"Court keeps alive inmate's quest for pork feast."

Headline at the National Law Journal makes the "quest" sound more absurd than it is. The prisoner, Derek Kramer, is an Odinist and he's suing in pursuit of his rights under the Free Exercise Clause and the Religious Land Use and Institutionalized Persons Act.

From the 7th Circuit court's opinion (PDF):

Odinism is a polytheistic religion, which was practiced for millennia in northern Europe before the rise of Christianity and has been revived in recent decades. The practice of Odinism includes group worship ceremonies. Pork is a sacred food to Odinists....

Specifically, Kramer asked for a feast on December 21st for the “High Feast of Yule” and “further requested that HAM/PORK be included in with the FEAST MEAL.”...

Kramer had a larger problem with the group worship at the Green Bay Correctional Institution: The Department of Corrections lumps the "Pagan" religions together for group worship purposes, and he objected to a specifically Wiccan ritual at the service. The demand for an annual pork feast was part of a larger effort to separate the Odinists from the Wiccans.

Kramer's loss on everything but the pork feast (which he hasn't yet won) is based on procedural matters that are probably only interesting to lawyers — unless you know how to be interested in the way procedure can operate to undermine rights.

"Will a Mormon president treat constitutional clauses as divine injunctions?"

"If so, what grounds will we non-Mormons have for interpreting with secular arguments what is presented as God’s will? For that matter, what right will the Supreme Court have to treat the document as anything less than a divinely inspired covenant? Does the First Amendment actually separate church and state, or does that not count, since it is merely an amendment, not the original word of God? But why, then, did a mere amendment change the first inspiration that made slaves less than full persons?"

Garry Wills, he's not anti-Mormon. He just has questions. A lot of questions. Can't blame a man for asking questions, can you? I'd say you can. This is an effort to smear Romney with some really silly insinuations. Why would the fact that the President is a Mormon — even assuming Wills states the belief correctly and Romney himself holds that belief — affect what the Constitution means, what non-Mormons will be able to think about what it means, and how the Supreme Court would interpret it?

In any case, isn't the belief that the framers of the Constitution were divinely inspired fairly common? Where does it get you... other than to profound reverence and dedication? What's wrong with that? The President is supposed to be dedicated to the Constitution. The original Constitution is structured around the existing institution of slavery, but what's the point of bringing that up? Wills is asking questions, not making arguments, which let's him be very slippery. He knows that the part of the Constitution that liberals care about is all in the amendments, and perhaps he'd like to separate the good part of the Constitution — the amendments — from the bad part — the part with slavery... and all the structural safeguards that conservatives would like to see enforced.

"If your Big Mac is going to cost about $100 and your Bug Mac is going to cost only $4, people will change to a Bug Mac."

Says Arnold van Huis, the world's biggest expert on entomophagy (the eating of insects).

He believes the rising price of meat will help change diets.

Help? Why is NPR using the word "help" there?

Van Huis says the challenge is to make it delicious. That's where Marian Peters comes in. For years, as secretary of the Dutch insect breeders association Venik, she's been active in bringing edible insects to consumers' tables. And Peters says the first commercially available bug sandwich will be out soon — a wrap filled with insects and peas.

It's easy to make food with bugs in that tastes just fine. We've been eating food all along that has insect parts in it:

The Food Defect Action Levels: Levels of natural or unavoidable defects in foods that present no health hazards for humans is a publication of the United States Food and Drug Administration's Center for Food Safety and Applied Nutrition detailing acceptable levels of food contamination from sources such as maggots, thrips, insect fragments, "foreign matter", mold, rodent hairs, and insect and mammalian feces.

It's not a question of whether insects are in your food. It's a question of whether you want to hear about it and consciously embrace the activity — entomophagy — that you've been engaging in all along.

There are people who want you to like it, and people who are perversely excited about the way financial pressure is going to help you like it.

Well, so long as it's merely a cash incentive, we can't complain too much. And maybe some day Congress could impose a penalty, collected through your tax return, for people who choose to eat too much meat over insects. Don't worry. Congress isn't going to require you to eat insects. They just wouldn't do that. So don't worry about whether it has the power to do something it's never ever going to do. And, by the way, eating insects is not kosher, but if Congress said everyone had to eat insects, and failed to make an exemption for people who adhere to a kosher diet for religious reasons, it would not violate the Free Exercise Clause. But don't worry. Congress would never require you to eat insects, and if it did, it would offer an exemption for religious folk. I'm sure.

What am I talking about? Have you heard of insect politics? Neither have I!

"Insects don't have politics.... they're very brutal. No compassion.... no compromise. We can't trust the insect. I'd like to become the first insect politician. I'd like to, but.... I'm an insect.... who dreamed he was a man, and loved it. But now the dream is over, and the insect is awake."

See, this is where I end up when I get to thinking about insects and politics. But please. Calm down. Don't worry about the government and it's plans for the insect. Be very cool, like our biggest politician who is famous cool. Watch how calmly he proceeds with his insect politics:



Whaddya think? That was pretty impressive. He got the sucker.

"For justices in the center, I don't think they want to be on the wrong side of history" on same-sex marriage.

Says Stanford lawprof Pamela Karlan.

"Unless we see a massive about-face (in public attitudes), 25 years from now people will look back at this and wonder why (equal marriage rights) took so long.

Chapman University lawprof John Eastman says:

"I hope [Justice Kennedy] won't be swayed by shifting public opinion, assuming there is a shift".... If the law is supposed to change along with public attitudes, he said, "the political process is adequate to the task. We don't need the courts."

Speaking of law that is/isn't changing with shifting public attitudes, I can't help changing the subject to the Constitution's Free Exercise Clause and the current flap over contraception and insurance coverage. An awful lot of conservatives — with Rush Limbaugh leading the pack — are endeavoring to shape public opinion about the meaning of these rights. Either they are genuinely ignorant about the case law interpreting the Free Exercise Clause or they are doing the very thing they normally rail against: trying to make the Constitution "evolve" so it says what they'd like it to say. Here's Rush:

The right to religious liberty in this context is unequivocal in our country and in the Constitution. It's right there in the Bill of Rights. Since when does a president have the power to threaten to issue a rule gutting religious liberty?

