Tag Archives: Judiciary

#305: The Cross Case: Supreme Court Sours on Lemon

This is mark Joseph “young” blog entry #305, on the subject of The Cross Case:  Supreme Court Sours on Lemon.

I have been watching for this case since it hit the circuit court, and so was pleased to see that the Supreme Court had decided it.  It seems on one hand to be a simple question:  is a century-old war memorial in the shape of a forty-foot cross originally built by private citizens but for half a century maintained on public land at public expense a violation of the “establishment” clause, that is, a constitutionally impermissible promotion of a particular religion by the government?  That’s the question; yes or no?

So imagine my surprise to discover that although Justice Alito managed to write a seven-to-two majority opinion that said no (that is, the cross can stay), there were five concurring opinions (a concurring opinion is one that agrees with the conclusion but not with all the reasoning) plus a dissent.  So how is there so much confusion over so simple a question?

At the time of this writing, I was unable to find the official Supreme Court PDF online; however, Justia has it in an easy-to-access form.  The Court combined two cases into one, so the title reads

THE AMERICAN LEGION, et al., PETITIONERS

v.

AMERICAN HUMANIST ASSOCIATION, et al.; and

MARYLAND-NATIONAL CAPITAL PARK AND PLANNING COMMISSION, PETITIONER

v.

AMERICAN HUMANIST ASSOCIATION, et al.

A lot of the trouble revolves around what’s been called the Lemon Test, named for Lemon v. Kurtzman, 403 U.S. 602 (1971), in which the court articulated a three-part test for whether something violated the establishment clause.  The short version is:

  1. Does the action/activity have a secular purpose?
  2. Is the principle or primary effect one that neither advances nor inhibits religion?
  3. Does it avoid fostering an excessive government entanglement with religion?

By these three questions all such cases were supposed to be answered.

Let’s get some backstory.

Just after World War I, a citizens group in Bladensburg, Maryland wanted to honor the forty-nine men from their community who died in that conflict.  Quite a few of the fallen in that war were never returned, and more were never identified.  The monument would serve as a surrogate grave for them, for their families to visit, and as a recognition of the service of so many others.  They hired an architect/sculptor, who designed a large Latin Cross, modeled on the crosses that had been used as temporary grave markers for the over one hundred thousand Americans buried in European graveyards.  (The Star of David was also used for such markers, but only about five percent of American casualties were Jewish, so crosses dominated the photos that came home and were emblazoned in the minds of the mourners.)  The citizens group raised money through donations, but ran out before completing the work, so the American Legion took over, adding their emblem to the cross, finishing the work, and maintaining it at their own expense into the early 1960s.  At that time, actions were taken to transfer the ownership of the property to the Maryland Parks Department, in part because the road around the monument had become a major traffic problem, in part because the American Legion was no longer able to afford it, and in part because the State wanted to expand the surrounding area into a memorial park with monuments for all the other wars.  Since then the monument has been maintained by state funds.  However, a few years back the American Humanist Association filed suit claiming that the cross was offensive and an impermissible endorsement of the Christian religion.  They wanted it removed, or demolished, or at the very least stripped of the crosspiece so it would be an obelisk instead of a cross.

The Federal District Court applied the Lemon test and sided with the park service, stating that the primary purpose of the cross was to honor the dead of World War I, and there was no evidence that any religious purpose was intended in its design or its present maintenance; any impartial observer who knew the history of the monument would conclude that it was not about promoting Christian faith, but about honoring the war casualties.  A three-judge panel of the Circuit Court, however, disagreed in a split decision, again applying the Lemon test but asserting that the cross was so tied to Christian belief that anyone seeing it would think it was an emblem promoting that religion.  The full court declined to review the case en banc (that is, all the judges), and the Supreme Court granted certiorari (or cert., agreeing to hear it).

Justice Alito wrote that there were many problems with applying Lemon, and that since the the test has a lot to do with motivations and intentions it is particularly difficult to apply the case to situations with deep historic roots.  It can’t be said that those who originally erected the monument had a religious purpose in view.  He cites other situations in which crosses are used as an emblem that do not have a religious purpose, notably among them the International Red Cross, whose red cross on a white field was designed to call to mind the white cross on a red field that was the flag of the neutral country Switzerland, and so marking the deliverers of medical care as neutral.  So, too, the crosses that dotted graveyards throughout Europe had become an image of the fallen in that war, popularized alongside the poppy even more by the poem In Flander’s Field.  Shortly after the war the same emblem became the basis for the national congressional medals known as the Distinguished Cross and the Navy Cross.  There was no reason to suppose that the original designers of the cross intended it to have any greater religious significance than that which is attached to any grave marker.  Indeed, one of the members of the committee which began the work and approved the design was Jewish.  Further, there is no evidence of bias or prejudice, sectarian or otherwise.  At the dedication ceremony, a Catholic Priest opened with an invocation, a politician gave the keynote address, and a Baptist minister gave the closing benediction.  Although racial tensions were high in the country and the Ku Klux Klan held a rally within ten miles of the site within a month of the dedication, black and white soldiers were listed together on the plaque.  To claim that the original intention was religious is to read our own ideas into their situation; we cannot do that.  Further, he argued, the fact that the monument has been there for almost a century means it has taken many other significances, historical and cultural.  We might think there is a religious significance to it as well, but it is a relatively small part of a memorial that has been part of the community for so long.  Besides, to destroy or deface it would appear to be an act against religion, not an act furthering religious neutrality.

The opinion did not overturn Lemon; it simply said that in dealing with matters steeped in history, it was generally impossible to know the motivations of those who made the original decisions, and so Lemon was rendered useless in such cases.

Justice Gorsuch in the main agreed, but went further.  Lemon, he said, was useless as a test.  Case law demonstrates that a court using the test can reach any conclusion it wants.  More pointedly, the notion of the response of a reasonable observer (whether a reasonable observer would think that the purpose was primarily religious) has created an “offended observer” status, that someone can file suit against an action on the grounds that it offends him.  This, Gorsuch argues, is not real injury and the Constitution gives no basis for anyone to sue without real injury.  Overturning Lemon and getting rid of its test would resolve much of the confusion in the courts and mean in the future cases like this, in which someone claims to be offended by the sight of a supposedly religious object, would be dismissed perfunctorily.

Justice Thomas agreed with that, but went further.  The Establishment Clause, he observed, begins “Congress shall make no law”.  He explains what kinds of laws had existed that were eliminated, but asserts that the protection has nothing to do with actions that are not based on laws made by Congress.  He suggests that one might apply the I Amendment to the States by virtue of the XIV Amendment, but even so the original purpose of the Establishment Clause was to forbid legislative actions compelling citizens to support a specific church or denomination.  Local creches, non-sectarian thanksgiving services, opening invocations and closing benedictions, and memorials to the dead are not covered by this, as they are not compulsory and in the main are not legislative acts.  Lemon, he asserts, should be overturned because it goes far beyond what is Constitutional.

