Standing There, Shining

If you haven't read the letter by the woman who was sexually assaulted by the former Stanford swimmer, Brock Turner, I encourage you to do so. He was convicted of three counts of felony sexual assault but will serve only 6 months in jail with some probation. It makes me sad and angry that in the face of so much pain, people still scoff at sexual harassment and discount it as a minor offense. Sometimes, given the nuance in what is and is not acceptable when it comes to romantic relationships, the law is too blunt an instrument with which to sift through the grey areas. In that sense, we should be careful about what we mean when we say "sexual harassment" or talk about "rape culture." This case didn't fall in the grey area, though -- many do not -- and I think this brave girl's message is important. Below is an excerpt from the end of the letter:

"And finally, to girls everywhere, I am with you. On nights when you feel alone, I am with you. When people doubt or dismiss you, I am with you. I fought everyday for you. So never stop fighting, I believe you. Lighthouses don't go running all over an island looking for boats to save; they just stand there shining. Although I can't save every boat, I hope that by speaking today, you absorbed a small amount of light, a small knowing that you can't be silenced, a small satisfaction that justice was served, a small assurance that we are getting somewhere, and a big, big knowing that you are important, unquestionably, you are untouchable, you are beautiful, you are to be valued, respected, undeniably, every minute of every day, you are powerful and nobody can take that away from you. To girls everywhere, I am with you. Thank you."

"Once created, the technique could be used over

and over again, on any number of devices. In the

physical world, it would be the equivalent of a master

key, capable of opening hundreds of millions of locks..."

-Tim Cook, CEO of Apple, from their Motion to Vacate

Heroes and Idealists

From Oliver Wendell Holmes in The Profession of the Law:

"No man has earned the right to intellectual ambition until he has learned to lay his course by a star which he has never seen — to dig by the divining rod for springs which he may never reach. In saying this, I point to that which will make your study heroic. For I say to you in all sadness of conviction, that to think great thoughts you must be heroes as well as idealists. Only when you have worked alone — when you have felt around you a black gulf of solitude more isolating than that which surrounds the dying man, and in hope and in despair have trusted to your own unshaken will — then only will you have achieved. Thus only can you gain the secret isolated joy of the thinker, who knows that, a hundred years after he is dead and forgotten, men who never heard of him will be moving to the measure of his thought — the subtile rapture of a postponed power, which the world knows not because it has no external trappings, but which to his prophetic vision is more real than that which commands an army."

From The Bench, What Is Golf

I miss writing the From The Bench series that I began in law school, and after reading a number of Scalia opinions and dissents this weekend, decided it's time to bring it back. You may have read snippets of Scalia's cracking dissent in PGA Tour v. Casey Martin recently, and I thought I'd excerpt it here as well. It certainly is a great example of his wit. The issue is whether the Americans with Disabilities Act of 1990 (ADA) provides access to professional gold tournaments by a qualified entrant with a disability, and whether a disabled contestant may be denied the use of a golf cart because it would "fundamentally alter the nature of the tournaments." The majority held that the ADA prohibits the PGA from denying entrants with disabilities, and that allowing such a person to use a cart would not fundamentally alter the nature of the game. Scalia disagreed. I quite enjoyed the following bit, though you may have to read the full case and dissent here to understand its relevance:

"If one assumes, however, that the PGA Tour has some legal obligation to play classic, Platonic golf - and if one assumes the correctness of all the other wrong turns the Court has made to get to this point - then we Justices must confront what is indeed an awesome responsibility. It has been rendered the solemn duty of the Supreme Court of the United States, laid upon it by Congress in pursuance of the Federal Government's power "[t]o regulate Commerce with foreign Nations, and among the several states," U.S. Const., Art. I, Section 8, cl. 3, to decide What Is Golf. I am sure that the Framers of the Constitution, aware of the 1457 edict of King James II of Scotland prohibiting golf because it interfered with the practice of archery, fully expected that sooner or later the paths of golf and government, the law and the links, would once again cross, and that the judges of this august Court would some day have to wrestle with that age-old jurisprudential question, for which their years of study in the law have so well prepared them: Is someone riding around a golf course from shot to shot really a golfer? The answer, we learn, is yes. The Court ultimately concludes, and it will henceforth be the Law of the Land, that walking is not a 'fundamental' aspect of golf."

from The Supreme Court, dissent, in PGA Tour, Inc. v. Casey Martin

Antonin Scalia, Legal Giant

Scalia was the most important Supreme Court Justice of his era, and he had a great influence on me as I studied law. I was shocked and saddened to hear of his death this morning. From the NYTimes:

"Scalia’s eloquence and brio ensured that his influence was not just intellectual but also personal. Countless conservative legal eagles who came of age after 1986 will talk about how it was Scalia who inspired them to pursue a career in the law, Scalia who showed them what it meant to be an intellectually fulfilled right-winger in a profession that tilts left, Scalia whose good-humored zest for intellectual combat shaped their own approach to controversy. Indeed, there are few professional conservatives, period — academics or think tankers or even newspaper columnists — who have not been influenced in some sense by Scalia’s words, his writing, his mind."