It's absurd to declare there's no right to gay marriage in the Constitution and turn around and say the President's rule about contraception and insurance coverage violates some obvious "unequivocal" right in the Constitution. Have one theory of the Constitution and stick to it, clowns.

The First Amendment -- the Bill of Rights of the Constitution -- explicitly says that government shall have nothing to do with religion. You hear, do you not, the left constantly caterwauling, whining and moaning about "separation of church and state"? 

Now, he's reached the Establishment Clause, and suddenly he's an arch-separation-of-church-and-state guy.  Nice to trash "the left" for inconsistency, but what's more hypocritical than being inconsistent in order to trash the other guy for inconsistency?

I've been a law professor for a long time, so it's not as though this sort of thing shocks me. But I would like to help you see how much dishonesty/ignorance is on display here. What would Rush and the other conservatives who are riding this religious freedom issue say about religiously motivated pacifists who don't want to pay taxes that fund the military?

More Rush:

Whenever a religious Republican or conservative seeks political office [the left worries] about "the imposition of religious moral values on people," and say, "This is intolerable! This is intolerable. It's not permitted! It's a violation of the Constitution." So the left hates the Constitution when it's an impediment to what they want to do. When it supports what they want to do, they're the biggest constitutionalists in the world. 

And the right? They do the same damned thing.

"The Supreme Court ruled for the first time Wednesday that federal discrimination laws do not protect employees of religious organizations who perform 'ministerial' duties."

"The court ruled unanimously that the First Amendment’s protection of the free exercise of religion dictates the organizations 'be free to choose those who will guide it on its way.'"

The case involved a Michigan schoolteacher who said Hosanna-Tabor Evangelical Lutheran Church violated the Americans with Disability Act in 2005 when it fired her after she tried to return to work after being diagnosed with narcolepsy.

If a public school does a seasonal, multicultural concert with songs like "Feliz Navidad" and "Hava Nagila"...

... can it remove the song "Raghupati Ragava Raja Ram" — which refers to the Hindu gods Sita and Rama and contains the line "God or Allah is your name" — after various parents complain?

If you think it's unconstitutional, is it a violation of free speech, freedom of religion, or the Establishment Clause?

Obama administration calls Christmas trees "Christmas trees"... and taxes them.

It sound amusingly Grinch-y, but let's be fair. The 15-cent charge is to support a program to "enhance the image of Christmas trees and the Christmas tree industry in the United States."

What makes it very funny to me is that just yesterday, Wisconsin Governor Scott Walker was lambasted for calling a Christmas tree a "Christmas tree." Linking to my post about that, The Anchoress wisecracks:

See, this is where Governor Walker made his mistake: If you want to call ‘em Christmas Trees, you have to tax them, first. Then you’re allowed.

Now, I said I was going to be fair, so here goes, and this isn't intended to be funny at all. This is intended to focus on the constitutional principles about religion and government. In Wisconsin, we've got a tree in the state capitol, the government's own display. Calling that particular tree a "Christmas tree" adds something to what already is the appearance that the state is endorsing or favoring a holiday that originated with one set of religious groups, the Christians.

In the case of the Department of Agriculture's new Christmas Tree Promotion Board, the government is involving itself with a particular crop and using the name of the crop that is used by those who are in the business of growing that crop. That is, the Department of Agriculture is going about its usual business — which you are welcome to view as too intrusive — and not giving special hands-off treatment to this crop that happens to have an end-use in activities that have some connection to a particular religion.

UPDATE: The Department of Agriculture is delaying the new fee, and a White House spokesman is saying:

"I can tell you unequivocally that the Obama Administration is not taxing Christmas trees. What’s being talked about here is an industry group deciding to impose fees on itself to fund a promotional campaign, similar to how the dairy producers have created the ‘Got Milk?’ campaign."

"Does same-sex marriage threaten your freedoms of speech and religion?"

The L.A. Times has a point-counterpoint (as California voters face the decision on Proposition 8, banning same-sex marriage). Dean R. Broyles, president and chief counsel of the Western Center for Law and Policy, says:

In a chilling statement, Chai Feldblum, a Georgetown University law professor and thoughtful gay activist who helps draft federal legislation related to sexual orientation, said that when push comes to shove and religious- and sexual-liberty conflict, "I'm having a hard time coming up with any case in which religious liberty should win."

The actual evidence is overwhelming that this conflict is not imagined but very real. Unfortunately, religious freedom and free speech are increasingly on the losing end of the equation. In 2005, Swedish minister Ake Green was sentenced to jail for preaching about homosexuality from the New Testament book of Romans (the conviction was eventually overturned). New Jersey's Ocean Grove Campground, a religious nonprofit, lost its tax-exempt status in 2007 because the organization refused to rent its facility to a lesbian couple for a civil commitment ceremony. In 2006, Catholic Charities of Boston stopped doing adoption work rather than be coerced by the Massachusetts to place children with same-sex couples. A Massachusetts father was arrested in 2007 when he would not leave the school because the administration stubbornly refused to acknowledge his legal right to opt his child out of ongoing homosexual indoctrination occurring in a kindergarten class.

This year, two Christian doctors here in California were successfully sued for violating state civil rights law because they asserted their right of religious conscience by refusing to perform artificial insemination for a lesbian couple. And famously, just this month, a first-grade class went on a "field trip" to watch its lesbian teacher's wedding in San Francisco.

While legal protections for free speech and religious liberty have been a critical component of our nation's core civil rights protections for more than 200 years, laws granting special rights to those engaged in homosexual conduct are the legal "new kid on the block" -- and this new kid is proving to be an 800-pound gorilla.