Justice Kagan also wrote a concurring opinion, agreeing with nearly all of Justice Alito’s opinion but for two sections.  The important disagreement is that she asserts that Lemon, with its focus on purposes and effects, is still very valuable even though it does not resolve every Establishment Clause problem, and she would retain it.  Her lesser disagreement is that Justice Alito suggested that history would play an important part in Establishment Clause analysis, which she does not reject entirely but does not wish to see embraced as a principle of law.  She agrees, though, that it might be important to consider whether long-standing monuments, symbols, and practices reflect respect for different views and tolerance, with an honest effort to achieve non-discrimination and inclusivity, and a recognition of the important role that religion plays in many American lives.

Justice Kagan also agrees with the concurrence written by Justice Breyer, who has long said that no one test works for all Establishment Clause cases, but that in each case the court has to consider the purposes of the clause, “assuring religious liberty and tolerance for all, avoiding religiously based social conflict, and maintaining that separation of church and state that allows each to flourish in its “separate spher[e]”.  He says that the majority opinion is correct that there is no significant religious importance to the Bladensburg Cross, and that its removal or destruction would signal a hostility toward religion against the Establishment Clause traditions.  However, he objects to any sort of “history and tradition test” that might permit religiously-biased memorials on public lands in the future.

That, apparently, is a suggestion in Justice Kavanaugh’s concurrence.  He fully joins the majority opinion, but emphasizes the importance of reviewing history and tradition in such cases.  He suggests that the Lemon test has proven useless and is never really used by the Supreme Court.  He also expresses sympathy for those, particularly Jews, who feel alienated by the cross, which he says must be recognized as a religious emblem.  The fact that it is a religious emblem does not mean the government cannot maintain it–but the government does not have to do so, and other branches of the government could take action to remove the cross or transfer its ownership and care to a non-governmental entity.  The objectors do have recourse to the political process if they wish to pursue this; what they don’t have is a court decision declaring that the cross cannot be maintained by the State.

Which leaves Justice Ginsberg’s dissent, joined by Justice Sotomayor.

Ginsberg maintains that the Latin Cross, defined as one in which the lower upright is longer than the other three branches, has always been recognized as a Christian symbol, and has never had a secular meaning or application.  (This in contrast to the Greek Cross, in which the four branches are equal.)  The Bladensburg “Peace Cross” is thus offensive to anyone of any other religion or of no religion.  Marshaling evidence that even in the aftermath of World War I the cross was identified by the government as a sectarian symbol to be put on the graves of all Christians and of any persons not known not to be Christian (in case they were), with Stars of David placed on all graves of soldiers known to be Jewish.  (Those who were known not to be either could, at the family’s request, have a plain stone, be transported home, or be interred in a private cemetery overseas with a headstone of their choice.)  There has never been a case in which a Latin Cross was identified as a non-sectarian emblem of death, and historically it has been regarded as conveying the message that Christians are saved and all others are damned–an offensive message to all those others.

While Ginsberg’s claim is well-supported, it is not clear that the modern cultural view of crosses as memorials perceives them as specifically Christian.  It comes to me that many graves of pets are marked with crosses, but no Christian denomination of which I am aware supports the theological belief that animals can be Christian, The Vicar of Dibbley notwithstanding.  (The eternal destiny of animals is not something the Bible tells us, which makes sense, as C. S. Lewis would have said, because it’s not actually something we need to know.)  Crosses are also frequently used in decorative graveyards such as in Halloween displays.  To many, the cross says “grave marker” much more than it says “Christian”.

I can’t say that everyone perceives such memorials as non-sectarian, but I do think that over time they have become more so.  It appears that the Court, in the main, agrees with that:  memorials using crosses in their imagery have become non-sectarian by their use over time, and the Bladensburg Cross far more represents the fallen of World War I and, since its rededication in 1985, all the American casualties of all our wars.  Lemon has not been overturned, but it has been significantly limited in its application in the future.

The Peace Cross stands.

#289: Stifling Lozman’s Protected Speech

This is mark Joseph “young” blog entry #289, on the subject of Stifling Lozman’s Protected Speech.

From one perspective, the most interesting thing about Fane Lozman’s recent victory at the United States Supreme Court is that it is the second time this ordinary citizen has taken a case to that court, and the second time he has won.  It really does happen in these United States, although in fairness he solicited aid from a law school and a group of pro bono attorneys.

The reason it is of interest to us is that this second win is an Amendment I Freedom of Expression case, a subject we follow with some interest.

The previous case is only of passing interest to us, more as background to the second.  Lozman built a floating house, which he had towed to various places until he docked it at a marina in Riviera Beach, in Palm Beach County, Florida.  The city wanted to exercise eminent domain over the marina to seize it, tear it down, and put it in the hands of a commercial developer.  Lozman objected, and brought a lawsuit against the city for improper procedure when they attempted to pass the measure a day before a Florida state law went into effect making such use of eminent domain illegal.  He won that suit.  However, while he was involved in this, the city declared that his house was a “vessel” under maritime law, and seized it.  Lozman fought this, stating that his house was not a “vessel” under the definitions provided in the law, and therefore not subject to seizure under that law.  In Lozman v. City of Riviera Beach, Florida, 568 U.S. 115 (2013), the Supreme Court agreed.  The house was not designed to be a mode of transportation, and for this and several lesser reasons the court concluded 7 to 2 (Sotameyer and Kennedy dissenting) that maritime jurisdiction was inappropriate, and the city owed Lozman a lot of money to replace his home.

In the midst of these battles, Lozman showed up at a City Council meeting, and during the public comments time stepped forward and began calmly talking about political corruption.  It is said that he spoke for about fifteen seconds when one of the Councilmen instructed the police officer who was present for the purpose of maintaining order to remove him from the room.  He was handcuffed and charged, but the charges were dropped.  However, he filed suit claiming that his Amendment I right to free speech was violated.

In Fane Lozman, Petitioner v. City of Riviera Beach Florida, 585 U.S. ___ (2018), the Supreme court in an 8 to 1 decision said that it was–but noted that there were special circumstances that made it so.

At the head of those special circumstances, Lozman had presented evidence to the effect that the City Council had previously adopted an official policy of intimidation against him and others who had spoken out against them, and asserted that his arrest was executing that policy.  The evidence included a transcript of a closed Council meeting in which Councilmember Elizabeth Wade suggested that the city use its resources to “intimidate” Lozman and others who had filed lawsuits against the city.  At a later point in the meeting, one of the other councilmembers asked whether there was “a consensus of what Ms. Wade is saying,” and this was affirmed by others present.  Lozman asserts that these remarks formed an official plan to intimidate him.

The lower courts held that because there was probable cause to arrest Lozman at the meeting (on the very minor charge that he did not stop speaking when asked to do so, and thus was considered disruptive to the meeting) he could not claim the arrest was retaliatory.  However, the Supreme Court decided that if a jury might believe that the closed door meeting comments created an official policy of retaliation, and if the arrest at the later meeting was an implementation of that policy, Lozman would prevail.

