The Pagan Science Monitor

Religious homophobes v. liberal gov't.: Case dismissed

San Francisco board of supervisors passed a resolution last March criticizing a Vatican directive forbidding Catholic Charities from placing children in need of adoption with gay couples.
Catholic organization sued. Federal judge dismissed.
We don't normally follow district court activity outside the Seventh circuit, so we would have missed this one if not for Prof. Arthur Leonard, whose law blog is Leonard Link.
Catholic League for Religious & Civil Liberties v. City & County of San Francisco (N.Dist.Cal. Nov. 30, 2006) began like this:
The new pope gave his old job, enforcer of conformity with dogma (formerly known as the Inquisition -- not making that up), to the former archbishop of San Francisco, who got promoted to cardinal. The cardinal ordered Catholic Charities not to let gay couples adopt. When the supervisors adopted their resolution, calling the order "discriminatory, defamatory, and hateful," the Catholic organization brought suit in Federal court, alleging violation of the Establishment Clause.
Judge Marilyn Hall Patel (of Napster-case and Korematsu fame) kicked the case.
T.P.S.M. doesn't have Westlaw, and the opinion can't be found on the district court website, but this seems to be the gist (again, thanks to Prof. Leonard & corporate media):
*There's a First-Amendment issue, but not the establishment clause; the resolution amounts to free speech by duly-elected office-holders;
*The resolution does not unconstitutionally take sides in a religious controversy, but has a primarily secular purpose;
*The resolution is a one-shot deal, not the establishment of a regulatory regime intruding into religion.

Tags: Church and state, law, policy, Constitutional law, First Amendment, Establishment Clause, Catholicism, faith, sacredness, skepticism, homophobia, LGBT, gay, lesbian, queer, gay adoption, Christian right.    

Quotation du jour

...and forecast of Supreme Court's decision in Monday's affirmative action cases:

The Supreme Court will say that diversity programs are unconstitutional. Justice Kennedy is the swing vote. He's a weird bird on race issues -- a few years back he made a passionate speech to the ABA in which he railed against the nation's harsh criminal justice system, excessive sentences, and racial disparities. On the other hand, he voted against the Michigan affirmative action programs. It's interesting because lots of people who see racial inequalities in traditional civil rights areas like education and employment don't see them in criminal justice -- Kennedy is just the opposite. His comments in yesterday's oral arguments, as well as his votes in previous cases, suggest he will vote against African-American and Latino interests, as identified by traditional civil rights organizations.

-- Prof. Paul Butler on Blackprof.com today

Tags: Law, policy, affirmative action, Supreme Court, race, racism, anti-racism, white supremacy, Seattle Open Choice Program, Seattle public schools, Parents Involved v. Seattle School Dist. No. 1, Louisville public schools, Meredith v. Jefferson County Board of Education, Brown v. Board of Education. 

 

Check out the 7th circuit blog

The Federal defenders have a blawg that digests recent Seventh circuit decisions. Check it out.

It's legal to arrest the wrong guy, put the cuffs on too tight, & hold him for 2 days

by Scotus
No reasonable jury could find that a Chicago police officer's actions were objectively unreasonable. That was the decision of the district court, affirmed today by the Seventh circuit, in the civil rights suit of a man who -- everyone admits -- was wrongly arrested.
The "reasonable jury" doesn't actually exist: In granting summary judgment to the city and the officer in Tibbs v. City of Chicago, the district court ruled that a jury would never hear the case.
Ronald A. Tibbs, 45 years old in 2001, appeared to fit a general description of a suspicious Black male in the neighborhood of a Chicago Housing Authority project that the appellate opinion doesn't name (it's probably Abla Homes), but describes as high crime.
Chicago police officers stopped him and I.D.'d him. Running a warrant check, they found an old traffic warrant for a Ronald L. Tibbs, who would have been six years older. Prob'ly the same guy, they decided, so they slapped on the cuffs and brought him in.
In the police car, and again at the station, Tibbs complained that the cuffs were too tight, but couldn't get anyone to loosen them.
(Proper procedure when handcuffing an arrested person is to do a "finger test" -- the officer applying the handcuffs inserts an index finger between the cuff and the person's wrist. If you can't get a finger in there, the cuffs are too tight.)
After a couple days in the hooskow, Tibbs managed to persuade a judge he was who he was, not the Tibbs with the open warrant. He sued for false arrest, false imprisonment, and excessive use of force.
In kicking his case, the court relies on well-settled case law that allows cops to collar the wrong guy.
Hill v. California, 401 U.S. 797 (1971) was the Supreme Court case that gave this script to the cops to read: "We had probable cause to arrest A. We arrested B. Turns out B wasn't A. We really, really thought B was A." Following the script, the judge then says: "Okeedokee."
Next comes the question of keeping the wrong guy locked up. Baker v. McCollan, 443 U.S. 137 (1979) was the Supreme Court case that said, Once B is arrested on a warrant meant for A, the authorities holding B don't have to think about all this A, B nonsense. They just have to hang onto B. Okeedokee.
Finally, the too-tight handcuffs. Graham v. Connor, 490 U.S. 386, was the Supreme Court case that applied what's called the "objective reasonableness standard" to excessive force lawsuits. Scotus will gnaw on the objective reasonableness bone another time. Suffice to say, in this context, Graham basically allows Federal judges to throw out cases rather than let them go to juries.
Remind Scotus again what "activism" means?

