these problems in law school. Still, I cannot believe that the police procedure here was so incredibly bad. One of these problems might have been excusable, even unavoidable, but there was no reason for this kind of work unless they expected to strongarm the suspect into a confession.

The first problem can be called the problem of cross-cultural identification. You’ve probably heard the rubric that all Blacks look alike, and while that’s not at all true it is true that Whites and Asians have trouble recognizing the distinguishing features of Blacks, and that the same is true for most cross-racial or cross-cultural observers. If you did not grow up among people of a particular racial/ethnic group, the specific features that distinguish one from another are often difficult to spot.

I often recall the story of The Five Chinese Brothers. In brief, one of five brothers was condemned to death, but he and each of his brothers had a particular invulnerability. Each time the emperor declared how the boy was to be executed, he would ask to say goodbye to his parents, and be replaced by the brother who was invulnerable to that form of execution. The conceit is that no one can tell the difference between one Chinaman and another, so if they were also brothers not even the Emperor could tell them apart–which tells me that it is not a Chinese story at all, but a European story about European perceptions of the Chinese. Had it been a Chinese story, it would have been The Five Swedish Brothers–all tall, light hair, light skin, light eyes, they look exactly alike, because the characteristics by which Chinese distinguish each other are not those by which Europeans distinguish each other. That’s the problem of cross-cultural identification: our near-eastern immigrant gas station attendant would have trouble distinguishing one tall white American boy from another. The identification is already suspect.

However, even if that were not so, there is a much more significant problem. You’ve probably noticed that on television shows when the police want a witness to identify a suspect they have a lineup, or if not a lineup a photospread. They don’t usually present the suspect to the witness and say, “Is this the guy?” That’s because those kinds of identifications are inherently prejudicial–and this one is extremely so. We have a suspect who fits the description “young white male” in a town where that describes a significant portion of the adult population. Our young white male has been brought to the witness handcuffed in the back of a police car, and in the presence of the witness the arresting officer makes a point of Mirandizing the suspect, clearly placing him under arrest and signalling, “This guy is a criminal.” The witness then has in essence been told, “Identify this guy,” and even if we assume that the witness wants to be honest and has been honest to this point, we just played a game with his memory. The police told the witness who to remember; human memory is a fluid and flexible thing in most people, and by this act the police helped the witness solidify an image that matched the guy they caught.

It should also be noted that if the story the officers told is true, the witness must have called to report having seen someone hiding something at the traffic light control box perhaps fifty feet away, the police must have arrived and searched the area and found the bag, then the witness must have told them in which direction the person left who had placed it there. By that time, anyone who might have been in the area would have walked out of sight, and indeed the suspect was not in sight–which means that the witness could not point to him, and the police could not see him when they arrived at the scene. They have no idea who they are seeking. Anyone they find who roughly fits the description is likely to be identified by the witness as the person he saw. He made no claim of having seen him up close, or having recognized him from previous acquaintance. He had not kept his eye on the suspect, and could not be certain the person he saw didn’t enter one of the houses along the street. About the only information the witness gave the police was young white male, went that direction. They should have known their identification was going to be problematic.

For a legitimate witness identification, they needed to take the suspect to the station and take the witness there separately, keeping them from seeing each other until the suspect was mixed with several other persons who also roughly fit the description, and then determining whether the witness could choose the suspect from among the group without any assistance or prompting. That would not solve all the problems here, but it would be a much better case for the police than what they did.

They also should have known that they had insufficient basis for probable cause. A young man walking quiet sub-suburban streets in a rural town on a late August afternoon is not suspicious. Being a young white male is not suspicious. Nothing was found on the suspect to connect him to this or any other crime. The police don’t like it when you avoid answering their questions, but even if it could be argued that the refusal to answer questions implies guilt, it is illegal to draw that conclusion: the exercise of the Constitutional right to remain silent cannot be taken as evidence of guilt of any crime, and therefore cannot support probable cause of such guilt. The police had sufficient cause for the Terry Stop–it requires an articulable suspicion, and it is reasonable to argue that a young white male walking somewhere within several blocks of the site of an alleged crime allegedly committed by a young white male afoot is at least vaguely suspect. Having questioned him and learning nothing that connected him more closely to the crime, they did not have probable cause for an arrest.

The police took him to the station and held him for a while, and then began questioning him. They intimated that they had surveillance video of him planting something there, and he responded that he knew they did not because he never did so–he was not even really cognizant of the fact that there was an electrical control box there. They attempted to get him to explain how he thought the marijuana got there, as if it were his problem and they hoped in solving it he would confess something they could use against him. They then gave him a summons to appear in court to answer charges, and released him.

He went to court and applied for a public defender. His parents had prepared him well–within twenty-four hours of the events he wrote down everything that happened, so there would be a clear written statement, and he gave a copy of this to his attorney. He also had been made aware of the problems already mentioned regarding witness identifications, and also that in New Jersey the governor had recently required that all police cars be equipped with dash cameras, and a Superior Court Judge had ruled that all those recordings were public records, so his attorney subpoenaed these. It took six months for the State of New Jersey to realize that on those facts they had no case, and dismiss the charges. The public defender application fee is not refundable.

No one apologized for the wrongful arrest. In fact, in an odd turn, as the judge dismissed the case he told the defendant to be sure not to be arrested on that charge again. It was an entirely inappropriate thing to say under the circumstances, although the judge probably was not fully aware of the circumstances. After all, the young man had been charged simply because he was the nearest person out walking somewhere near the scene of the crime, and he could not have anticipated that there might have been such a crime. If we assume the integrity of everyone involved, and that these were the honest mistakes of a couple of police officers who found the contraband and believed they had the right person who would probably confess and plead guilty (and not that they were trying to create a case from nothing), there was no way he–or indeed anyone–could have avoided being so charged under these circumstances, except perhaps by staying at home at all times, or at least never taking a walk in public.

In all of this I want to mention one point that you probably did not notice, although it was mentioned. The defendant was not a young black male; he was a young white male. It may or may not be true that young black males are unfairly singled out by police, but it might not be because they are black so much as that they are young and male. It is difficult to know how to react to that; young males disproportionately commit crimes, and so it becomes proportionate to suspect them disproportionately. Yet if one is more likely to be arrested and charged because one is a young man, the claims that the disproportionate arrests of young black men demonstrate systemic racism are seriously weakened. Such racism may still exist in some places, but racial oversensitivity also plays a role in causing us to perceive racism where the real problems are agism, sexism, and classism. If there is a real disproportionate correlation between criminal activities and factors such as age, gender, race, and social class, it can hardly be said to be discriminatory to make disproportionate arrests. If such correlations cause police to be careless in their procedures, that needs to be corrected–but it does not make it a matter of racism.

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Elections, Law and Politics

#42: Politicians and Statemen

January 18, 2016 M.J. Leave a comment

This is mark Joseph “young” blog entry #42, on the subject of Politicians and Statemen.