First Monday

As one of my law professors reminded me via his constitutional law newsletter, today is "First Monday," the start of a new term at the Supreme Court. Living in a country without a well-functioning judiciary makes me even more appreciative of the American way, however flawed. If you're interested, here's an NPR piece on misplaced criticism of the Chief Justice, and a Washington Post article on the politically charged election year docket. I'm looking forward to this book by Chief Justice Breyer (as soon as it's on Kindle), and if you want to understand where I'm coming from on any number of constitutional law issues, I suggest this excellent book. Happy First Monday!

"Every contract is a promise in the

alternative - to do a certain thing or

else to compensate the promisee for any

harm he suffers if the thing remains undone.

-Oliver Wendell Holmes

From The Holy Mountain

In recent years, considerable attention has been paid to the many, multidimensional conflicts in the Middle East, with a particular focus on the influence of radical Islam. Many are inclined to see a conflict along the fault line between Western and Islamic civilizations, a “clash” that divides East from West. Perhaps this is why some do not know and others have forgotten that Christianity is an eastern religion, firmly rooted in the intellectual ferment of the Middle East.

Read More

With Liberty and Justice For All

Very happy about the Supreme Court's decision yesterday to strike down the core of the Defense of Marriage Act. Here are some excerpts from the opinion:

Responsibilities, as well as rights, enhance the dignity and integrity of the person. And DOMA contrives to deprive some couples married under the laws of their State, but not other couples, of both rights and responsibilities.

The power the Constitution grants it also restrains. And though Congress has great authority to design laws to fit its own conception of sound national policy, it cannot deny the liberty protected by the Due Process Clause of the Fifth Amendment.

For no legitimate purpose overcomes the purpose and effect to disparage and to injure those whom the State, by its marriage laws, sought to protect in personhood and dignity.

Read the whole opinion here

Sophistry

Senator Lindsey Graham is calling for Dzhokar Tsarnaev to be classified as an enemy combatant and "held and questioned under the law of war" without a lawyer. But why? In Hamdi v. Rumsfeld (542 U.S. 507, 2004), the Supreme Court held that the US has the right to hold an American citizen as an enemy combatant when he is captured on a battlefield in another country. Tsarnaev is an American citizen who was not captured on a battlefield of any kind. The only difference between Tsarnaev and other domestic terrorists is that he is a Muslim, "and the United States has since the 9/11 terrorist attacks constructed a separate and profoundly unequal system of detention and punishment that essentially applies only to Muslims" (NYTimes).

Senator Graham's justification is as follows: "You have a right (to detain Tsarnaev) with his radical Islamist ties and the fact that Chechens all over the world are fighting with Al Qaeda." But there is no known evidence of "radical Islamist ties," and Dzhokar is an American citizen who has never traveled to Chechnya.

This kind of "reasoning" led to the imprisonment of Japanese-Americans during World War II, and to far worse acts of ethnically and racially motivated violence in other countries (NYTimes). Just read Korematsu v. United States (323 U.S. 214, 1944) for substantiation.

The capture of Tsarnaev last week by the Boston Police and the FBI shows that we live in a country where we are willing to spend millions of dollars and thousands of man hours to bring a bombing suspect into custody alive to be mirandized and put on trial in a court of law. A lesser nation and lesser people would choose the simple, callow, weak-willed expedient of gunning him down in the street because it's easier. To paraphrase a President, we choose to do these things, not because they are easy, but because they are hard. I hope we remain a country of laws, and that people will stop caving to their baser instincts.

Human Dignity

Given the ongoing events in Boston, it's hard to know what else to post about. I keep hearing sirens outside my window as I do everyday, but this afternoon I keep thinking something terrible is happening or is about to happen in New York, too. I also keep thinking back to an Israeli case we read in our law and religion class this semester, written by Justice Barak. In it he argues that people who engage in terrorist activities keep unlawful combatant status even when they are not taking a direct and active part in hostilities. Considering the nature of terrorism, that makes sense. But the most interesting part of the opinion focuses on human dignity. He emphasizes that unlawful combatants are not beyond the law: "They are not 'outlaws.' God created them as well in his image; their human dignity as well is to be honored; they as well enjoy and are entitled to protection. . . by customary international law."

I find it very difficult to forgive on a personal level. Half lies and small cruelties make me angry and resentful. They are so hard to forgive. But when I see that two young boys from a volatile region in Russia decided to fill pressure cookers with shrapnel and set them off at the finish line of a marathon with the intent to maim and kill, all I feel is sympathy for them and for their victims. I search for reasons to explain why they would do something so terrible because I want to forgive them.

Morality is often black and white in our personal lives but it is so complicated elsewhere. Terrorism can never be justified, but its roots often lie in the wrongs others see in the world. Perhaps they were motivated by American imperialism or Western values or drone warfare, things that are so personal to some terrorists but abstract for us. Maybe these boys were just angry. Maybe they were tired of not fitting in. Maybe they thought it would be fun to wreak havoc on a city. Maybe they're not guilty at all. The manhunt for Dzhokhar Tsarnaev will eventually end and we will get the answers in the weeks ahead. As that happens, I think we should keep Justice Barak's words in mind: human dignity applies to every person.