Lorri L. Jean, chief executive of the L.A. Gay and Lesbian Center, responds:

Come on, Dean: Do you really think that people will believe your incredible claim that there is "ongoing homosexual indoctrination" in any kindergarten class, let alone that such indoctrination would be required if Proposition 8 fails? That's ridiculous. Proposition 8 has nothing to do with education, and you know it. All the voters have to do is read the language of the measure itself. Proposition 8 is about one thing and one thing only: eliminating rights and treating one group of people differently under the law. That's just wrong.

Jean doesn't really want to understand Broyles's point, and, frankly, Broyles doesn't want to make his point clearly. They are locked in the end stage of a political battle, where wringing out votes is crucial. So they argue strenuously and obtusely.

Let me see if I can make Broyles's point. I think he means to say that if same-sex marriage remains a legal right, enshrined in state constitutional law, then homosexual relationships will come to be regarded normal and good, and, consequently, anyone who objects to them will start to look like a bigot who should not be permitted to have his way. Thus, in order to preserve the right to discriminate against gay people and to keep schools from teaching children that gay couples are perfectly nice and so forth -- all things Broyles wants -- it's important to outlaw gay marriage, because it will be a powerful force in changing perceptions about gay people and those who think gay people are doing something terribly wrong.

Now, with Broyles's argument clarified, what do you think of it?

IN THE COMMENTS: Bissage says:

The problem with this fight is it has been framed in all-or-nothing terms.

But there’s a middle-ground for compromise.

Same sex marriage should become the law of the land but only if it’s interracial.

That’ll buy us some time.

Exorcism and the First Amendment.

The Texas Supreme Court reversed a judgment against the Pleasant Glade Assembly of God Church:

The Supreme Court, in a 6-3 opinion, said the church's exorcism sessions were a matter of church doctrine and were thus subject to certain, though not absolute, First Amendment religious protections....

In her original suit against the church, Laura Schubert said she suffered lasting emotional trauma in 1996 when, on two separate occasions in one week, church members held her down and "laid hands" on her while she cried, kicked, clenched her fists, gritted her teeth and made guttural noises.

Here's the opinion. Key passage:

The “laying of hands” and the presence of demons are part of the church’s belief system and accepted as such by its adherents. These practices are not normally dangerous or unusual and apparently arise in the church with some regularity. They are thus to be expected and are accepted by those in the church. That a particular member may find the practice emotionally disturbing and non-consensual when applied to her does not transform the dispute into a secular matter. “Courts are not arbiters of religious interpretation,” and the First Amendment does not cease to apply when parishioners disagree over church doctrine or practices because “it is not within the judicial function and judicial competence to inquire whether the petitioner or his fellow worker more correctly perceived the commands of their common faith.” Thomas v. Review Bd., 450 U.S. 707, 716 (1981). Because determining the circumstances of Laura’s emotional injuries would, by its very nature, draw the Court into forbidden religious terrain, we conclude that Laura has failed to state a cognizable, secular claim in this case. See Ballard, 322 U.S. at 86.

From the dissenting opinion by Chief Justice Jefferson, agreeing with the majority that "under the cloak of religion, persons may [not], with impunity,’ commit intentional torts upon their religious adherents":

Unfortunately, this is precisely what the Court’s holding allows. Here, assuming all facts favorable to the verdict, members of Pleasant Glade restrained Schubert on two separate occasions against her will. During the first encounter, seven members pinned her to the floor for two hours while she cried, screamed, kicked, flailed, and demanded to be released. This violent act caused Schubert multiple bruises, carpet burns, scrapes, and injuries to her wrists, shoulders, and back. As she testified, “I was being grabbed by my wrists, on my ankles, on my shoulders, everywhere. I was fighting with everything I had to get up, I was telling them, no. I was telling them, let go, leave me alone. They did not respond at all.” After Schubert “complied with what they wanted [her] to do,” she was temporarily released. Fifteen minutes later, at the direction of Pleasant Glade’s youth pastor, a different group of seven church members physically restrained her for an hour longer. After this experience, Schubert was “weak from exhaustion” and could hardly stand.

Three days later, a male church member approached Schubert after a service and put his arm around her shoulders. At this point, Schubert was still trying to figure out “what had happened” at the previous incident, “wasn’t interested in being touched,” and resisted him. As Schubert testified, “I tried to scoot away from him. He scooted closer. He was more persistent. Finally, his grasp on me just got hard . . . before I knew it, I was being grabbed again.” Eight members of Pleasant Glade then proceeded to hold the crying, screaming, seventeen year-old Schubert spread-eagle on the floor as she thrashed, attempting to break free. After this attack, Schubert was unable to stand without assistance and has no recollection of events immediately afterward. On both occasions, Schubert was scared and in pain, feeling that she could not breathe and that “somebody was going to break [her] leg,” not knowing “what was going to happen next.”...

I agree with the Court that certain claims for emotional damages are barred by the First Amendment—if Schubert were merely complaining of being expelled from the church, she would have no claim in the civil courts. But again, this case, as it was tried, is not about beliefs or “intangible harms”—it is about violent action—specifically, twice pinning a screaming, crying teenage girl to the floor for extended periods of time. ...

The tort of false imprisonment is a religiously neutral law of general applicability, and the First Amendment provides no protection against it. Employment Div. v. Smith, 494 U.S. 872, 879 (1990) (“[T]he right of free exercise does not relieve an individual of the obligation to comply with a valid and neutral law of general applicability on the ground that the law proscribes (or prescribes) conduct that his religion prescribes (or proscribes).")

If you voluntarily become a member of a church that has a ritual that involves restraining individuals against their will when they are seen as possessed, can you sue the church for false imprisonment when it subjects you to that ritual?

IN THE COMMENTS: Amba writes:

It also reminds me of saying, if you knowingly married a man who was abusive, the state should not intervene in domestic violence.