It does not mean that all cases in which people are arrested for trying to speak at public meetings and so disrupting the meeting involve violations of Amendment I free speech rights, but only those in which there is evidence that the arrest is part of a government policy of intimidation against the person arrested.

Justice Thomas dissents, stating that the rule propounded by the majority is too convoluted and might never apply in any case including the present one, and that the previous rule in essence said that if probable cause was present no case for retaliatory arrest could stand, even if it involved freedom of speech.

Justice Thomas is right:  it is a bad decision.  It allows governments to harrass citizens exercizing their freedom of speech at meetings as long as there isn’t a paper trail suggesting that they agreed to do this.  Lozman probably wins (and I think that when Justice Kennedy writes that a reasonable juror would have to be able to believe that the statements at the closed meeting created a policy and that the action at the open meeting implemented it he believes that they would) because the idea of intimidating him was discussed on the record at a meeting.  If the Committeemembers had discussed this at a coffeeshop or cocktail party and agreed informally to do this, he would have no case–but his rights would have been just as impinged.

.

Meanwhile, the dissent’s probable cause test is worse.  I once was discussing a law that deprived anyone who had been convicted of a felony of certain rights, and commented that felonies were generally rather serious crimes.  I was informed that legislatures had taken to defining more and more crimes of lesser and lesser severity as “felonies” in order to enforce stricter penalties against them.  In the present case, it seems initially Lozman did not believe there was probable cause for an arrest, and there was some doubt as to whether there was probable cause for the charges initially brought.  He was charged with disorderly conduct and resisting arrest without violence–the former because he stepped up to the podium to raise issues at a public meeting, the latter because he refused to relinquish the podium when asked.  The District Court found that as a matter of law there was insufficient evidence to support probable cause for either of those charges.  However, the city dug up another statute prohibiting interruptions or disturbances in schools, churches, or other public assemblies–a charge never mentioned prior to the trial–and maintained that there was probable cause to arrest Lozman on that charge; Lozman conceded that there was probable cause for that.  That, though, shows that if the authorities want to arrest someone, they can probably find probable cause to do so if they look hard enough.

What was needed was a looser rule, one that permitted evidence of a pattern of intimidation to stand as proof of an intention of intimidation.  Lozman’s case adduced many incidents of arbitrary official actions taken against him; the stifling of his right to speak at the public meeting was the most egregious because it impinged his Amendment I freedom of speech.

The claim that Lozman’s speech was off-topic was insupportable.  In the first fifteen seconds he spoke of two government officials in other jurisdictions that were arrested for corruption.  That could be the preamble to any of a dozen on-topic speeches.  For the committee to have claimed he was speaking about something outside the parameters of the meeting is not defensible.

.

Congratulations to Lozman for winning twice at the Supreme Court (and winning several lower court cases along the way).  However, this decision is going to have to be modified by future ones before it is at all useful in the defense of free speech.

#287: They Can’t Take Your Car

This is mark Joseph “young” blog entry #287, on the subject of They Can’t Take Your Car.

I think most of us became aware of the criminal civil forfeiture rules from the original Miami Vice television series.  The narcotics division seemed to have an unbelievable budget, covering expensive sports cars, helicopters, mansions, and so much more.  What we learned was that the State of Florida had a law that permitted the seizure from criminals of any property used to facilitate the commission of a crime, and so our star detectives were outfitted and equipped with everything that had belonged to the major drug dealers they had arrested.  The program worked so well, about half the states in the Union adopted a similar program, enabling them to fund ongoing law enforcement operations from seized cash and property taken from those successfully convicted.

The programs work so well, they are often used against minor offenders, that is, persons committing minor offenses, when there is valuable or useful property coveted by local law enforcement officers.  The United States Supreme Court has now dealt that practice a significant setback, although it has not entirely eliminated it.

The case is Tyson Timbs v. Indiana, 586 U.S. ____ (2019).

Having pled guilty to dealing in a controlled substance and conspiracy to commit theft, Timbs was sentenced to one year home detention and five years probation including a court-supervised addiction treatment program.  He was also ordered to pay fines and court costs totaling one thousand two hundred three dollars ($1203.00).  However, at the time of his arrest he was driving a Land Rover sport utility vehicle which he had purchased for forty-two thousand dollars ($42,000.00); it was established as a fact that the money for the SUV came from a life insurance policy payout upon the death of his father, and not from any criminal enterprise.  Asserting that the vehicle had been used to transport heroin, the state filed a claim for forfeiture in civil court.

The trial court denied the claim.  It observed that the maximum fine assessible against Timbs for the crimes for which he was convicted was ten thousand dollars ($10,000.00), and the value of the vehicle was over four times that amount not long before it was seized.  Citing the VIII Amendment prohibition against excessive fines (appropriately dubbed the Excessive Fines Clause), it maintained that such a forfeiture was a penalty disproportionate to the crime, and thus unconstitutional.

The Court of Appeals of Indiana agreed, but the Indiana Supreme Court reversed, stating that the Excessive Fines Clause did not apply to the states.

Justice Ginsberg wrote that the Indiana court was wrong.  The entire court agreed with that decision, although Justice Thomas wrote a concurring opinion reaching the same conclusion on a different basis and Justice Gorsuch wrote a concurring opinion noting that Thomas might be correct.

As originally passed, the Bill of Rights applied only to the Federal Government.  The passage of the XIV Amendment following the Civil War has been understood to cause nearly all the rights protected in it to apply equally against the States, with very few exceptions.  (The one exception noted by Ginsburg is the requirement that jury decisions must be unanimous, which apparently does not apply to the state courts.)  Ginsberg argues that the protection against unreasonable fines, like other VIII amendment protections such as excessive bail and cruel and unusual punishment, is “fundamental to our scheme of ordered liberty”, and thus applies as they do.

Justice Gorsuch agrees, with the quibble that it perhaps is not the Due Process clause of the XIV amendment but that amendment’s Privileges or Immunities clause that brings the VIII amendment to bear against the states, but agrees that this is not a significant matter in the present case.  That quibble is the basis of Justice Thomas’ concurrence.  He maintains that the concept of “due process” has been stretched beyond any reference to any process due to the citizen to cover exactly those privileges and immunities that were intended to have been covered by the other clause.

The bulk of both the majority opinion and Thomas’ concurrence consists of the history of the right against excessive fines, ranging from Magna Carta through the post Civil War passage of the XIV amendment, and is informative and interesting but not otherwise of consequence here.

The question, then, is what does the decision mean?

It does not mean that asset forfeiture has been swept away in all cases.  Rather, it means that the Indiana trial court was right:  the value of objects seized by law enforcement must be reasonable to the nature of the crime and the assets of the criminal.  Had Timbs transported the heroin in a three thousand dollar used car on which he was paying installments, we would not be having this discussion.  It remains to be seen whether Miami’s narcotics division will be able to argue that the nature of the crimes and the assets of the criminals in their war against drugs are high enough to justify seizing those assets for use in the fight, but they will have to be prepared to make that argument the next time they seize such assets.  The temptation for governments to fund their operations through fines rather than taxes has been dealt a setback, a limitation to which abused citizens can appeal in the future.  The protection of citizens against arbitrary seizure of property has been reinforced.