19th century American James Freeman Clarke left some memorable and sometimes Tweetable quotes behind. Perhaps the most famous of these reads

A politician thinks of the next election. A statesman, of the next generation.

He was apparently not a politician, being a clergyman, educator, and activist reformer. He may have been a statesman. However, it is clear that he approved statesmen over politicians.

I read something recently that brought the quote back to mind, causing me to wonder who in the nation today are the statesmen and who the mere politicians. Of course, that’s not simple to assess. If we look at the Democrats, we see a lot of policies that seem to be aimed at pleasing voters–free or low-cost healthcare, food and welfare programs, as well as policies to protect minority benefits. It has been argued, and not entirely unreasonably, that this party is attempting to buy votes with government money and other generosity. On the other hand, despite the fact that the Republicans pioneered such policies as protecting the rights of blacks and protecting the environment, the Democrats have managed to make those their issues, becoming the “progressive party” after for decades being the party of oppression with people like George Wallace spearheading the fight against civil rights. Democrats are the ones who push for taking steps against climate change (although Republican Arnold Schwarzenegger has spoken on that subject as well), insisting that present economic hardships, whatever they might be, are small compared to a potential future crisis.

Of course, many argue that the Republicans are using government money to buy the votes–and the pockets–of big business and Wall Street. Forget that Democratic frontrunner Hillary Clinton has close ties to the financial markets and backers from that group, it is maintained that the Republican party is bought and paid for by big business. On the other hand, the Republican party coalition (we talked much about how coalition government works at the party level in the United States) contains several groups that focus on principles: the pro-life coalition fighting against the rampant killing of the unborn, the gun lobby focusing on Second Amendment rights, Christian groups upset about First Amendment protections in the changing moral landscape, Originalists pressing for the America of our ancestors. These are issues focused on the future and the betterment of the nation. You might not agree about them, but they are the thoughts of statesmen looking to improve the nation, not of politicians seeking to buy votes.

Of course, both parties are packed with politicians. There is a degree to which they have chosen the party with which they are most in agreement, but also a degree to which they mold their own messages to appeal to the voters of that party. Politicians are always thinking of the next election; the next generation is a distant second in most cases.

However, what intrigued me about this article is not the politicians but the voters. In brief, correspondents for a news organization swapped jobs for a week–the one covering the Republicans tackling the Democrats, the one working the Democrats turning to the Republicans. They both noticed the same difference in the voters.

Republican voters frequently talked about issues. They were invested in questions like originalism, abortion, homosexual marriage, gun rights, free speech, et cetera. They wanted to know what candidates were going to do to protect and advance these principles, these policy positions, for the perceived good of the nation.

Democratic voters by and large were concerned about their own needs: what was the candidate going to do about my welfare check, my medical care, my housing problems. The Democratic voters were personally invested in putting people in office who would give them what they perceived as their wants and needs. They were strong-arming their candidates into that supposed position of promising giveaways. They, in the main, fit the stereotype Republicans have of Democrats, of trading the future of the country for a paycheck.

It seems that whatever we can say about the politicians, among the voters, the Republicans are the statesmen trying to think of the next generation, and the Democrats are the politicians extracting promises for the next election.

This may be too harsh. After all, it does appear demographically that poorer voters tend to vote Democratic, and if we consider Maslow’s Hierarchy of Needs, we recognize that people who have trouble putting food in their stomachs and a roof over their heads don’t care so much about such esoteric questions as the rights of the unborn or freedom of expression or the right to bear arms. They care about meeting those fundamental needs. One of our founding fathers quipped that the democracy would end the moment the voters realized that they could all vote themselves money from the Federal coffers. That’s been happening for quite a while, but the situation is worsening. It’s probably also the reason why early voter regulations required that the voter prove he had real property and an education–that he was intelligently invested in the future of the country. There are problems with that arrangement, certainly, in its tendency to maintain the status quo; but there is also something to be said for its ability to resist the tendency toward candystore giveaway politicking. The fact that poor people are more interested in what the government is going to do to alleviate their situation and rich people are more interested in what the government is going to do to ensure long term economic and social stability is perfectly logical. It also suggests that the former breeds politicians and the latter statesmen, at least to the degree of short-term versus long-term economic stability.

Republican politicians might be merely politicians, and there might be statesmen among the Democratic politicians, but if we want the party whose members are most concerned about the longer-term future, it might be the Republicans. In contrast to the politicking for personal gain among the Democrats, the Republican membership might be the statesmen.

Assuming statesmen are still to be preferred….

Elections, Law and Politics

#41: Ted Cruz and the Birther Issue

January 16, 2016 M.J. 3 Comments

This is mark Joseph “young” blog entry #41, on the subject of Ted Cruz and the Birther Issue.

The unabashedly liberal Huffington Post has reported that a Texas attorney has filed suit against Ted Cruz, claiming that the Republican United States Senator from Texas is not eligible to be President of the United States because he is not a “natural born Citizen” as required by the Constitution.

This is ground we covered in detail quite a few years ago; in fact, it was this issue that launched our political writing at The Examiner–only then the object was Barrack Obama. We have preserved those articles as The Birther Issue elsewhere on this site, and we’ll look at that.

The problem for Cruz is that he was not born in the United States. People argued whether Barrack Obama was or was not born in the United States, and whether the birth certificate published by the White House asserting a Hawaiian birth was in fact a forgery. The issue this time is not whether or not he was born in the United States–it is clearly established that he was born in Canada, to a mother who is incontrovertibly a United States citizen, and a Cuban-born father who fled to the United States and became a Canadian citizen a few years after the birth of his son Ted, then became an American citizen just over a decade ago.

Thus the question is whether Ted Cruz is a “natural born” United States citizen as required by the constitution, based on the fact that his mother being a United States citizen gave him U. S. citizenship at the moment of his birth, or whether he is not “natural born”, based on an interpretation of that phrase that requires that the President was actually born in these United States. It is a perennial issue–before Cruz of course it was raised concerning Obama, but it has also been raised in connection with Mitt Romney (born in Mexico to American parents), John Cain (born to a U. S. military family stationed on the U. S. military base in the Panama Canal Zone), Mitt’s father George Romney (born to U. S. citizen parents in self-imposed exile in Mexico), Barry Goldwater (born in the United States Territory of Arizona before it became a State of the Union), and quite a few others. In many of these controversies, scholars have asserted that the Supreme Court has never said what the Constitution means by the words “natural born citizen”.

They are only half right.

In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court addressed a citizenship case. In that case, they cited Dicey’s Digest of the Law of England with approval, quoting that

“Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.

They then quoted from a case which cited Blackstone to the effect that

a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance….