Isn't it more like the case a person who decides to participate in sado-masochistic activities and then decides at some point that this isn't what she agreed to? In a tort suit, the issue would be the scope of consent. The problem in the Texas case was that the court thought it would require an examination of religious doctrine to determine the scope of her consent.

Chip Ahoy writes:

I should have known by the sign outside the cute little white church building that the High Octane Holy Roller Wild-Ass Aggressively Evangelical Old-World Church of Omnipresent Powerful Take-No-Prisoners God, that this might not be my style of congregation, but I decided to overlook that little signal and join anyway, and this was Texas, after all.

Jennifer asks:

Especially when you return for a service three days after they already did it to you twice?

Maybe I'm being unsympathetic but I'm straining to understand why someone would trash and scream and flail against known people for hours on end when not acting possessed would keep you physically safer and allow your physical freedom sooner?

Good observations. The screaming and crying — within the church's belief system — could have been seen as the evidence of possession. If the state says to the church, you were required to see her struggle as the reason you had to let her go, it would be saying, you are not allowed to act on your belief in demonic possession.

Joe R. says:

If she were 17 years old, I'd guess that she was being forced by her parents.

Paddy O. writes:

I was a little unsympathetic too, until I read she was 17....

My initial lack of sympathy for this as a court case was also far outweighed by my sympathy as someone interested in churchy things. In that respect this is outrageous. Because it's not about this girl at all. It's about very, very immature men and women trying to play at being super-Christians and instead being laughed at by forces natural and super-.

The girl is a victim--a victim of atrocious theology and spiritual abuse that will likely drive her away from thinking there is any comfort in churches and probably try to find comfort in less than holistic ways. Maybe not. Let's hope she is able to move on in her life, spiritually and emotionally.

Fashion focuses eyes on women's chests.

Upper chests, that is. It's all about the clavicle, the clavicle that you've etched out through hardcore exercise and stringent dieting.



Because what could be sexier that a woman who is shockingly, graphically demonstrating how thoroughly she has excluded all pleasure from her life?

Toned shoppers who want to show off their self-discipline in the face of dessert are choosing dresses with a low, but not plunging neckline, a look that is transforming the area above the breasts into an unlikely new subject for women to obsess over....

Why the new emphasis on a body part most women — and more men — have paid little attention to in the past? Credit a swing of the fashion pendulum, and a malaise over “Girls Gone Wild” style.

Yes, we're bored with breasts now. Haven't you heard? We've had enough of "Girls Gone Wild." We want "Girls Gone Abstemious."

[The clavicle is] an area whose prominence is unlikely to be enhanced surgically (at least for now).

Come on, you slacker plastic surgeons. Get on this, now. Where are my clavicle implants? Figure out how to add bony-looking bumps all over the body. You've been limiting yourself to cheekbones and chins for too long.

This region has been emphasized by the skinny celebrity acolytes of the stylist Rachel Zoe, including Nicole Richie and Keira Knightley. Their ubiquitous deep V-neck tops show off sometimes skeletal frames, and other actresses have taken their cue and sized down as well, to the point that the Internet teems with fashion and celebrity bloggers and message board posters carping about protruding A-list clavicles.

Talk about me, blog about me, say what you like but talk about me. How frighteningly must I cause my bones to protrude to get you to talk about me? Blog about me, dammit!

Courtney E. Martin, the author of “Perfect Girls, Starving Daughters: The Frightening New Normalcy of Hating Your Body” (Free Press, 2007), said that many of the girls and women she interviewed for her book “talked about how far their collarbone stuck out” with pride, as an indicator of their skinniness.

Ms. Martin contends that a generation of young women raised after Title IX and the women’s movement pursue slender figures with the same rigor as they pursue admission to an Ivy League university.

Title IX?! See what happens when you make women competitive? They're just choosing their sport, the extreme sport of thinning.

When Jessica Braff, who works at an advertising agency in New York, lost 15 pounds in her freshmen year of college, the first thing she noticed was that her clavicles were more pronounced.

“I loved it,” she said. She continues to wear clothes that show off her collarbones, which she calls the “easiest and least controversial expression of a kind of sex appeal.”

Yes, it's a kind of sex appeal. The kind that says there is not the slightest thing luscious or sybaritic about me.

On the pro-clavicle side, the most interesting voice is Consuelo Castiglioni, a fashion designer:

[Her] label, Marni, incorporates chest-baring necklines into tops and dresses. The brand has long been a favorite of women seeking clothing that isn’t expressly made to attract men, including skirts with bustles and tops that flare out to obscure any semblance of a waist.

“I think it is clear from my designs that deep cleavages, tight silhouettes, visible tummies or behinds are not part of my aesthetic,” Ms. Castiglioni said in an e-mail message. “What I try to express is elegance and femininity and a more cerebral, hidden sensuality.”

Don't you see? It's intellectual.

"If you protest, your husband will hit you, and if you call the police, he’s going to divorce you, and the whole community will scorn you."

Polygamy in New York City.

Don’t-ask-don’t-know policies prevail in many agencies that deal with immigrant families in New York, perhaps because there is no framework for addressing polygamy in a city that prides itself on tolerance of religious, cultural and sexual differences — and on support for human rights and equality....

[T]ypical, many immigrants said, are cramped apartments in the Bronx with many children underfoot, clashes between jealous co-wives and domestic violence. And if the household breaks up, the wives’ legal status is murky at best, with little case law to guide decisions on marital property or benefits.

ADDED: Meanwhile, in Germany:

A 26-year-old mother of two wanted to free herself from what had become a miserable and abusive marriage. The police had even been called to their apartment to separate the two -- both of Moroccan origin -- after her husband got violent in May 2006. The husband was forced to move out, but the terror continued: Even after they separated, the spurned husband threatened to kill his wife....