#278: The 2018 Recap

This is mark Joseph “young” blog entry #278, on the subject of The 2018 Recap.

A year ago I continued a tradition of recapitulating in the most sketchy of fashions everything I had published over the previous year, in mark Joseph “young” web log post #219:  A 2017 Retrospective.  I am back to continue that tradition, as briefly as reasonable.  Some of that brevity will be achieved by referencing index pages, other collections of links to articles and installments.

For example, on the second of January, the same day I published that retrospective here, I also posted another chapter in the series of Multiverser novels, at which point we were at the twenty-third chapter of the fourth book, Spy Verses (which contains one hundred forty-seven short chapters).  We had just published the first of seven behind-the-writings web log posts looking at the writing process, but all of that is indexed at that link.  Also on that same day the Christian Gamers Guild released the second installment of the new series Faith in Play, but all of those articles along with all the articles in the RPG-ology series are listed, briefly described, and linked (along with other excellent articles from other members of the guild) in the just-published Thirteen Months in Review on their site.  That saves recapping here two dozen more titles in the realms of Bible/theology and gaming, many of them excellent.  It should also be mentioned that six days a week I post to the Chaplain’s Bible study list, finishing Revelation probably early next week, and posting “Musings” on Fridays.

Spy Verses wrapped up in October, and was followed by the release of an expansion of Multiverser Novel Support Pages, updated character sheets through the end of that book, and by the end of that month we had begun publishing, several chapters per week, Garden of Versers, which is still going as I write this.

Now would probably be a good time to mention that all of that writing is free to read, supported by reader contributions–that means you–through Patreon or PayPal Me.  If you’ve been following and enjoying any of those series, your encouragement and support through those means goes a long way to keeping them going, along with much else that has been written–and although that may be the bulk of what was written, there is still much else.

Since on January 10th the first of the year’s web log posts on law and politics appeared, we’ll cover those next.

#220:  The Right to Repair presents the new New Jersey law requiring manufacturers of consumer electronics to provide schematics, parts, and tools to owners at reasonable prices, so that those with some knowledge in the field can troubleshoot and repair their own cell phones and other electronics, and none of us need be at the mercy of price-gouging company stores.

#221:  Silence on the Lesbian Front addressed the ramifications of a Supreme Court decision not to hear a case against a Mississippi law permitting merchants to decline wedding services to homosexual weddings.

#222:  The Range War Explodes:  Interstate Water Rights arose at the Supreme Court level when Florida claimed Georgia was using too much of the water that should flow downstream to it.

#225:  Give Me Your Poor talks about our immigrant history, the illusion that it was entirely altruistic, and the question of what we do going forward.

#229:  A Challenge to Winner-Take-All in the Electoral College looks at a federal lawsuit claiming that the standard electoral college election system violates the one-person-one-vote rule.

#230:  No Womb No Say? challenges the notion that men should not have a say in abortion law.

#231:  Benefits of Free-Range Parenting discusses the recent idea that parents who do not closely monitor their kids are not being negligent.

#241:  Deportation of Dangerous Felons considers the Supreme Court case which decided that the law permitting deportation of immigrants for “aggravated felonies” is too vague.

#247:  The Homosexual Wedding Cake Case examines in some detail the decision that protected a baker from legal action against him for refusing service to a homosexual couple, based primarily on the prejudicial language of the lower court decision.

#251:  Voter Unregistration Law examined a somewhat complicated case upholding a law that permits removal of non-responsive voters from the registration lists.

#253:  Political Messages at Polling Places presented the decision that non-specific political clothing and such cannot be banned from polling places.

#255:  On Sveen:  Divorcees, Check Your Beneficiaries examined a convoluted probate case in which a law passed subsequent to a divorce dictated how life insurance policy assets should be distributed.

#259:  Saying No to Public Employee Union Agency Fees is the case the unions feared, in which they were stripped of their ability to charge non-members fees for representation.

#261:  A Small Victory for Pro-Life Advocates hinged on free speech and a California law compelling crisis pregnancy centers to post notices that the state provides free and low-cost abortions.

#270:  New Jersey’s 2018 Election Ballot was the first of two parts on the election in our state, #271:  New Jersey’s 2018 Election Results providing the second part.

#274:  Close Races and Third Parties arose in part from the fact that one of our congressional districts was undecided for several days, and in part from the fact that Maine has enacted a new experimental system which benefits third parties by having voters rank all candidates in order of preference.

One post that not only bridges the space between religion and politics but explains why the two cannot really be separated should be mentioned, #224:  Religious Politics.

My practice of late has been to put my book reviews on Goodreads, and you’ll find quite a few there, but for several reasons I included #223:  In re:  Full Moon Rising, by T. M. Becker as a web log post.  I also copied information from a series of Facebook posts about books I recommended into #263:  The Ten Book Cover Challenge.

There were a few entries in time travel, mostly posted to the Temporal Anomalies section of the site, including Temporal Anomalies in Synchronicity, which is pretty good once you understand what it really is; Temporal Anomalies in Paradox, which is a remarkably convoluted action-packed time travel story; Temporal Anomalies in O Homen Do Futuro a.k.a. The Man From the Future, a wonderfully clever Brazilian film in which the time traveler has to fix what he tried to fix, interacting with himself in the past; and Temporal Anomalies in Abby Sen, an Indian film that is ultimately pretty dull but not without some interesting ideas.

In the miscellaneous realm, we had #227:  Toward Better Subtitles suggesting how to improve the closed captioning on television shows; #228:  Applying the Rules of Grammar encourages writers to understand the rules and the reasons for them before breaking them; and #273:  Maintaining Fictional Character Records gives some details of my way of keeping character information consistent from book to book.

This year we also began a subseries on the roots of Christian Contemporary and Rock Music, starting with #232:  Larry Norman, Visitor in March, and continuing with

  1. #234:  Flip Sides of Ralph Carmichael
  2. #236:  Reign of The Imperials
  3. #238:  Love Song by Love Song
  4. #240:  Should Have Been a Friend of Paul Clark
  5. #242:  Disciple Andraé Crouch
  6. #244:  Missed the Archers
  7. #246:  The Secular Radio Hits
  8. #248:  The Hawkins Family
  9. #250:  Original Worship Leader Ted Sandquist
  10. #252:  Petra Means Rock
  11. #254:  Miscellaneous Early Christian Bands
  12. #256:  Harry Thomas’ Creations Come Alive
  13. #258:  British Invaders Malcolm and Alwyn
  14. #260:  Lamb and Jews for Jesus
  15. #262:  First Lady Honeytree of Christian Music
  16. #264:  How About Danny Taylor?
  17. #266:  Minstrel Barry McGuire
  18. #268:  Voice of the Second Chapter of Acts
  19. #272:  To the Bride Live
  20. #276:  Best Guitarist Phil Keaggy.