It seems quite evident that Wong Kim Ark asserted that “natural born citizen” of the United States meant no more and no less than that at the moment of birth the individual was a United States Citizen–something that clearly applied to Obama, both Romneys, and Cain, at least. By the standard set forth by Dicey and Blackstone cited by the Supreme Court in Wong Kim Ark, because Mrs. Cruz was a United States Citizen at the time that her son Ted was born, Ted Cruz is a natural born citizen of the United States, and eligible to become President of these United States.

So what’s the problem? How can anyone say that the Court has not decided this question, if the court has decided it?

The problem is that the court stated that, but did not decide it. It falls into the category of what is called “dicta”–statements made by the court that are not directly relevant to the decision in the case but express what the court probably would decide about such an issue. Wong Kim Ark had nothing to do with presidential eligibility. It was about the California-born son of Chinese citizens refused admission to the country on returning from a visit to foreign relatives abroad because of a California anti-immigration law, and decided only that the child of anyone born in the United States to parents who were legally present in the United States at the time of that birth was a citizen of the United States at the moment of his birth. The cited passages in Dicey and Blackstone were part of a more general discussion that supported that conclusion, and although they clearly support the conclusion that anyone who was a citizen at the moment of his birth, wherever born, is a natural born citizen, the decision of the case technically only supports its own conclusion, that anyone legally born on United States soil is a United States citizen at that moment.

So technically the critics are right: the issue has never been “decided” because it has never been raised as such. However, the reasoning of Wong Kim Ark leads inexorably to the conclusion that people in the position of any of these politicians, including Ted Cruz, are “natural born citizens” under the intended meaning of the Constitution, and eligible to be President of the United States, and there is no reason to imagine that the Supreme Court would decide otherwise given that precedent.

Cruz is right: the issue which did not matter half a year ago is being raised now because he has become a serious contender for the Republican nomination. It is not, and should not be regarded, a real issue.

Bible and Theology, Law and Politics

#36: Ligation Litigation

January 3, 2016 M.J. Leave a comment

This is mark Joseph “young” blog entry #36, on the subject of Ligation Litigation.

Let me begin with ideas that might not seem immediately on-topic.

You are certainly welcome to stay for supper. You’re in luck–we do not often have a roast, but someone gave us this boneless pork loin, and it’s almost finished roasting…what’s that, you don’t eat pork? Well, I’m very sorry. Unfortunately, I roasted the carrots and potatoes and onions in the same pan, so if that’s a problem, I’m not sure what to say.

Maybe I could scrounge something up for my unexpected guest, but really, my extended hospitality is to share what I have, not what I don’t have.

Just relax, we’ll reach the hospital in a few minutes. What? Yes, I have morphine. No, I can’t give you morphine; it would be illegal, for one thing. A doctor has to say that you should have it. Of course I care that you’re in pain, but I’m not going to risk my job to give you something that quite possibly you shouldn’t have.

Of course, I could give the morphine–I am certainly physically able to do so–but there are good reasons for me not to do so.

No, I’m not going to go deer hunting with you. I know it’s legal; I know it’s even considered necessary: in a world in which we have decimated the predator population we must also kill the prey animals or they will overpopulate and starve themselves. Kill them if you wish, but please don’t ask me to be part of it. I don’t really enjoy killing animals, and I do not want to become the kind of person who does.

I’ll have to think about whether I’ll eat your venison, and obviously I know that someone kills the meat I do eat, but it doesn’t have to be me.

Rebecca Chamorro, mother of a third child, is suing Mercy Medical Center in Redding, California, a two hundred sixty-seven bed hospital sponsored by the Sisters of Mercy of Auburn. She claims that the hospital violated her rights by refusing to permit her doctor to perform a tubal ligation while delivering her third child by caesarean section.

The hospital claims that such an operation violates the “ERDs”, that is, the Ethical and Religious Directives for Catholic Health Care Services, a document of health care directives established by the United States Conference of Catholic Bishops. The document bans abortions; I presume it also bans euthanasia, although I have not read it (being neither Catholic nor employed in a medical facility). It lists these things as “intrinsically immoral”, and includes on that list direct sterilizations, certain prenatal genetic tests, and most forms of contraception. The Catholic Church maintains that children are a gift from God, and participation in sexual relations is an open invitation to God to give that gift; therefore refusing the gift or misusing sex for something other than reproduction is an affront to God.

Obviously, you may disagree with the Roman Catholic Church. Even many Christians of other denominations, including many (but not all) conservative Christians among the Evangelicals, the conservative Lutherans, and the Eastern Orthodox churches, allow many forms of birth control while remaining adamantly opposed to abortions and abortofacients. That, though, is not the point. The point is whether a Roman Catholic hospital should be forced to permit the use of its facilities and equipment for procedures it regards immoral.

The plaintiff’s primary argument is that the refusal to perform legal medical procedures is discriminatory. There is a sense in which it is not–the same restrictions against tubal ligation also apply to vasectomies–but the argument is that pregnancies are unevenly discriminatory (much more of a burden on women than on men) and thus the refusal to assist in their prevention is unevenly discriminatory. This, though, is founded on the premise that the hospital is a public institution offering a commercial service–and that’s not exactly true.

At one time all, or nearly all, hospitals were run by religious orders, most of them Roman Catholic. The nursing staff of such hospitals were nuns–volunteers who devoted their lives to the service of others through the church, tending the sick, compensated essentially with room, board, and basic necessities. Priests served as doctors, in a time when only a few went to university and those who did were doctors, lawyers, or priests, with some overlap. People supported the hospitals with their gifts; patients were treated based on need.

Certainly the world has changed. Hospital staff now includes many employees, most of them paid and not all of them Catholic, although many Catholic hospitals are still staffed in part by nuns and other volunteers. Medicine is overseen by licensed physicians, because laws forbid the practice by those who do not have such licenses. However, the mission has not changed, nor the motivation: to help sick people heal. These are non-profit hospitals, and the church runs them voluntarily to help the sick.

If you complained that I did not make something special for you as an unexpected dinner guest when you did not want to eat my roast pork, I would politely suggest you find somewhere else to eat. If you complained that I did not give you morphine on the way to the hospital, I would tell you to talk to my lawyer. If you complained that I was unwilling to go deer hunting with you, I would tell you to go–well, I wouldn’t, because I’m not like that, but it would put a serious damper on our friendship.

The Roman Catholic Church, of its own volition, offers medical care to persons in need. They offer more charity care than most hospitals, although they welcome paying patients and insurance programs. However, they are specific about what care they do–and do not–offer. If you don’t like it, there are other hospitals. If it is inconvenient for you to travel to a hospital that is willing to provide the services you desire–and note that this is in no sense an emergency situation here, it is not as if the hospital is refusing life-saving treatment to a patient brought in to the emergency room–then it is apparently inconvenient for you to get the elective procedure you desire. That seems fairly straightforward to me.