The judge rejected the application for a speedy divorce by referring to a passage in the Koran that some have controversially interpreted to mean that a husband can beat his wife. It's a supposed right which is the subject of intense debate among Muslim scholars and clerics alike."The exercise of the right to castigate does not fulfill the hardship criteria as defined by Paragraph 1565 (of German federal law)," the daily Frankfurter Rundschau quoted the judge's letter as saying. It must be taken into account, the judge argued, that both man and wife have Moroccan backgrounds.

Women's rights or multiculturalism: pick one. Either there is equal justice under the law or there is not.

The Supreme Court turns Padilla away.

Gina Holland reports:

"In light of the previous changes in his custody status and the fact that nearly four years have passed since he first was detained, Padilla, it must be acknowledged, has a continuing concern that his status might be altered again," Kennedy wrote... "That concern, however, can be addressed if the necessity arises."

Deborah Pearlstein, director of law and national security at Human Rights First, said: "This is a warning shot for the administration. It would be hard for the administration not to see it that way."

Pearlstein said the court may have given away the outcome of a second case arising from its strategy in the war on terror. Justices heard arguments last week in an appeal by a foreign terrorist suspect facing a military commission on war crimes charges at Guantanamo Bay, Cuba. Justices seemed skeptical of the government's arguments.

I'd like to see some more explanation of Pearlstein's theory. Is it just based on last week's argument, or is it an inference from today's vote? If the latter, I don't see it. Three justices wanted to hear the case: Souter, Ginsburg and Breyer. Stevens could have provided the fourth vote needed to grant certiorari, but he joined the Kennedy opinion. Gina Holland called that a "surprising... unusual alliance." Isn't the simplest explanation that Stevens is predicting what the Court would do with Padilla's case, perhaps based on what he already knows about the outcome of the Guantanamo case (Hamdan)?

Some commentary:

Orin Kerr: "Some will try to look for significant signs in the fact that both Stevens and Chief Justice Roberts joined Kennedy’s opinion, but I don’t know if that is justified."

Steve Vladek: "Justice Stevens?? It was his dissenting opinion two years ago that concluded that Padilla's case implicated 'nothing less than the essence of a free society.'"

Marty Lederman: "[E]vidently Justice Kennedy was not prepared to give either side of the Court the necessary assurance of his views on the merits; this might explain, for example, Justice Stevens's decision not to provide the fourth vote..."

Tung Yin delves into the technical question of whether the case is moot, because Padilla originally asked to be brought to trial and the government has proceeded to do exactly that.

I agree with Justice Ginsburg that the case falls within the "voluntary cessation" exception to the mootness doctrine. The exception is designed to prevent a party from creating mootness by changing its behavior, when it would be able to return to its old ways after it has extricated itself from the litigation. But the question in Padilla was whether to grant cert, and the Court has discretion.

As Kennedy writes: "Whatever the ultimate merits of the parties' mootness arguments, there are strong prudential considerations disfavoring the exercise of the Court's certiorari power." That is, we don't need to say whether we could hear the case if we wanted to, because we don't want to.

Under the circumstances in this case, the government is unlikely to go back to its old behavior. Kennedy makes a point at the end of saying that the courts will be monitoring the government and should act quickly if Padilla's status is changed again.

But why isn't he interested in judicial review of the government's treatment of Padilla in the past?

That Padilla's claims raise fundamental issues respecting the separation of powers, including consideration of the role and function of the courts, also counsels against addressing those claims when the course of legal proceedings has made them, at least for now, hypothetical.

This is the standard reason judges give for requiring a real controversy. It's what you say after you've decided to avoid the case when you've got discretion to hear it. Compare Ginsburg's opinion:

This case, here for the second time, raises a question "of profound importance to the Nation," Rumsfeld v. Padilla, 542 U.S. 426, 455 (2004) (STEVENS, J., dissenting): Does the President have authority to imprison indefinitely a United States citizen arrested on United States soil distant from a zone of combat, based on an Executive declaration that the citizen was, at the time of his arrest, an "enemy combatant"? It is a question the Court heard, and should have decided, two years ago. Ibid. Nothing the Government has yet done purports to retract the assertion of Executive power Padilla protests.

So take your pick: It's a very important question, so we should answer it; or it's a very important question, so we shouldn't answer it.

Just[ices] say yes to hallucinogenic tea.

The Supreme Court is back from a long break today, with Samuel Alito on the bench for the first time. There's a new opinion, in the hallucinogenic tea case:

Justices, in their first religious freedom decision under Chief Justice John Roberts, moved decisively to keep the government out of a church's religious practice. Federal drug agents should have been barred from confiscating the hoasca tea of the Brazil-based church, Roberts wrote in the decision.

The tea, which contains an illegal drug known as DMT, is considered sacred to members of O Centro Espirita Beneficiente Uniao do Vegetal, which has a blend of Christian beliefs and South American traditions. Members believe they can understand God only by drinking the tea, which is consumed twice a month at four-hour ceremonies.

I'll read the case and have more later. Here is my earlier post on the oral argument in the case:

A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:

"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....

Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.

"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.

Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''

Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.

"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....

Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.

Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.

"Isn't it well established that statutes trump treaties?'' Scalia asked.

Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.

Today's opinion is unanimous (with, Alito, of course, not participating). It's written by the new Chief Justice, so I'm especially interested in reading it. I so devoutly hope to find his opinions sublimely crisp.

UPDATE: I’ve read the case, which is called Gonzales v. O Centro Espirita Beneficente Uniao Do Vegetal. The government said it has a compelling interest in the uniform application of the federal law, but Roberts slapped that down:

The Government’s argument echoes the classic rejoinder of bureaucrats throughout history: If I make an exception for you, I’ll have to make one for everybody, so no exceptions. But RFRA operates by mandating consideration, under the compelling interest test, of exceptions to “rule[s] of general applicability.” Congress determined that the legislated test “is a workable test for striking sensible balances between religious liberty and competing prior governmental interests.”…

We do not doubt that there may be instances in which a need for uniformity precludes the recognition of exceptions to generally applicable laws under RFRA. But it would have been surprising to find that this was such a case, given the longstanding exemption from the Controlled Substances Act for religious use of peyote, and the fact that the very reason Congress enacted RFRA was to respond to a decision denying a claimed right to sacramental use of a controlled substance.