Looking at our Bible and Theology posts, the first of the year landed in the end of March, as #233:  Does Hell Exist? attempts to explore how the modern conception of hell compares with the Biblical one; #245:  Unspoken Prayer Requests finds theological problems with asking people to pray without telling them what to pray; and #267:  A Mass Revival Meeting explains what is really necessary to bring about a revival.

There were also a couple of entries related to gaming, including the republication of a lost article as #237:  Morality and Consequences:  Overlooked Roleplay Essentials–the first article I ever wrote to be published on someone else’s web site.  There was also a response to some comments made by #239:  A Departing Member of the Christian Gamers Guild, and a sort of review of a convention appearance, #249:  A 2018 AnimeNEXT Adventure.

A couple previously published pieces appeared in translation in the French edition of Places to Go, People to Be, which you can find indexed under my name there.

So that is a look at what was published online under my name this past year–a couple hundred articles, when you count all the chapters of the books (and more if you count all the Bible study posts).  In the future, well, I have a lot more to write about Christian music, I’m only getting started with Garden of Versers and have another novel, Versers Versus Versers, set up and ready to run, several Faith in Play and RPG-ology articles are in the queue (one publishes today), and there’s a study of the Gospel According to John ready to post and the Gospel According to Mark being prepared to follow it, plus some preliminary notes on Supreme Court cases, an analysis of a time travel movie that’s taking too long to finish, and more.

Again, your support through Patreon or PayPal.me helps make all of it possible.  Thank you for your support and encouragement.

#274: Close Races and Third Parties

This is mark Joseph “young” blog entry #274, on the subject of Close Races and Third Parties.

The results are in for New Jersey’s third congressional district, and Democrat Andrew Kim (pictured) has ousted Republican incumbent Tom MacArthur in a very tight race.  When the dust settled, Kim had 49.9% of the votes cast, to MacArthur’s 48.8%.  That makes eleven of New Jersey’s twelve congressional seats Democratic.  We reported on the race in web log post #270:  New Jersey’s 2018 Election Ballot, and on the results otherwise in web log post #271:  New Jersey’s 2018 Election Results.

Neither candidate had a majority; Kim was elected on what is called a plurality, the largest portion of the vote when no candidate has more than fifty percent.  It happens when there are third party candidates who draw votes away from the major parties.

In this case, it was Constitution Party candidate Lawrence Berlinski, Jr. who took 1.3% of the vote.  Obviously people who vote for the Constitution party are not happy with either of the major parties.  However, the Constitution party is generally conservative, more opposed to the Democrats than to the Republicans, and if everyone who voted for Berelinski had instead voted for Republican MacArthur, MacArthur would have retained his seat–which might have been a preferred outcome for those three thousand eight hundred forty-six voters.  In essence, they voted against the viable candidate they would have preferred, and so gave the election to the candidate they would have opposed.

Interestingly, in Maine a system has been created to prevent this sort of outcome, and it appears to have cost incumbent Republican Congressman Bruce Poliquin his seat to Democrat Jared Golden.  Maine’s experiment was to have voters not vote for one candidate but rank all the candidates from most preferred to least preferred.  Under the old system, the system in place everywhere else in the country, it appears that Poliquin would have won with a plurality of 46.3% of the votes, against Golden with 45.6%.  The remaining roughly 8% of the vote was split between two independent candidates (no party affiliations indicated for either).  However, since no candidate had a clear majority, the new Ranked Choice Voting (RCV) method was activated.  By this method all first-choice votes for the candidate with fewest are reassigned to their second choice, and then if there is still no majority winner the next candidate is so eliminated, until one candidate has the majority (50% plus one)–a perfect tie being statistically improbable.  That was done in this race, and the outcome is that Golden defeated Poliquin by about three thousand votes, giving him 50.5% against 49.5% of the vote.

Prior to the election Poliquin had filed suit claiming the system was unconstitutional.  A federal judge declined to rule on the matter, probably because until the election had been held it could not be known whether the change in system would impact the outcome, so the suit is still pending.

It is a very interesting notion which if adopted broadly would be a shot in the arm for third parties.  As we see with the Kim/MacArthur race, third parties generally are a drain on the candidate who is closest in ideology to the third party, and thus voting for a third party candidate is effectively voting against the major party you would prefer.  Had ranked choice voting been used in the third district, and most of those voting for the Constitution Party had listed MacArthur as their second choice, he would have won.  It would mean that voters could vote for third party candidates as their first choice without effectively voting against the major party candidate they would prefer, and as more people recognized this third parties would get more votes, and it would be easier for the balance to tip to push one of the third parties ahead of one of the current major parties.

I don’t know that the major parties would want that, though, so I don’t expect the Maine experiment to spread too quickly.  Besides, we are still waiting for the courts to rule on the question of whether “one person one vote” means that voters can’t list a second choice.

#271: New Jersey’s 2018 Election Results

This is mark Joseph “young” blog entry #271, on the subject of New Jersey’s 2018 Election Results.

We’ll keep this short.  More information can be found in the previous post #270:  New Jersey’s 2018 Election Ballot.  At the polling place yesterday I was told informally that voter turnout was well above norms for off-year elections (years in which there is not a Presidential race at stake).  The traditional political wisdom is that high voter turnout favors Democrats, and that appears to be the case this year, as the Democratic party has virtually taken over New Jersey on the Federal level.

Democratic Senator Bob Menendez

Public Question #1, School Projects Bond (2018) passed marginally, allowing the state to borrow another half (B)billion dollars for schools as career and technical grants and school security projects, college career and technical education grants, and something labeled “school water infrastructure grants”.  The vote was fairly close, with about 52% of votes supporting it.

Our Democratic senior Senator Bob Menendez held his seat, with a fraction over 50% of the vote.  The Republican Bob Hugin trailed at about 46%, the rest of the vote split between four other candidates, the Libertarian and the Green getting about seven tenths of one percent of the vote each, the two independents getting half a percent each.

Looking at the House of Representatives, district by district:

  1. Democrat Donald Norcross easily kept his seat with about 60% of the vote.
  2. Democrat Jeff Van Drew took the seat vacated by retiring Republican Frank Lobiondo, with about 52% of the vote.
  3. The Third Congressional District was still undecided as of this writing, Republican incumbent Tom MacArthur holding 49.8% of the votes counted against Democrat Andrew Kim, with 48.9%, and 1.1% of precincts not yet reported.
  4. Long-time Republican Representative Chris Smith easily retained his seat with nearly 64% of the vote.
  5. Democrat Josh Gottheimer retained his seat with a close 51%.
  6. Democrat Frank Pallone easily held his seat with about 63% of the vote.
  7. With barely over 50% of the vote Democrat Tom Malinowski took the seat from incumbent Republican Leonard Lance, with about 48%.
  8. Democratic incumbent Albio Sires kept his seat easily with about 78% of the vote.
  9. Democrat Bill Pascrell also easily retained his seat with 70% of the vote.
  10. Democratic incumbent Donald Payne, Jr. also kept his seat with a very strong 87%.
  11. The seat vacated by Republican Rodney Frelinghuysen went to Democrat Mikie Sherrill, with about 57% of the vote.
  12. Democrat Bonnie Watson Coleman took 66% of the vote to retain her seat.