I am concerned that any other answer ultimately becomes an imposition on the faith of the Roman Catholic Church, and indeed on other religiously-affiliated medical facilities (and many churches support these). It is a small step from asserting that the hospital must permit sterilization procedures it find immoral to asserting the same about abortions; and if (or more likely when) it becomes legal, it is a small step beyond that to requiring hospitals to permit euthanasia in their facilities.

If that happens, I am fairly certain the Roman Catholic Church will close its many hospitals and look for some other way to help needy people. A two hundred sixty-seven bed homeless shelter might be a great help.

Bible and Theology, Books by the Author, Elections, Games, Law and Politics, Logic and Reasoning, Temporal Anomalies/Time Travel, Time Travel Movies

#34: Happy Old Year

January 1, 2016 M.J. Leave a comment

This is mark Joseph “young” blog entry #34, on the subject of Happy Old Year.

At this time of year, readers are bombarded with “year in review” pieces, part of the media’s need to have news even when there is no news, to make news out of nonsense and trivia–the reason Time Magazine first created its “Man of the Year” issue (the first was Adolph Hitler). When I was at The Examiner, I began doing something of the same thing, creating indices of articles from the year for readers who missed something or who vaguely remember something. Quite a bit has been published this year, and it might help to have a bit of a review of it all, as some of you might have missed some of it. We have articles in quite a few categories.

The web log is of course self-sorting, and you can find articles in its various categories by following the category links, or in subjects by following tag links; still, it will be worth touching on those pieces here, and there are also quite a few “static pages”, that is, regular web pages added to the site, that you might have missed.

At the beginning of the year we were still writing for The Examiner; all of that has been republished here, much of it which was originally done in serialized format consolidated into larger articles. My reasons for that are explained here on the blog in #8: Open Letter to the Editors of The Examiner, if you missed them. It is still hoped that the Patreon campaign will pick up the slack and pay the bills needed to support continuing the efforts here at M. J. Young Net.

Let’s start with the law and politics pieces. This is a good place to start, because when at the beginning of the year we moved everything from The Examiner, we included a final New Jersey Political Buzz Index Early 2015, with articles on Coalition Government, Broadcasting, Marriage Law Articles, Judiciary, Internet Law, Congress, Discrimination, Election Law, Search and Seizure, Presidential, Health Care, and Insurrection, most subjects covering several articles consolidated with other articles, along with links to earlier indices. There was also a new main law/politics index page, appropriately Articles on Law and Politics, covering the old and the new, and we added a static page to that, continuing a series on tax we had begun previously, What’s Wrong with the Flat Tax?.

We’ve also had a number of law and politics posts on this blog, including

We also covered New Jersey’s 2015 off-year election with a couple posts, #12: The 2015 Election, and #15: The 2015 Election Results.

There were a few web log posts that were on Bible/theology subjects, particularly last week’s #32: Celebrating Christmas, about why we celebrate, and why this particular day; plus some that were both political and theological, including #3: Reality versus Experience, #23: Armageddon and Presidential Politics, and #24: Religious Liberty and Gay Rights: A Definitive Problem.

Then there was the time travel material. This also included some that were originally published at The Examiner and moved here, sometimes consolidated into single pieces. We started the year with a serialized (and now consolidated) analysis of Predestination, followed by one of Project Almanac. We also gave a nod to (Some of) The Best Time Travel Comedies and (Some of) The Best Time Travel Thrillers, before moving here.

Once here, we began our temporal insights with a couple of web log posts, the first #6: Terminator Genisys Quick Temporal Survey, and then #17: Interstellar Quick Temporal Survey, both thanks to the generosity of readers who provided for us to see these films. We eventually managed to add a new analysis to the web site, Terminator Genisys, one of the longest and most complicated analyses we have yet done–but we were not done. Remembering that our original analysis of the first two films in the franchise made some suggestions concerning a future direction for the series, and having commented on the problems with continuing it after the latest installment, we wrote #28: A Terminator Vision, giving some ideas for a next film. Then in response to a reply to the analysis, we added #31: A Genisys Multiverse, explaining why we don’t think a multiverse-type solution resolves the problems of the film.

The site was expanded on another long-neglected front, the Stories from the Verse section: the directors of Valdron Inc gave me permission to serialize Verse Three, Chapter One: The First Multiverser Novel; as of today, the first forty-seven of one hundred twenty-six chapters (they’re mostly short chapters) have been published; there is an index which conveniently lists all the chapters from the first to the most recent published in the left column and from the most recent to the first in the right, so that you can begin at the beginning if you have not read it at all, or find where you left off going backwards if you’ve read most of it. The chapters also link to each other for convenient page turning.

I don’t know whether it makes it more interesting or takes away some of the magic, but I also began running a set of “behind the writings” blog posts to accompany the novel. These are my recollections of the process that brought the pages to life–where I got some of the ideas, my interactions with the editor and other pre-publication readers,, changes that were made, and how it all came to be. There are now seven of them in print–

–and I expect to publish another tomorrow for the next six chapters.

Looking at the few posts that have not yet fit in one of these categories, whether logic or trivia or something else, one, #29: Saving the Elite, was really advice for writing a certain kind of story. Our first post in the blog, #1: Probabilities and Solitaire, was a bit of a lesson in probabilities in card games, and #26: The Cream in My Coffee applied physics to how you lighten and sweeten your hot beverages.

So that’s what we’ve been doing this year, or at least, that’s the part that sticks above the water. We’ve answered questions by e-mail, posted to Facebook (and PInterest and Twitter and LinkedIn and MySpace and Google+ and IMDB and GoodReads and who knows where else), kept the Bible study going, worked on the novels, and tried to keep the home fires burning at the same time. That’s all important, but somewhat ephemeral–it passes with time faster than that which is published. Here’s hoping that you’ve benefited in some way from something I wrote this year, and that you’ll continue encouraging me in the year ahead.

Happy old year.

Happy new year.

Bible and Theology, Law and Politics

#24: Religious Liberty and Gay Rights: A Definitive Problem

December 6, 2015 M.J. Leave a comment

This is mark Joseph “young” blog entry #24, on the subject of Religious Liberty and Gay Rights: A Definitive Problem.

Christians today are being forced to recognize the marital unions of homosexual (and lesbian) couples as just as valid as those of heterosexuals, and even to participate in the celebration of those unions by providing services, from signing marriage licenses to baking wedding cakes and taking photographs. Many Christians hold the view that homosexuals cannot legitimately be “married”, that homosexual relationships are an affront to God and to nature, and that it is an affront to our faith to be forced to participate–akin perhaps to insisting that Muslims and Jews participate in a feast at which a pig will be roasted and served to all the guests. We ought to be excused from such offensive events. Yet time and again the courts rule against us, despite the First Amendment to the Constitution which protects Americans from government intrusion into religious faith and practice. It is confusing, at the least. Why is this happening?

The answer is that over the past century or so the meanings of several critical words have changed just enough that our objections have been voided. Three words in particular have taken altered definitions, and left Christians behind.