There was also an argument that the government has a compelling interest in complying with the international Convention on Psychotropic Substances, which, the Court held, did in fact cover hoasca. But the government failed to present any evidence of what detriment would occur if this small group were given an exemption.

The Court tweaks the government for relying so heavily on interests represented by the Controlled Substances Act:

Congress had a reason for enacting RFRA, too. Congress recognized that “laws ‘neutral’ toward religion may burden religious exercise as surely as laws intended to interfere with religious exercise,” and legislated the compelling interest test as the means for the courts to “strik[e] sensible balances between religious liberty and competing prior governmental interests.”

We have no cause to pretend that the task assigned by Congress to the courts under RFRA is an easy one. Indeed, the very sort of difficulties highlighted by the Government here were cited by this Court in deciding that the approach later mandated by Congress under RFRA was not required as a matter of constitutional law under the Free Exercise Clause. But Congress has determined that courts should strike sensible balances, pursuant to a compelling interest test that requires the Government to address the particular practice at issue.

I must say that I find this case quite amusing! Congress catered to religious interest groups by passing RFRA and thereby disagreeing with the way the Smith Court had read exemptions out of the Constitution's Free Exercise Clause. The Court had tried to constrain the judicial role, but Congress then forced that role on the courts with a statute. And now the Court is taking the statute seriously. They are deferring to Congress by accepting the old activist role of making case-by-case accommodations. How deliciously ironic.

"The M&Ms float crashed. Oh the humanity! As God is my witness, I thought M&Ms could fly."

That's the reaction in the Pajamas Media live blogging when a Thanksgiving Parade balloon crashes and falls, along with a streetlight into a crowd. Here's an MSM report of the incident, quoting a spectator saying "It happened so fast. I said, 'Oh, my God!' It dropped like a rock." Also: "A 26-year-old woman and 11-year-old girl were apparently hurt by the debris."

Do our intrepid bloggers right themselves? Scroll at the first link to see how they carry on joking about the accident:

"Are we liveblogging someone's death? Because I didn't sign on to do parade snuff."

"Ed, you're thinking of skittles. Skittles have superpowers that M&M's do not. It's a generational thing."

I was at the parade in 1969, when Bullwinkle deflated all over a bystanders near the Ansonia Hotel, who moved inside en masse and started Plato's Retreat.

Yikes.
UPDATE: I've closed the comments on this post, based on my new, more vigorous policy announced here. For readers who may not know, the many references to "Jeff" in these comments are to the commenter Protein Wisdom, who is Jeff Goldstein, one of the participants in the live-blogging criticized in this post.

Is Pajamas Media too much like MSM? Well, one way in which it's different, to be sure, is that when you do a blog post, say, criticizing Dan Rather, he doesn't come over and yell at you in the comments! I think it's damned strange that you have what is supposed to be a business, with $3.5 million in financing, where the insiders behave like this. All I did was quote four things that they said and write "Yikes," and Goldstein comes over and rants in my comments -- on Thanksgiving! -- until I'm finally driven to close them down and announce a new comments policy to protect my space from being deluged by ugliness. He's also writing on his own blog, denouncing me as "absolutely despicable." For saying "Yikes" at those jokes made when a large object falls on a crowd? A little thin-skinned, Jeff?

And what about this character, another PJM insider? He writes about my post, saying I'd "lost my mind" and titling the post "Ann Althouse's Integrity"? All for a little old "Yikes"! Oh, I see, he was over here commenting and I deleted his comment. Yeah, because it was too abusive. Now, on his own blog, he's calling me "a liar ... spreading malicious untruths." Where's the lie? He thinks it's a lie to have written about the accident in this post when I wasn't watching the parade on television!

Let the historians of blogging judge who's lost their mind. I'd like to know which insiders are embarrassed to be yoked to folks who are harassing me this way just for criticizing them a little. How bizarrely unprofessional! And, worse, how hostile to the spirit of blogging, which they so desperately want and need to recover!

ANOTHER UPDATE: A reader writes:

I think the 2 posts you describe in the update make it clear that these are not just people who are criticizing your blog because they happen not to like the things you say; it's a smear campaign (which means you're certainly entitled to delete ALL of their comments). A normal person would never say that you were lying in your post about the parade. So many of the recent criticisms of you from people who defend Pajamas Media are essentially saying: "You're criticizing them too much." (Weird attitude for bloggers to have!)

Indeed!

YET ANOTHER UPDATE: Dan at Riehl World View notes that Pajamas could have foreseen that the wind that day would pose problems for the balloons and could have mobilized to provide the citizen journalism they've been talking about:

With just a very little bit of research into what turned out to be an important subtext of this particular parade, PJM might have been in a position to put something rather substantive out within minutes of the accident, offering readers something they likely wouldn't have gotten from the MSM on line for an hour.

News is rarely, if ever that which is expected - it's the unexpected which makes headlines. If we as bloggers want to move into an increasingly significant role as reporters, we're going to have to learn to be better prepared in certain cases.

That's a very sharp and constructive criticism. What does Dan get for it? Jeff Goldstein shows up in the comments and goes after him until Dan actually rewrites his post to "correct the emphasis."

MORE: Baldilocks doesn't understand why I wrote in the comments here that Jeff Goldstein acted as though been given "the assignment to be my personal Baldilocks." I explain over in her comments section.