It appears that New Jersey has moved from being about as neutral a state as you can have to being solidly Democratic–our governor is a Democrat and both of our state legislative houses are controlled by Democrats, both of our Senators are Democrats, and as it stands at this moment ten out of our twelve seats in the House of Representatives are held by Democrats.  Republican Representative Chris Smith continues as the longest-seated of our officials, adding two more years to his thirty-eight year streak in the fourth district, and although officially it has not been settled Republican Tom MacArthur has a slim lead to retain his seat in the third district with one percent of the precincts still unreported.

I’ll try to add a comment here when that race is settled.

Nationally, as you probably know, the Republicans gained a few seats in the Senate, but the Democrats took the House.  This is probably a good outcome, generally, for the nation.  The Senate has advice and consent for all Presidential appointments, including judicial appointments, and Republican control there means that more conservative judges will be approved to balance the spate of liberal judges appointed during the Obama years, improving the balance in the judiciary.  Meanwhile, since all spending bills must originate in the House, Republican policy can’t run wild, as compromise will be necessary for the government to continue functioning in the future.

So no one got everything he wanted this year, but no one should.

#261: A Small Victory for Pro-Life Advocates

This is mark Joseph “young” blog entry #261, on the subject of A Small Victory for Pro-Life Advocates.

The United States Supreme Court has ruled in National Institute of Family and Life Advocates v. Becerra 585 U. S. ____ (2018), in favor of pro-life Crisis Pregnancy Centers who, under the California Reproductive Freedom, Accountability, Comprehensive Care, and Transparency Act (FACT Act), were required to communicate to their clients that the State of California was ready to assist them in obtaining abortions.

It should be understood up front that the Court did not actually rule that the FACT Act was unconstitutional.  That was technically not what was on appeal.  The National Institute for Family and Life Advocates, NIFLA, had raised a challenge to the law and requested an injunction preventing its enforcement while the case was being heard.  The lower courts ruled that NIFLA probably could not win and so was not entitled to an injunction; the Supreme Court granted the injunction, stating that NIFLA probably could win on the merits and so enforcement should be stayed until the case had been heard.

Justice Thomas wrote the opinion of the court, joined by Chief Justice Roberts and Justices Kennedy, Alito, and Gorsuch.  He observed that the law appeared to be targeted specifically at clinics and similar services which focused on alternatives to abortion and attempted to encourage women to give birth to their babies, often providing prenatal and post-natal care for such mothers.  Clinics run by licensed professionals or run under a state license were required to deliver a notice consisting, in English, of forty-two words (one hyphenated) plus a phone number (top notice in the picture), informing clients that the State of California was ready to help them kill their unborn babies if they so wished.  This notice had to be prominently posted in large letters within the facility, included as a full-sized document with any papers given to clients, and included in any advertising.  Further, this notice had to be delivered in every language recognized by the local county as a major spoken language within the county–at least English and Spanish, and in Los Angeles County thirteen distinct languages.

Thomas observed that this was requiring an organization whose very purpose was to reduce the number of abortions to communicate the reverse message, that abortions were readily available elsewhere.  He further observed that this was a controversial message, and that the weight of the requirement was excessive–if such a licensed organization decided to post a billboard in Los Angeles County that said “Choose Life” with a phone number, that billboard would also have to have that forty-two word notice in thirteen languages in the same sized print as the core message, overwhelming the intended message with what amounts to paid advertising for their competition.

It would be something like requiring all politicians of any party to include in their paid advertising equal space promoting each other candidate in the same race.

Facilities serving the same purpose that were not licensed or run by licensed personnel were required similarly to post a shorter notice, again in all the same ways and places, stating that California has not licensed them as medical care providers.  Again, it was to be posted prominently, included in all advertising, and given to clients in printed form.  Further, the legislation was worded such that the requirement would only apply to pro-life organizations.

So egregious was this animosity toward pro-life organizations that Justice Kennedy wrote a concurring opinion, joined by Chief Justice Roberts and Justices Alito and Gorsuch, attacking the “viewpoint bias” of the law.  The legislative history made it clear that legislators were attempting to force opponents of abortion to publish material contrary to their views.  He observed that the official history included a self-congratulatory statement that the Act was part of California’s legacy of “forward thinking”, and then wrote,

[I]t is not forward thinking to force individuals to “be an instrument for fostering public adherence to an ideological point of view [they] fin[d] unacceptable.” Wooley v. Maynard, 430 U. S. 705, 715 (1977).

That amounts to religious/political discrimination, and again a violation of the First Amendment.

*****

Writing the dissent, and joined by Justices Ginsburg, Sotomayor, and Kagan, Justice Breyer makes several significant points.

The fact is we regularly require organizations to post informational signs at least obliquely relevant to their purpose.  One example leaps to mind.  A few years back New Jersey had a problem, that several newborn babies were rescued from public trash cans because young parents did want them and could not care for them.  Today, all emergency rooms and many other care clinics have signs on the walls informing anyone who enters the building that there are safe drop points where you can abandon a child no questions asked.  Obviously that notice is irrelevant to the majority of clients in those facilities; just as obviously such locations are good choices for reaching persons who need that information.  We might debate whether such a program fosters teen-aged irresponsibility (a mother who would never dream of putting her baby in a trash bin might abandon it at a safe drop point if made aware of such, and so free herself of the task of caring for the child), but creating and promoting the option saves lives.  Other notifications are posted; the lawfully-required notices on tobacco products and in tobacco ads are clearly counter to the interests of tobacco companies.

However, Breyer attempts to sweep away the aspect that these laws were carefully tailored to target pro-life organizations.  He tells us that organizations that are not pro-life don’t need to be required to tell women about the availability of abortions, as they are probably already doing so.  That’s hardly a sufficient basis for a distinction regarding compelled speech.

For the moment, all that NIFLA has won is a delay, that the law cannot be enforced until the case has been heard.  However, the majority opinion and the significant concurrence are filled with good reasons for the law to be overturned, and as the case returns to the lower courts NIFLA has a good chance winning, probably without another Supreme Court intervention.

#259: Saying No to Public Employee Union Agency Fees

This is mark Joseph “young” blog entry #259, on the subject of Saying No to Public Employee Union Agency Fees.

Four decades ago the Supreme Court handed down a decision in a case entitled Abood v. Detroit Bd. of Ed., 431 U. S. 209 (1977).  In it the Court ruled that it was not a violation of constitutional rights for unions representing public employees to charge what was called an “agency fee” to all public employees who were not members of the authorized public employees’ union.  Since the law required that the union represent such non-members equally with members (that is, same pay, benefits, and protections), the rule was intended to prevent “free riders” who got the benefits of union representation, union pay and benefits, without paying for it.