Of course the word marriage has changed meaning over time. It comes into English through French from Latin, the Latin referring to a sexual relationship and thus, for the Romans at least, to an ongoing sexual relationship between a man and a woman. The Romans were rather specific about this, and that definition came with the word into English thanks largely to the Roman Catholic Church. A marriage, well into the early twentieth century, was a permanent commitment between a man and a woman with a view to producing and raising children; it was definitively a procreative relationship.

It was also primarily regulated by the church in most of the western world, even in the United States. Marriage “licenses” were created originally to bypass “the banns” (we’ve discussed this before), the rule that required an intended marriage be announced publicly several weeks in advance of the wedding in the home region of the couple so that objections could be known in advance; the parties could in effect post a cash bond guaranteeing that there were no impediments to the marriage, and so marry more quickly or in a place where one or the other was a stranger. They were optional, even through the early twentieth century–but they had become required first for interracial marriages, gradually for all marriages, and for the very telling purpose that the government wanted to regulate the number of mixed-race children and then additionally prevent incestuous marriages. Marriage licenses were about regulating sex, and guaranteeing that a couple who had sex would thereafter be jointly responsible for the children produced by their act.

Several things happened in the twentieth century. One had to do with the Federal Income Tax system, because someone decided that if a couple had children, or was trying to have children, that probably meant one of them (usually the woman) would not be working, and the income of the other would have to support both–and since the government wanted to encourage procreative relationships, such couples, identified by a legal “marriage”, were given a lower tax rate.

The second thing that happened was really many things. Divorce law changed such that gradually it became easier for couples to separate. Divorces being very messy cases, courts and legislatures tried to disentangle themselves from the mess by moving toward a system by which what had been presumptively permanent commitments now became readily dissolved. Further, attitudes toward sex changed, and the judiciary took the view that it was inappropriate for government to regulate sexual activities outside those special cases in which it was likely that someone was being compromised (rape, incest, possibly prostitution). That meant it did not matter whether someone’s sexual preferences were “aberrant”, as long as they were not abusive. Any adult could have sex with any other adult, and the government would mind its own business if no one was being harmed. There is still an issue as to whether anyone is being harmed in these relationships, but the government has decided that in most cases they aren’t even if they are, or at least that they assumed the risk that they would be harmed when they entered the relationship.

The upshot is that marriage is no longer defined as a permanent procreative relationship, but rather as a disolvable partnership between friends. A critical element has been changed.

The word homosexual did not not exist in the nineteenth century. Such men were called “sodomites”, and it had a very negative connotation. Early in the twentieth century someone in the psychology field coined the new word to identify what was then regarded a psychological aberration for study and treatment. The word itself was criticized as a nasty hybridization of a Greek prefix (homo, “same”) with a Latin root (sexual, “pertaining to gender”).

As attitudes about sex changed in the mid twentieth century, part of that was the notion that two persons engaging in sex were not hurting anyone and ought to be permitted to enjoy themselves. This justified what had previously been called fornication but was now called free love, what had previously been called adultery but was now called having an affair, and, eventually, what had been called sodomy but was now called same-sex love. What had been an unspeakable perversion in the nineteenth century by the dawn of the twenty-first was simply a different lifestyle.

However, the definitional change goes deeper than this. This is not so simple as a different lifestyle. It’s not like choosing whether or not to be a vegetarian, or deciding to join a convent, or moving to a farm. Although science has produced not a shred of evidence that homosexuality is genetic, homosexuals have insisted that they are born that way, and that therefore they cannot really be classed as “men” and “women”, but instead are two more, different, sexes, that homosexual male is no more heterosexual male than heterosexual female. The assertion is that they are a separate group, another sex, very much like a race. With the most recent Supreme Court decisions, it seems that the law has agreed.

Therein lies the key problem, the reason our bakers and photographers and caterers and honeymoon hotels are all being told that they cannot refuse service to homosexual couples. Under the law, it would be the same as excludng service to Blacks or Chinese because of their race. We went through this in the sixties, as Whites–not just southern Whites, it happened also in Chicago–tried to segregate Blacks by legislation and private practice, when restaurants would not serve persons of color and school boards sent black students to their own schools. It was an ugly time in that regard, and while we can argue to what degree racial discrimination has been ended (we’ve addressed that before, too) we can probably agree that things have improved from then, and that we do not want to go back to that. However, the problem is that under law homosexuals are in essence the new Blacks, the group we are not permitted to segregate or exclude, not permitted to refuse to serve, because they are not ordinary men and women engaged in a disgusting sexual perversion, but newly-recognized genders whose different proclivities are ordinary for them and protected by law.

The upshot is that homosexuality is no longer defined as an aberrant sexual practice, but rather as a third (and fourth, and maybe fifth and we do not know how many more) sex, to be protected as women are protected, and any expression of a different attitude on the subject has legally been defined as discrimination.

One more word has changed its meaning significantly over the past century. The word is wrong.

To say that the word wrong has changed its meaning is, well, wrong; it still retains most of the meanings it ever had. The problem is that in jurisprudence the acceptable meaning of the word has shifted, and things which were once almost universally understood as “wrong” are not. Not that this is news, nor even different–society has always been in flux concerning what it regards as wrong in the details. However, there has been something of a fundamental shift, not a problem with what specific things are wrong but a problem with what constitutes “wrongness” itself.

Jonathan Haidt has studied morality, and has written rather persuasively that the kind of morality we have in “Western Educated Industrialized Rich Democratic” (acronym WEIRD) societies is based primarily on one of six fundamental moral values that the rest of the world, now and from time immemorial, shares. For progressive liberals, the moral value that matters is dubbed “care/harm” (making the lives of others better, not worse), although they also recognize a “liberty/oppression” value (the primary value recognized by libertarians, individual autonomy). There is a third value, “fairness/cheating”, recognized, to which we will return.

Conservatives recognize these values, but also recognize three others that are embraced by most of the rest of the world (outside WEIRD areas). These are “loyalty/betrayal” (what makes it wrong to be a “traitor”), “authority/subversion” (respect and obedience within a hierarchy), and “sanctity/degradation” (the notion that some things, whether churches or flags or sports teams, deserve respect, and others are perversions deserving disgust). Thus for most of the world, yes, it is wrong to hurt others, wrong to oppress, wrong to cheat, but it is also wrong to betray your own family, to disobey your leaders, and to disrespect your flag or other culturally identified artifacts of identity. These meanings are not completely lost on people–when someone says, “That’s just wrong,” he is probably tapping into this notion of sanctity/degradation. However, progressives are so far from these understandings of morality that many of them consider them the enemy, obstacles to what genuinely matters.