AND: Was lighting into me for this post behavior befitting the insiders to a major business undertaking? Of course not. What would a media organization that was actually ready for prime time have done? They should have added a note at the end of their live-blogging that said something like:

Live-blogging is part of the great fun of blogging, but it poses risks too. Our live-bloggers didn't see much of the mishap with the balloon as they were watching the televised parade, and unfortunately, their comments carried on in the joking spirit of the live-blog. Afterwards, they saw the news reports, and their hearts went out to the young woman and the girl who got hurt. Looking back, some of those jokes seem pretty insensitive. But we took the risk of live-blogging, and we're going to keep taking risks in the grand tradition of blogging. We knew we'd step on some toes along the way, but we never meant to be mean to the nice people who go to parades.

Then Althouse would have amended her post and said Nice save by Pajamas!

Instead, I've got to say not ready for prime time.

ALSO: I'm going to allow new comments, but I will monitor actively. I will delete posts with hatred, abuse, shouting, personal attacks, repetition, and perseverating demands for apologies and retractions. You can debate and disagree, but you must try to engage with some of the issues on a rational, intelligent level, in the tradition of Althouse blog comments. If you're not familiar with my place, read some of the comments in other posts and get a feeling for the kind of community you are entering. The regulars who hang out here have created an environment that's different from a lot of places where you may be used to commenting. I will not allow you to spoil it for us.

Alito and the Free Exercise Clause.

Emily Bazelon has a piece in Slate about what Samuel Alito has written about religious freedom. She starts off by linking to my NYT op-ed noting that his take on the Free Exercise Clause sets him apart from Justice Scalia, who has embraced a narrow interpretation. Well, she half-links to it, in that it's behind a pay-wall now, but I preserved a permanent link, and you can read it free here.

Bazelon writes:

Alito's religious-liberty opinions are mechanistic applications of precedent. They reveal little about the stance he'd take toward religious liberty as a justice of the Supreme Court.

This is incorrect. Judge Alito pushed the envelope in two cases. In two cases -- which Bazelon details -- he took the doctrine, which says that neutral, generally applicable laws do not violate Free Exercise and was unusually quick to see nonneutrality, which causes the standard to become strict scrutiny. This, in fact, is very revealing. It shows a judge chafing against the doctrine he's forced to follow!

Is Alito libertarian and, if so, what should liberals think about that?

Lawprof Ilya Somin identifies a "libertarian streak" in Samuel Alito. What is the evidence?

1. Two Free Exercise cases -- which I called attention to here. Alito was quick to see a nonneutral policy and to invoke strict scrutiny protection for plaintiffs who asserted the government burdened their exercise of religion.

2. Alito's dissenting opinion in Rybar, a Commerce Clause case, which would have limited federal power with respect to gun possession. Somin's point is not that Alito cares about gun rights. (The opinion says nothing about the states' power to ban gun possession.) He's guessing that Alito would leave more room for states to protect liberty interests than the majority of justices who recently decided that federal law trumped state law in the medical marijuana case, Raich. Notably, Scalia was in the majority in Raich, and Somin's point is that Alito is a stronger supporter of state autonomy than Scalia. There are two problems with reading Rybar as showing a "libertarian streak." 1. States can also use their autonomy to restrict liberty (unless rights are enforced to limit their anti-libertarian policy experiments), and 2. Alito's Rybar dissent looks like the work of a lower court judge who is mainly trying to apply a new Supreme Court precedent correctly, so we can't extrapolate that he would behave the same when he is a Supreme Court judge. But here's Somin's point:

In an era when control of Congress and the presidency will often be in the hands of conservative Republicans, constitutional limits on federal power benefit liberals at least as much as conservatives. Many liberal policies have far better political prospects in "blue states" than in Washington. To cite a few recent examples, Republicans have intruded on states' traditional control over education policy, have overridden state laws legalizing medical marijuana (as in Raich), are trying to use federal power to undermine gay marriage laws established at the state level, and are currently litigating a case before the Supreme Court that would enable the federal government to override Oregon's decision to legalize assisted suicide.

For the last 20 years, I've been making the argument that liberals should see the good in protecting state autonomy. What I find is that they worry so much about the harm states might do with autonomy that they won't take the risk in the hope of getting benefits. Part of this mindset is that they still believe they can get the policies they want from Congress and that the power to impose that policy on all of the states is too good to sacrifice. I haven't thought so much about whether libertarians as opposed to liberals should find state autonomy appealing. Maybe they have a different mindset and have different predictions about what states would do with more autonomy.

3. Free speech:

In Saxe v. State College Area School District (2001), he concluded that anti-harassment rules should not be allowed to infringe on free speech in a case where a public school anti-harassment code was used to forbid expression of some students' religiously based opposition to homosexuality. He has also written opinions protecting commercial speech, notably in Pitt News v. Pappert, where he struck down a ban on paid alcohol advertisements in student newspapers. Expansive definitions of "harassment" and restrictions on commercial speech are two of the most important threats to free expression today. Libertarians have every reason to welcome this aspect of Alito's jurisprudence. Liberals, too, have reason at least partially to embrace Alito's positions here. After all, school anti-harassment codes can just easily be used to stifle gay activists' criticisms of religious conservatives as the reverse. And the latter probably control more school boards than the former do.

4. Immigration:

Alito showed some libertarian leanings in a key immigration case. In Fatin v. INS (1993), he wrote an opinion holding that an Iranian woman could be entitled to refugee status based on the Iranian government's oppression of women and on her support for women's rights. Fatin was not a constitutional case, and was partially based on deference to agency judgment. Still, Alito embraced a more expansive vision of refugee rights than is accepted by many conservatives, and advocated a broad definition of asylum rights for victims of gender-based persecution.

How should liberals react to the Alito nomination? Bush has the appointment power and will pick from the pool of those he imagines will be conservative on the Supreme Court. Given the range of possibilities, what should liberals prefer? Perhaps they should prefer the most ambiguous sort of "stealth" nominee with the hope that he or she will turn out to be a liberal on the Court. (Hence, the lack of opposition to Harriet Miers.) But Somin makes the argument that liberals should find the libertarian sort of conservative at least somewhat appealing:

[T]hey should think seriously about whether they would rather have a conservative with a significant libertarian streak like Alito or a pro-government conservative who will be just as likely to overturn Roe, but less likely to vote to restrict government power over religious freedom, free speech, or immigration.