This year, in Mark Janus v. American Federation of State, County, and Municipal Employees, Council 31, et al., 585 U. S. ____ (2018) they announced that they were wrong, and overturned the precedent.

This is not entirely unknown, but it is rare.  The Court has a rule it calls a doctrine and names stare decisis, which in essence means the decision stands.  It happens sometimes, but usually the Court puts a lot of work into making it possible for any previous decision to still be enforceable in narrower circumstances and new rules to apply to most cases.  That did not happen this time.  Janus overturned Aboud.  According to the Court, requiring persons who do not agree with union policies to pay to support the union is a First Amendment violation, because it compels such persons to support speech with which they disagree.

To begin to understand this, we need to recall that money is fungible–something we discussed in our second web log entry nearly five years ago, and which the majority opinion mentions.  To recall the example, if I have a dollar and I’m going to go to the corner store to buy candy and comic books, it’s likely that I’ll wind up with fifty cents’ worth of each.  If, though, my mother gives me another dollar, and tells me that I am not to spend any of the money she gives me on candy, I will spend her dollar on comic books and my dollar on candy, and now I have twice as much candy because she paid for the comic books enabling me to rebudget my own funds to cover more candy.  In much the same way, the money given by non-members to cover the “costs of negotiating”, even if our bookkeeper tells us that all of it went to that purpose, probably frees funds to go for other purposes we might not approve.

Abood was not so naive as that.  It required unions to do an accounting, separating “chargeable” from “non-chargeable” costs, and bill non-members only for their share of the “chargeable” costs.  Political spending was to be “non-chargeable” and anything that was part of enabling the union to negotiate was “chargeable”.  In practice, however, “non-chargeable” had come to mean contributions to political candidates, and anything else was lumped into “chargeable”.  In the present case, the union billed non-members for costs ranging from lobbying for legislation to paying for the member convention (which presumably non-members did not attend).  Non-members were entitled to sue if they believed something non-chargeable had been included, but the summaries provided by the unions were so lacking in detail that it would require thousands of dollars in attorney and accountant fees just to determine what was and was not charged.

More fundamentally, though, Janus argued that the very act of negotiating with the government for pay and benefits is itself a fundamentally political action and thus a form of political speech.  Janus says that he is not of the opinion that the State of Illinois where he works should raise salaries for unionized public employees; the state has the lowest credit rating of any state in history because of its overspending and indebtedness.  Janus opposes the union’s argument that the state needs to raise taxes to increase salaries and benefits for state workers.  He thus highlights the fact that asking for money from the state is fundamentally political speech, and being required to subsidize the bargaining process makes him party to that speech against his will.

The Court agreed.

For what it’s worth, almost immediately upon the release of the opinion, many liberal lobbying groups sent emergency funding requests to supporters, claiming that they will have to make up for the shortfall they expect to incur since public sector unions will have less money to give them–this according to the New York Times (as cited by Investors.com).  It is of course possible that these groups are lying to their supporters, that in fact the unions have not been misusing non-member money to support political causes and there will be no reduction in such support, but the fear of it makes a good campaign motivator to bring in more.  Preferring to think better of them, we are forced to face the possibility that indeed the union has been using non-member agency fee money to support political causes and lying about it in their accounting (or perhaps believing that they have very little chance of being taken to court over it and at least a fair chance of winning the case if they are).  So one way or another, the liberals appear in a bad light:  either they have been lying about the inappropriate use of non-member money to support political objectives, or they are lying now about anticipating a reduction in the money available for such objectives.

Or perhaps they’re expecting to lose revenue due to a mass exodus of union members.  Why, though, would that be?  If people believe in the union, would they not want to support the union and be part of the union process?  Or is it the case that vast numbers of public employee union members feel coerced into membership because it has cost nearly as much not to belong as it did to belong?

Or maybe they’re just confused.

It has also been reported that a Democratic New York State Senator is proposing legislation to end-run this by permitting the public employee unions to include in negotiations payment from the state to cover the costs of representing non-members.  Seriously, if it is an impingement on free speech to require non-member public employees to pay costs of the union which benefits them in negotiations, it must be far more so to require it of taxpayers whose only connection to this is that they have to pay the amount given to the union.  They seem confused to me.

Justice Kagan’s dissent culminates in an insistence that Abood should stand primarily because of stare decisis, and because of the extensive reliance on the decision.  She notes that at least twenty-two states are going to have to legislate new laws regarding their public service unions, and thousands of contracts relying on agency fees will have to be renegotiated.

Before she reaches that point, she in essence reargues Abood, asserting that it is good law well founded and that the majority overturned it merely because the majority didn’t like it.

The fundamental point of Abood was always that it is to the benefit of the government’s ability to manage its employees to have them represented by exclusive negotiators, unions, which are well-funded and independent of government.  Agency fees were considered a reasonable way to achieve that.  She further argues that (application aside) the Abood distinction between political spending and costs of bargaining and contract management is a clear one.  She objects outright to the notion that the question of whether governments should give their public employees more in salary and benefits is a political one within the context of the employer-employee relationship, because it is essential to that relationship.  She further forecasts a gloomy future in which the number of “free riders” increases as union members recognize how much they can save by leaving the union coupled with the fact that the union must continue to represent them equally whether they are members or not.

Wait a minute.  Did I already say that?

It is not at all clear that unions will be unable to function without the agency fee support.  It is certainly the case that unions have abused the “chargeable/non-chargeable” distinction of Abood (is it really credible that three quarters of the cost of union membership goes exclusively to union contract negotiation and administration costs?).  It is also the case that public sector unions appear to operate successfully in states which do not permit agency fees.

I am not persuaded that this will cause all the chaos predicted.  It does not change the exclusive negotiator rule, that is, if you are not a union member but are in a public employee union shop the union is still your exclusive representative for negotiations.  Nor will it completely eliminate union membership, since one must be a union member to have any impact on policy.  It will weaken unions some; they will have less money to spend on their political pursuits.  However, there is a serious issue concerning whether public employee unions ought to be involved in political pursuits at all, and if we believe that the unions as a whole have a right to speak on issues of public concern, we must also believe that public employees individually have the right not to support those entities with which they disagree.

#255: On Sveen: Divorcees, Check Your Beneficiaries

This is mark Joseph “young” blog entry #255, on the subject of On Sveen:  Divorcees, Check Your Beneficiaries.

It’s a good thing it’s summertime, because the Supreme Court is taking us back to Minnesota, this time for Sveen et al. v. Melin and the first look at the Contracts Clause of the Constitution in a quarter of a century.  Sound dull and esoteric?  Well, no–it cost Kaye Melin a substantial amount of money, and might similarly impact an unknown number of divorcees throughout the country.  As Ambrose Bierce once said, “Death is not the end; there remains the litigation over the estate.”

Let’s start with the facts.