I said we would return to the “fairness/cheating” value, because it is universally held but at the same time it is expressed in two distinct ways. For progressive liberals, “fairness” is about equality of outcome; the ideal for them is the socialist model, in which everyone gets everything he needs regardless of how much he is able to contribute. For everyone else, “fairness” is about proportionality, that you reap as you sow, that people who work harder should earn more, people who contribute more to society should get more from it. Thus for most of the world, it is “fair” for potentially procreative heterosexual couples who commit to long-term child-raising relationships to receive benefits which enable that which are not available to others (e.g., tax breaks), but for progressive liberals–and for the current United States legal system and that of other WEIRD countries–it is unfair for such couples to receive such benefits merely because they are giving society a future population.

Christians are thus stymied in finding an appropriate legitimately legal response to what a century ago would have been universally recognized as a complete perversion of the legal system, because over time the meanings of these three words have changed. To have said then that recognition of a procreative union between two members of the same sex engaging in sexual relationships is a perversion of that which is inherently sacred would have made perfect sense. Today the words “homosexual marriage is wrong” no longer mean that. They mean something like, “It is unkind to allow members of one sex to have the same rights available to those of other sexes regarding temporary relational partnerships,” which is not something anyone believes. To Christians, the old meaning is still the meaning; to the progressive liberals and their legal system in western countries, it is akin to saying that blacks cannot function as free people and need to be slaves. The world has changed, and expects us to keep up.

Yet as we have also previously said, keeping up with the world is not always the right thing to do.

Bible and Theology, Law and Politics

#23: Armageddon and Presidential Politics

December 5, 2015 M.J. 1 Comment

This is mark Joseph “young” blog entry #23, on the subject of Armageddon and Presidential Politics.

A popular atheist recently suggested that Presidential candidates, and particularly Republican candidates, needed to be asked a theological question: do you believe that the end of the world is imminent, and if so is that a good or a bad thing? If war in the Middle East is positioned to blossom into Armageddon and the return of Christ, do we want to prevent the war, or encourage it?

Austrian forces ascending Mount Zion in World War I

That might be a good question for a potential leader of the most powerful military forces in the world, but it might also be a good question for the rest of us. At least, we should consider what answer our leader ought to give.

Despite what many prophecy teachers say, the sequence of events leading to the end of the world is not at all clear–some predictions touted as major parts of some theories are almost certainly predicting the destruction of Jerusalem in 70 A.D. by Titus. I have briefly reviewed the major theories (in The Sandy Becker Theory of Eschatology) along with some of the strengths and weaknesses of each and why I believe we cannot resolve the matter. However, there are many who are quite persuaded of one theory or another, and the one currently in ascendancy, indeed since early in the twentieth century, has been a version of “pre-millenialism” (if you do not know what that is, read the other article and return) in which Israel plays a major role and there is a massive world war centered in the Middle East. Every skirmish that occurs in the region, from the battles which took the territory from the Ottoman Empire in World War I to the Yom Kippur War to the current Islamic State battles, sparks anew the expectation that this might be the fight that brings all the armies of the world together to be defeated by the return of Christ.

The return of Christ is an event which Christians around the world have been anticipating for nearly two millennia, whatever our beliefs concerning what precipitates it. Late in the first century, the book variously known as The Revelation (from the Latin for “unveiling”) or The Apocalypse (from the Greek for “uncovering”) introduced to the faith the word which in English we make “Maranatha”, “Come, Our Lord” (although whether the original was marana tha, “Come our Lord”, or maran atha, “Our Lord has come”, is a question that cannot be settled from the manuscripts). We are instructed to watch for that coming, to anticipate it, to be prepared for it, even to want it and to work to hasten it–and in times when the world is falling into chaos and wickedness and darkness, it is easy to want it more.

On the other hand, we are told by Peter that the delay is an expression of God’s mercy: the moment Jesus returns, the door closes, and anyone who has not entered may not do so. It does not seem to be our place to call for the end of mercy, the closing of the door, and many of us would not do so merely because we have family or friends or colleagues who have not turned to Christ for forgiveness and salvation. I would rather not see strangers excluded from grace, and while I often note that there is no one apart from myself I am completely certain without any doubt has been forgiven and accepted by God, with varying degrees concerning other specific persons from “almost certainly” to “probably not”, I am not really in a hurry to have God terminate the free limited-time offer of acceptance into His family, and I don’t think that other believers should be so, either. Don’t get me wrong: I would love to have gone home already, if I were the only person who mattered. I just don’t think that I’m the only person who matters, even to me, nor to most believers in the world, and certainly not to God.

How, then, do we hasten the return of Christ and the end of the world, without hastening the end of the world as a path to the return of Christ?

The first thing we need to understand is that the one leads to the other, but the other is not the path to the one. That is, whether or not theories about a literal military battle at the Valley of Megiddo (har-megeddon) in which all the armies of the world are defeated in combat against an angelic host led by the resurrected and returning Jesus, we do not make that happen, indeed, we are completely unable to cause that to happen, by leading the world into war in the region. The return of Christ brings the end of the world as we know it, but it is possible that the world as we know it could end without bringing the return of Christ–indeed, arguably that has happened several times in history, most notably with the fall of the Roman Empire.

The second thing to grasp is that if such a battle is in fact the solution to the mysteriously metaphorical explanations of future events in John’s great apocalyptic vision, we will not be able to prevent it–but that does not mean we are not obligated to attempt to do so. “God has called us to peace,” and while that was Paul’s reason in I Corinthians for why a Christian whose spouse had been unfaithful should let the unfaithful spouse decide whether to preserve the marriage or get divorced, it is used as a fundamental principle of Christian conduct: we do not pick fights. We were instructed once by Christ to take swords with us if we had them, so we certainly have a basis to justify fighting when it is clearly necessary (and to debate just what fights are clearly necessary and when the right choice is to suffer the injury, to “turn the other cheek”). Yet our preference should always be for the peaceful resolution, even while keeping our sword within reach.

So for our Presidential candidates, the “right” answer to the question is probably this:

I eagerly anticipate the return of Christ, and whatever events will lead up to that, but I do not know with any certainty what those events are and will not be party to a war we can avoid honorably for any reason other than it is necessary for the safety of this country and the world in terms that persons of every faith or no faith can at least recognize as plausibly legitimate.

That is also the answer we should give if we are asked that question.

Law and Politics

#21: Genetic Counseling and Eugenics

December 1, 2015 M.J. Leave a comment

This is mark Joseph “young” blog entry #21, on the subject of Genetic Counseling and Eugenics.

Quite a few years ago now I knew a girl, a childhood friend of my wife, who married a man with Crohn’s Disease. Not long after the wedding she had a tubal ligation, and they bought a dog to pamper. The explanation was that Crohn’s is genetic, and her husband did not want to bring a child into the world who would suffer what he had suffered.

This kind of decision is made all the time. It is called genetic counseling, when medical professionals evaluate the probability that a couple will pass a genetic disease to their children. Sickle cell anemia is one of the most common of such maladies, and many black families forego having children to stem its transmission.