Audible Althouse, #17.

Here it is, a 55 minute podcast, with a lot about the new Supreme Court nominee Samuel Alito and the various swirling political doings surrounding him, including my own media activities, taking metaphors literally and the connection to Mad Magazine, the free exercise of religion (keeping bears, hallucinogenic tea, wearing headscarves), and a peace rally in Madison and the way Althouse commenters talk about it.

UPDATE: One problem with podcasting is that you can't do corrections. Listening to this podcast, I see that I garble a legal point about Alito's Blackhawk case. I should have been clear that it was a matter of the federal Free Exercise clause: when does a state's policy stop being considered "neutral and general applicable," so that strict scrutiny applies?

ANOTHER UPDATE: My host libsyn.com seems to be having troubles Thursday morning. If the link isn't working, try iTunes.

Hallucinogenic tea time.

The Supreme Court heard oral argument today in Gonzales v. O Centro Espirita Beneficiente Uniao Do Vegetal, the hallucinogenic tea case. A religious group wants to use a drug -- hoasca -- and argues that the Religious Freedom Restoration Act entitles it to an exemption from the Controlled Sustances Act. Under RFRA, the federal government must have a compelling state interest to impose a substantial burden on the free exercise of religion. The government claims an interest in preventing the drug from being diverted into other uses:

"Your approach is totally categorical,'' Roberts told government lawyer Edwin Kneedler during a one-hour argument session in Washington. If a religious group used only one drop of the drug a year, : "your position would still be the same,'' Roberts said....

Justice Antonin Scalia, who wrote the 1990 decision, pointed to an exception Congress made for peyote in American Indian religious ceremonies.

"It's a demonstration you can make exceptions without the sky falling,'' Scalia said.

Justice John Paul Stevens followed up by asking whether the use of peyote indicated that "maybe it's not all that compelling.''

Of the nine justices, Anthony Kennedy offered the strongest support for the government's position.

"It seems to me at the very least there should be a presumption that there is a compelling interest,'' Kennedy told Nancy Hollander, the church's lawyer....

Several justices, including Scalia and Roberts, questioned Hollander's contention that hoasca is exempted under the 1971 United Nations Convention on Psychotropic Substances, which aims to bar trade in illicit drugs. The U.S. is among more than 160 signatories to that treaty.

Both Scalia and Roberts, however, said Congress has the authority to override a treaty through domestic law.

"Isn't it well established that statutes trump treaties?'' Scalia asked.

Interesting! I suppose people will compare this to last term's medical marijuana case, Raich, in which the Court (including Scalia) was quite deferential to the claim that the government needs to be able to pervasively regulate a drug. But Raich was about the scope of Congress's power as against the power of the states. Today's case is about two different federal statutes, one coming after the other and capable of limiting it. The question isn't how much constitutional power Congress has, but what Congress actually did in its two statutes. If it didn't want to cut special exemptions to religious groups, it shouldn't have passed the Religious Freedom Restoration Act. If it didn't want RFRA to apply to drugs, it could have written an exception into it. But in fact, RFRA was enacted in response to a Supreme Court case that was about the failure to give special treatment to the religious use of a drug, so it's especially apt that it should apply here.

UPDATE: Here's the report from SCOTUSblog.

"Any First Amendment decision, right or wrong, will reverberate more readily through the law than a decision made in any other area."

That is what lawprof Seth Chandler discovered, in an elaborate computer-based study of Supreme Court cases, reports The Economist. As a Federal Jurisdiction lawprof, I was especially interested to read this:

He found the most important opinions, at least judged by how many times they were cited, by working out which nodes were likeliest to fall on the shortest paths between two other nodes. Intriguingly, the cases mostly come from an advanced and esoteric subject—the law of federal jurisdiction—that addresses structural features of American government, such as the relationship between the states and the federal government and the relationship between the courts and Congress.

But the federal jurisdiction cases "are not ... the cases that are most tightly bound into the network":

To find the network's so-called main core, Mr Chandler repeatedly filtered out less-connected cases. He found that most of the cases in the main core interpret the American constitution's First Amendment, which protects freedom of speech and free exercise of religion. This, he suggests, means that deciding a free-speech case requires understanding a more complex body of precedents than deciding any other kind of case. By the same token, any First Amendment decision, right or wrong, will reverberate more readily through the law than a decision made in any other area.

Fascinating!

Stevens admits what happened in Kelo is unwise.

Justice Stevens does the typical judicial thing of saying that he doesn't like the outcomes of the cases he decided. Re Kelo:

In ... the eminent domain case that became the term's most controversial decision, he said that his majority opinion that upheld the government's "taking" of private homes for a commercial development in New London, Conn., brought about a result "entirely divorced from my judgment concerning the wisdom of the program" that was under constitutional attack.

His own view, Justice Stevens told the Clark County Bar Association, was that "the free play of market forces is more likely to produce acceptable results in the long run than the best-intentioned plans of public officials." But he said that the planned development fit the definition of "public use" that, in his view, the Constitution permitted for the exercise of eminent domain.

Of course, you understand, that a judge who talks like this — Scalia does it too — is really bragging about how principled he is.

IN THE COMMENTS: A reader chides Linda Greenhouse for writing, in the linked article, "Justice Stevens is the only member of the court to have addressed the issue in a speech" — when in fact, as I noted in the original post, Justice Scalia makes this point in his standard speech. In fact, it's an awfully obvious, clichéd observation for a judge to make. And, as I noted in the original post, it's essentially a brag. It's also a handy defense to critics. What a terrible decision! the critics exclaim. The judge's eternal answer is: I was forced to do what the law requires.