In 1997 Mark Sveen, father of two children by a previous marriage, married Kaye Melin.  The next year he bought a life insurance policy, naming her as beneficiary and his two children as contingent beneficiaries.  The ordinary expectation with life insurance is that it is a contract, that upon the death of the insured a sum of money will be paid to the primary beneficiary or beneficiaries, but in the event that the primary beneficiary predeceases the insured the money will be paid to the contingent beneficiary or beneficiaries; if they have also died, the money is paid into the estate to be distributed in accordance with the will or by the laws applying to intestate estates.

In 2007 the couple divorced, apparently amicably.

In 2011 Mark Sveen died.

Apparently neither of them had been made aware that in 2002 the Minnesota legislature passed a law stating that when a couple divorces each divorced spouse is automatically removed as beneficiary from any legal documents of the other.  It was apparently a surprise to Melin.  She claims that she and Sveen specifically left her as beneficiary on that policy partly because they were still friends and partly because the payments were made from their joint account.  However, the stepchildren claimed the money was theirs, based on this law.

The trial court agreed with the stepchildren, the Circuit Court overturned in favor of the divorced spouse, and the Supreme Court has just restored the original judgment.  Women’s groups are aghast, and Melin appears to have been cheated of her reasonably expected benefit by the stroke of a legislative pen of which she had no notice.

Justice Gorsuch is on the side of the women.  He says that there is absolutely no way that the application of this law in this situation can survive even modest scrutiny under the Contracts Clause of the United States Constitution.

The Contracts Clause appears in Article I Section 10 Clause 1.  It reads “No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.”  The critical point is the “Law impairing the Obligation of Contracts”.  Everyone agrees that this was because early state legislatures were often passing private legislation excusing influential citizens of debts to foreign creditors, and the Federal government (particularly the Federalist party) saw the danger that such unilateral cancelations of loan contracts would impede much-needed foreign capital investment in the new nation.

Gorsuch agrees that it would be possible for Minnesota to pass such a law which going forward impacted future insurance contracts.  That is, once the law is on the books it is presumed that anyone buying a life insurance contract is made aware that divorce will alter the beneficiary status, because the law exists.  However, the point of the Contracts Clause is to prevent states from altering contracts retroactively–that is, whatever Sveen believed he was contracting at the time he purchased the policy is what Sveen should get, and that means that since he named Melin as beneficiary and had no notice at the time that this would be changed without his knowledge or explicit consent, he should get what the contract says, and that means his primary beneficiary Melin should receive the proceeds.

Justice Kagan, writing for the 8-member majority, disagrees.  She says that the State is simply creating by law what it perceives to be the normal expectation of divorcees, that if they have failed to remove their divorced spouse as beneficiary on their policies it is undoubtedly an oversight.  Melin’s claims to the contrary in this case are immaterial, and the law certainly permitted Sveen to contact his insurer and reinstate his divorced wife as beneficiary, so it was a simple matter to correct.  Indeed, had the life insurance policy been included in the divorce settlement decree, that would have overridden the effect of the law.  Further, Sveen has lost nothing because the insurance policy was paid to his contingent beneficiaries; he has gotten what he wanted.  No significant term of the policy was altered.

If that sounds like garbage to you, it did to Gorsuch, too.  Even the majority admits that the beneficiary is a significant part of the contract, and Gorsuch would say the most significant part.  There was evidence that Sveen did not “change” the policy to “restore” the initial primary beneficiary because he was unaware that any such change was necessary–his copies named Melin, and Melin’s testimony suggests that this was what he wanted.  The notion that failing to remove a divorced spouse as beneficiary would be a simple oversight but that failing to restore such a spouse to that position without any notice that it had changed could not possibly be an oversight is completely incomprehensible.

However, even the dissent agrees that laws such as the one in Minnesota can affect subsequently purchased policies and trusts and similar financial instruments, and the majority has stated that they can be retroactive.  Quite a few states have such laws, which are an ordinary part of state regulation of the interpretation of the intent of a decedent where any point is unclear.

Thus the short version is this warning:  if you have gotten divorced and you have any legal instruments by which one spouse has named the other as beneficiary, and these have not been specifically assigned in the divorce decree, check to be sure that these will be treated according to your expectations and not cancelled by a state law of which you are unaware which is attempting to enforce what the legislature presumes is your actual intent despite your contractual statement otherwise.

#253: Political Messages at Polling Places

This is mark Joseph “young” blog entry #253, on the subject of Political Messages at Polling Places.

You may have heard that the Supreme Court, in a 7-2 decision, struck down Minnesota’s law forbidding the wearing of anything “political” when you go to the polling place to vote.

One of the appellants was turned away from voting for wearing a shirt like this.

The case is Minnesota Voters Alliance et all. v. Mansky et al., and continuing his interest in leaving a mark on I Amendment law, Chief Justice John Roberts wrote the majority opinion.  The law is a fairly common sort, the court identifying thirty-six other states and the District of Columbia as having similar laws.  In New Jersey we have N. J. Stat. Ann. §19:34–19 Insignia at polls

19:34-19. No person shall display, sell, give or provide any political badge, button or other insignia to be worn at or within one hundred feet of the polls or within the polling place or room, on any primary, general or special election day or on any commission government election day, except the badge furnished by the county board as herein provided.

A person violating any of the provisions of this section shall be guilty of a disorderly persons offense.

It does not appear that the New Jersey law would withstand the scrutiny of this case, because of the problem the majority had with the use of the word “political”.  That word, it argued, was too broad; and when they questioned the State’s attorney at oral argument it became more problematic.  An NRA shirt would always be banned, but a Rainbow flag shirt would only be banned if there were an issue of gay rights on the ballot.  A shirt displaying the text of the I Amendment (freedom of speech, press, religion, and association) would always be permissible, but one with the text of the II Amendment (right to bear arms) would always be excluded.  Guidelines issued by the State to polling place judges did not, in the Court’s view, clarify the matter.

Justice Sotomayer dissented, joined by Justice Breyer.  Their objection could be summarized as stating that the decision is premature, that they should not have decided the case but deferred it to the Minnesota State Supreme Court.  The majority claimed that they could not imagine any interpretation of the law as written that would pass muster with its concerns, but the dissent said that in matters of state law that have not yet been interpreted by the state, it is if not normal at least common for the Supreme Court to ask the State’s highest court to provide its understanding of the law, and then determine whether that understanding passes constitutional muster.  This law has been in place for over a century, dating back to the end of the nineteenth century when polling places were often filled with hecklers and vote privacy was minimal.  Until this case (seven years ago) it has never been challenged and no one had been prosecuted for violating it, nor had anyone been refused the right to vote.  It probably has been applied reasonably, even if the Supreme Court doesn’t know how, and an opinion from the State courts would have been an appropriate step before striking down such a long-established statute.

There’s a solid argument there, but the majority apparently didn’t believe the State court could provide a viable response and didn’t wish to delay the matter.

Thus there is a good chance that whatever rule your state has regarding wearing political messages to the polling place has just been ruled unconstitutional.