People want babies. It’s part of being human. However, it is also part of being human that people want healthy babies. Obstetricians have the highest malpractice insurance rates of all doctors, because imperfect babies are born and horrified parents want to blame someone with a lawsuit. Modern technology has made it easier to have perfect babies. The parents who might be carriers of sickle cell can have their unborn child tested in utero, and if the child has the disease, it can be aborted, never forced to live with the pain of this crippling disease. The same can be done for Crohn’s Disease, Spina Bifida, Down Syndrome…or can it?

North Dakota has made it illegal to perform an abortion based on detected fetal abnormalities. Ohio is likely to pass a similar law banning abortions performed because the unborn child has Down Syndrome. To those who support abortion, these laws, described as acts to protect the handicapped, are outrageous impositions on a woman’s rights. Yet there is something to the argument.

Although statistics are difficult to determine with any accuracy, everyone agrees that the majority–anywhere from sixty to ninety percent–of unborn children diagnosed prenatally with Down Syndrome are aborted in the United States, and that the estimated rate is higher in Europe where it might reach ninety-five percent. Some parts of the world applaud this as a reasonable means of wiping out a genetic disease. To some, the termination of pregnancy because the unborn child has a serious genetic defect is considered one of the best reasons for such a decision.

What, though, can be more discriminatory against the handicapped than killing them because of their handicap?

Oh, but wait: an unborn child is not, under the law, a handicapped person; he is only a growth that has the potential to become a person. He has no rights, and therefore killing him is not an act of discrimination against a handicapped child, but the excision of a deformed growth. The rights of the handicapped, and the fact that they are killed almost routinely, are irrelevant.

This, though, might not be a position anyone wants to take. After all, seven states–Arizona, Kansas, North Carolina, North Dakota, Oklahoma, Pennsylvania, and South Dakota–ban sex selective abortions as acts of gender discrimination. It is against the law in those states to terminate an unborn female child because you wanted a son (or presumably to terminate a male because you wanted a daughter). Arizona also bans abortions based on the race of the unborn child as being racially discriminatory. To say that the unborn Down Syndrome child has no rights that can be protected from discriminatory abortion (that is, abortion based on the fact that the child will be born handicapped) is to say that the unborn daughter or son, or the unborn mixed race baby, has no rights and can be killed solely for being the wrong sex or the wrong race.

There is a degree to which the laws are irrelevant, like restrictions on job terminations: you cannot fire an employee for attending a union organization meeting, or for being homosexual, or for reasons of race or religion–but you can fire an at-will employee for no reason at all, so you simply have to avoid saying that any of these factors led to the decision. In the same way, a woman can terminate a pregnancy without giving a reason for doing so; she just cannot say that the reason is because of the gender, the race, or the genetic disability of the child. In practical terms the only thing they limit is our ability to be frank about our motivations.

Even so, these laws force us to face a fundamental aspect of our attitude toward abortion. Should a mother be able to decide that she wants to abort a child because the child’s medical condition will result in the child having a less than fully normal life? Does that reflect a reasonable desire to protect the child from its own illness, or is it making a discriminatory value judgment that it would be better not to live than to live with such a handicap? (How many handicapped-from-birth adults would rather never have been born than have been born handicapped?) Is it reasonable to say that the health of the mother would be threatened by the birth of a handicapped child in a greater way than it would be by the birth of a normal child, or by an abortion? If so, is it also reasonable to say that the health of the mother would be threatened by the birth of a daughter when she wanted a son, or a son when she wanted a daughter, or by a mixed-race child instead of a pure-race child?

We have stretched the concept of “health of the mother” far enough that it amounts to “I don’t want a child, and therefore it would be unhealthy for me to have one.” How much further does it have to stretch to be, “I don’t want a handicapped child,” “a mixed-race child,” “a daughter”? It seems to me that that is not a very far stretch at all–which means either we have already stretched it too far, or we have to accept that sex-selective abortions, abortions of the genetically handicapped, and race-based abortions are all as good a reason as any other, and do not constitute discrimination against a person, because there is no person here and the mother has been given the power to decide whether there will ever be one.

Law and Politics

#19: The Smell of Grass

November 21, 2015 M.J. Leave a comment

This is mark Joseph “young” blog entry #19, on the subject of The Smell of Grass.

Just about the middle of last year (2014) I wrote two articles related to the legalization of marijuana (now combined in one page with two other articles on the subject), the first raising the question of whether the legalization of marijuana in some states meant employers could no longer drug test for it, and the second noting that the answer is yes, in most cases you can be fired for using marijuana based on a failed drug test even in a state in which marijuana use is legal.

In our search and seizure series, rather separately, we reported on cases in which the fact that an involved officer “smelled marijuana” became probable cause for further investigation. That raises another question: if it is legal for some but not all people to use marijuana in a given state, does that mean that the smell of marijuana can no longer be the basis for probable cause that a crime is being committed? After all, there is now the possibility that whoever is burning the marijuana is doing so legally, and thus neither the possession nor the use of marijuana is necessarily a crime. Are officers now forbidden to assume there is a crime in progress if they smell the drug?

In New Jersey, that has recently been answered by a state appeals court, a ruling binding on all New Jersey trial courts.

In 2012 police in Cumberland County responded to a report of gunfire, and found George Myers sitting in a car in the area. Police quite reasonably questioned him, but smelled marijuana coming from the car. Based on the smell of marijuana they claimed probable cause to search Myers, and found both marijuana and an unlicensed handgun in his jacket. Myers took a plea agreement for a five year sentence on the weapons charge, but also filed an appeal, claiming that the search was unlawful because there was no probable cause: he might have been using the drug under the authority of New Jersey’s 2010 Compassionate Use Medical Marijuana Act (CUMMA). He was not, but Myers maintains that the fact that he might have been meant that police could not conclude there was a crime in progress, and thus having no basis to search him would not have found the unlicensed gun, and that he could not be convicted on evidence obtained in an illegal search.

The court says no, that is not what the law means. Marijuana is still classified as a controlled dangerous substance, and its possession and use is still criminal. CUMMA provides an affirmative defense; it does not decriminalize the action. The best known example of an affirmative defense is a self-defense killing: a homicide has been committed, and it would be murder except that the victim was clearly in danger of being killed (or sometimes raped or severely assaulted) and so acted reasonably and will not be found guilty of murder. In New Jersey, police are instructed not to arrest someone for marijuana possession if the individual “reasonably appears” to be enrolled in the medical marijuana program (usually by presenting the program identification card).

As of the end of last year there were a bit shy of four thousand persons so enrolled in the entire state, out of almost nine million residents, so it is generally unlikely that any particular user is going to be enrolled. However, the decision was not based on this probability assessment, but on the nature of the law itself: just as it is never really legal to kill someone threatening you with bodily harm but will be excused if it was reasonable for you to believe the threat was genuine and imminent, so too it is never really legal to possess or use marijuana in New Jersey but will be excused if you have been authorized to use it under the medical marijuana program. It is important to understand that, because just as this ruling only applies in New Jersey, the law itself only applies in New Jersey; the laws will be different in other states, and the exact nature of the treatment of marijuana users under the law is going to be the key to whether probable cause can be assumed. Had the law stated that it was not illegal for such persons to possess or use marijuana, that might have led to a different outcome; what it actually said was that their illegal possession and use of the substance will be excused based on medical necessity, that in essence their crime will be overlooked by the system.