Tags: Seventh circuit, litigation, police accountability, police misconduct, police brutality, law, policy, copwatch, Chicago, Chicago police, law enforcement, Chicago Housing Authority, Alba Homes,

South African gay marriage law

...is parsed at the legal blog of NYU's Prof. Arthur Leonard.
His conclusions:
(*) Okay to call it a marriage bill (even though it calls itself a Civil Union Bill) because it allows couples to determine whether their lawful partnership will be called a marriage or a civil union.
(*) Allows would-be officiants -- both religious and secular -- to refuse to perform any ceremony for any reason.
(*) Other ambiguous language guarantees litigation.
(*) Nevertheless:

...I think it is accurate to state now that upon enactment, South Africa will join the Netherlands, Belgium, Canada, and Spain as the only countries that allow same-sex couples to marry in the true sense of the word....

Tags: Gay marriage, LGBT.

7th Circuit decides Linux case

...or, Scotus chews on a red hat.
....Or, would-be entrepreneur wanted to "turn Sherman Act on its head."
....Or, normally-conservative appellate court upholds Open Source users' right to keep getting free stuff.
You decide what you want to file this under. The opinion is here.
The case is Wallace v. IBM, Red Hat Inc., & Novell Inc., No. 06-2454; decided Nov. 9, 2006; appeal from S.Dist.In., No. 1:05-cv-678.
An Indiana entrepreneur sued IBM, Red Hat, and Novell on the claim that they, the Free Software Foundation, and open-source users are engaged in a conspiracy that eliminates competition. The district court dismissed and the 7th circuit affirms.
Scotus's favorite bite:

...this opinion...is not covered by copyright and may be downloaded from the court's website and copied without charge.

That, in the context of the court's argument that petitioner, a would-be software producer, cannot make a predatory-pricing claim against Open Source software: It's free, it'll always be free, its distributors aren't ever going to recoup their money.
As the predatory-pricing claim fails, so does petitioner's suit, as anti-trust law is there to protect, not producers, but consumers.
The opinion is short and fun to read. It comes equipped with a breezy summary of Linux and the GNU General Public License.

Tags: Linux, open source, Seventh Circuit, intellectual property, law,  policy.

Marjorie Cohn on Rumsfeld's war crimes

President of National Lawyers Guild calls for Rumsfeld's prosecution.
On Jurist, the Pitt Law blog, Prof. Marjorie Cohn outlines the reasons and the method.
The reasons:
*Responsibility for engineering a war of aggression;
*Command responsibility for extra-judicial executions during the war;
*Sanctioning torture and cruel, inhuman, and degrading treatment of prisoners;
The method:
*On Tuesday, November 14, the NLG and the Center for Constitutional Rights will ask the German federal prosecutor to initiate an investigation.
Scotus says: This approach will take Scotus a few hours to get his paws around. Scotus will be back with more.

Tags: Rumsfeld, war crimes, Iraq withdrawal, impeachment, National Lawyers Guild, Center for Constitutional Rights.

 

War crimes trial for Rumsfeld?

by Scotus
Woof! Get started reading about this at TalkLeft.
Apparently, Marjorie Cohn (president of the National Lawyers Guild) has an article on The Jurist, the University of Pittsburgh School of Law site, but the site seems to be down tonight.
Scotus will try again in the morning.

Tags: Rumsfeld, war crimes, Iraq withdrawal, impeachment.

Guest blogger comments on Scotus

So you have a dog named Scotus, eh? And the dog does your analysis of judicial opinions. Hmm. I have a bone to pick with you.
Scotus was the Latin word used to describe the people (people, mind you!) of what's now called Ireland and Scotland. The Romans were correct to use one word for both, because we are the same tribe (the same clan, MacMil, which emigrated from Galicia to Ireland, then Scotland).
The Romans never did defeat us Irish. Their name for Ireland, Hibernia ("winter quarters") was curious, since every Roman raiding party to Ireland was simply never heard from again -- some vacation.
But the poor Scots had the misfortune of being on the same island as the Anglo-Saxons, who came later. Unlike us, the Scots were defeated. So, they became engineers and Protestants, stopped blending their whisky, and pretended they were different from us.
They aren't. Philologists call our common language "Irish." The Scots prefer "Gaelic" (from Galicia in Spain), which recognizes the common bond, but distances us from them.
Immigration went both ways. Those Orangemen in occupied Ireland are not English. They're Scots, which means they're Irish. Is it any wonder they're so cussedly stubborn? Only a dispute within a clan could get that nasty and protracted.
But anyway, as far as I'm concerned, calling Scotus, the dog that does the heavy lifting on this blog's judicial analysis, a "Scottish" terrier is dirty pool. Billiards. Snooker.
by an Irish Republican.
No, not THAT kind of Republican!

Lewis v. Harris, cont'd., conclusion

Check out Robin Lenhardt on Blackprof for the last word on Lewis.
Scotus understands he will be sent to the dog house for gnawing so obsessively on this one decision by a state supreme court.
Scotus cannot let go just yet.
Prof. Lendardt:
*Argues the fundamental similarity of the majority's holding in Lewis and the notorious antimiscegenation laws of Jim Crow days;
*Forecasts "the creation of a separate-but-equal system for marriage" in New Jersey, if the legislature follows the path mapped out by the majority, and implicitly critiques Connecticut's and Vermont's "2-tiered" systems for marriage benefits;
*De-bunks the specious "welfare of children" reasoning of such decisions as last summer's Hernandez v. Robles, in which the New York Court of Appeals, the state's highest court, held that the state constitution didn't require same-sex marriages;
* Praises the now-retired chief justice, whom Scotus blogged about last week, for arguing in her concurring and dissenting opinion that the majority had authorized a view of same-sex commitments as "lesser relationships" which "cannot have the name of marriage."
Scotus knows he will not get a treat at least until he blogs about what the 11th Circuit did in the Cuba 5 case.
Scotus also says look at The Continental Op's "Bong Hits 4 Jesus" - on whether the S.Ct. will grant cert. in Juneau School Bd. v. Frederick. Co-starring Ken Starr!