So do not think that the fact that medical marijuana is legal in New Jersey means that the smell is no longer evidence of a crime. In fact, although it is a technicality, medical marijuana is not legal in New Jersey, it is simply a crime that is excused under those circumstances. That is not at all the same thing.

Law and Politics

#16: The New First Amendment Speech Delimiter

November 9, 2015 M.J. Leave a comment

This is mark Joseph “young” blog entry #16, on the subject of The New First Amendment Speech Delimiter.

The town of Gilbert, Arizona, recently had a local ordinance struck down by the United States Supreme Court in the case Reed v. Town of Gilbert, 576 U.S. ___ (2015). Justice Thomas’ majority opinion was joined by Chief Justice Roberts, and Justices Scalia, Kennedy, Alito, and Sotamayer, and there were three concurring opinions, written by Alito (and joined by Kennedy and Sotamayer), Justice Kagan (joined by Justices Ginsberg and Bryer), and Breyer. All nine justices agreed that the law was unconstitutional on its face, Kagan saying that it failed even “the laugh test”.

We might consider this odd, since the appeal came from the 9th Circuit Court of Appeals, which had upheld the ordinance saying it saw no problem with it. That is significant, because the majority opinion inherently alters the face of first amendment law, although Kagan’s concurring opinion disagrees with that alteration–yet apparently the circuit court would not have been right anyway, which is part of the confusion here.

The problem arose because of a sign ordinance. It is fairly standard for communities to regulate the posting of signs, both for safety and for “beautification”, the overall appearance of the community, and to distinguish signs into categories. Overall, this particular ordinance stated that signs may not be posted without a permit, then gave twenty-three categories of signs that were exempt from the permit requirement, but gave different standards for different categories. One of the categories is “Temporary Directional Signs Relating to a Qualifying Event”, loosely defined as public meetings of a non-profit organization, and the restrictions on these are rather strict. Two other categories are discussed in Roberts’ opinion, “Political Signs”, which are intended to influence an election, and “Ideological Signs” which are intended to influence public opinion more generally. The limitations on such signs included the maximum size, where they might be posted, when they could be posted, and when they would have to be removed.

The plaintiff and appellant in the case is a church whose place of meeting was constantly changing. It was the practice of the church to post signs announcing the location of the Sunday morning service on Saturday morning and remove them around noon on Sunday. The code, however, stated that such “Temporary Directional Signs” could not be posted more than twelve hours prior to the event, must have the time and date on them, and had to be removed within an hour after the event–and the town code enforcement agency fined the church twice for non-compliance with these regulations. Trying and failing to reach some kind of accommodation on the matter, the church took it to court, and was twice rebuffed before receiving Certiorari, that is, having the Supreme Court agree to hear the matter.

In the first paragraph the opinion says that the categorization of the signs is “content based” and therefore will not withstand “strict scrutiny”. This was where the Court differed from the lower level decisions, which concluded that the distinctions were “content neutral” and therefore faced only “intermediate scrutiny”.

At issue is the circumstances under which the government can regulate speech, and although here it is about speech in the form of posted signs, the opinion is such that it would apply to speech in all media. In Constitutional Law, laws which might impinge on constitutionally-protected rights are subject to “scrutiny” of different levels. “Intermediate scrutiny” in essence means that there has to be a definable government interest and the law must address that interest in a fair and balanced way that does not impinge unreasonably upon individual rights. “Strict scrutiny” means that the government must demonstrate that it has a compelling interest in regulating the conduct, and the means of regulation is the least intrusive means of so regulating it. Very few laws survive strict scrutiny once it is invoked. That is, in fact, the reason for the Hobby Lobby-related cases: a Constitutionally protected right was threatened in a way that forced the government to prove that its objectives were compelling and there was not a less-intrusive way to achieve them.

Traditionally in free speech cases the distinction has been made between “content-neutral” laws, which receive intermediate scrutiny, and “content-based” laws, which receive strict scrutiny. Content-based laws are primary those that attempt to quash the expression of a particular opinion or which reveal specific information; if the government wants to block the publication of a particular article it has to prove that it has a legitimate compelling government interest in doing so and cannot achieve that objective otherwise. An example would be a law that criminalizes the publication of classified documents, in which the government argues that such publication threatens national security. It also extends to block laws barring discussion of particular topics–if the government wants to ban discussion of the commercial use of nuclear power, it thereby interferes with the marketplace of ideas impermissibly. On the other hand, if a municipality wants to regulate how big signs can be, where they can be posted, and similar matters not related to what the sign is saying, that’s content-neutral, and always has been.

What the Court did in Gilbert, though, was expand the definition of “content-based”. It said that because the the ordinance regulated signs based on the nature of the information they communicated–e.g., giving directions to temporary meeting locations, promoting candidates for election–and that the regulations distinguished different kinds of signs for different restrictions, it was inherently “content-based”, and therefore faced strict scrutiny. The lower courts had not thought so, seeing these as content-neutral because they did not distinguish what group was meeting, or which candidate was being promoted, and therefore were unbiased in regard to content; the Supreme Court said that was a mistake.

So big deal, towns cannot regulate the placement of signs which give directions to church services and Alcoholics Anonymous meetings and Boy Scout picnics differently from other kinds of signs. How does that matter in the big picture? It matters because of that new definition of content-based speech. In Springfield, Illinois an ordinance banning panhandling in certain parts of the city has been struck down because it is based on the “content” of speech begging for money. A South Carolina statute that barred the use of “robocalls” for “political” and “commercial” topics but not others (for example, robocalls to alert families to school closings were permitted) has been invalidated because it is content-based. The applications of the new definition of “content-based” are going to have far-reaching repercussions, one of the concurring opinions noting that a lot of Fedieral regulations concerning product labeling, safety notifications, and personal privacy are in jeopardy.

So our freedom of speech just got a bit broader. We may be living in interesting times.

In addition to blog entries with the appropriate tags, see also the article Freedom of Expression.

mark Joseph "young"

Category Archives: Law and Politics

#48: Inequities in the Justice System

#42: Politicians and Statemen

#41: Ted Cruz and the Birther Issue

#36: Ligation Litigation

#34: Happy Old Year

#24: Religious Liberty and Gay Rights: A Definitive Problem

#23: Armageddon and Presidential Politics

#21: Genetic Counseling and Eugenics

#19: The Smell of Grass

#16: The New First Amendment Speech Delimiter

A generalist: learning less and less about more and more, one day to know nothing about everything.