Friday Frivolity: The Current TV Values Edition (Update: Instalink and Pattericolanche!)

Update: Linked and quoted by Insty twice.  And linked by Patterico.  Newcomers might enjoy my multiple posts on the Obamacare arguments (here, here, here and here), and on the Martin/Zimmerman shooting (start here and work backwards).

So today we get word that Keith Olberman has been fired.  Again.  His viewer must be devastated.  One suspects that this might have something to do with the lawsuit involving James O’Keefe, but truthfully that is rank speculation.  I have no idea what brought this on, perhaps because I don’t have Current TV and wouldn’t be caught dead watching it if I did.

But via twitter, Olberman put out a statement today, 140 characters at a time.  And I will aggregate it into something easier to read:

I'll be putting out my statement in two ways: 140 characters at a time, and then in one fell swoop via Twitlonger.

I'd like to apologize to my viewers and my staff for the failure of Current TV. Editorially, Countdown had never been better.  But for more than a year I have been imploring @AlGore and @JoelHyatt to resolve our issues internally, while I've been not publicizing my complaints, and keeping the show alive for the sake of its loyal viewers and even more loyal staff.  Nevertheless, Mr. Gore and Mr. Hyatt, instead of abiding by their promises and obligations and investing in a quality news program, finally thought it was more economical to try to get out of my contract. It goes almost without saying that the claims against me in Current's statement are untrue and will be proved so in the legal actions I will be filing against them presently.

To understand Mr. Hyatt’s “values of respect, openness, collegiality and loyalty,” I encourage you to read of a previous occasion Mr. Hyatt found himself in court for having unjustly fired an employee. That employee’s name was Clarence B. Cain: [link to this article.]

In due course, the truth of the ethics of Mr. Gore and Mr. Hyatt will come out. For now, it is important only to again acknowledge that joining them was a sincere and well-intentioned gesture on my part, but in retrospect a foolish one.

That lack of judgment is mine and mine alone, and I apologize again for it.

Meanwhile, Current TV put out a statement that explained that “We are moving ahead by honoring Current's values.”  And how did they honor Current TV’s values?  By replacing Olbermann with a whoremonger:

We’re very excited to announce that beginning tonight, former New York Gov. Eliot Spitzer will host “Viewpoint with Eliot Spitzer,” at 8 pm ET/5 pm PT.

Well, we have indeed learned a great deal about their values, haven’t we?

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

A Response to Patterico on the Lack of a Severability Clause in Obamacare

Patrick Frey and I are, unsurprisingly, friends, but I do respectfully disagree with a major point in his latest post.

We have been talking here since yesterday about whether, if Congress strikes down the mandate (or any other part of Obamacare), it should simply strike down the offending part, strike down the whole law or strike down only some parts.  And Patrick makes many good arguments for the idea that severing part of a law and saving the is just plain bad policy.  It’s a good post and I recommend reading the whole thing.

But in Patrick’s mind the lack of a severability clause should be determinative of this question.  And I think that’s not right.  He writes:

Here’s my reasoning: first, Congress knows how to put in a severability clause, and as Aaron has noted here on past occasions, these clauses generally appear in most legislation. And it very pointedly did not in the ObamaCare legislation.

And here is the problem: absent a severability provision, when you cut out part of a law, the part that remains is not the law that Congress voted for.

So to Patrick, arguing from a “textualist” perspective (that would be a Scalia-like devotion to plain text) the lack of a severability clause means they did not want it severed.  And there is some support in the law for that notion, including the expression unius rule, which I explain here.

But, first there is a problem with that.  Just as you can say that there is nothing in the law that says it can be severed, there is equally nothing in the law that says it can’t.  So Patrick’s hidden assumption is that the default rule is that unless Congress says it is severable, it is not.  And there are lots of good policy reasons for that.  But I think there is one controlling policy reason for why that should not be the rule.

An Indecent Federal Proposal: The Second Session in the Obamacare Argument Today

So this will be shorter because frankly I didn’t find this as interesting as the others.  You can read and listen to the argument here.

Almost twenty years ago a movie came out called An Indecent Proposal.  Anyone who was old enough to see an R rated movie at that time is likely to remember it but it’s been long enough that if you are not at least thirty-seven years old, you are far less likely to even know it existed.  It starred Woody Harrelson just when people were taking him seriously as an actor, and Demi Moore when she was a fast rising star, as well as Robert Redford when he was showing signs of age but most women considered him a very handsome man.  For all I know they still do.  Here’s the trailer:

(I love that song from Sade)

So the plot is that Moore and Harrelson are a happily married couple and Redford’s character offers them a million dollars to sleep with Moore.  As one wag put it at the time, millions of women would sleep with Robert Redford for a million dollars.  The only problem is raising the money.

Joking aside, though, as I listened to the second part of the day’s oral arguments, I found myself thinking of that movie.  I mean the provocative question in tht movie is “what would you be willing to do for a million dollars?”  I suppose we would have to adjust that for inflation, but there you go.  Or you might think of that old joke reportedly told by Groucho Marx.  It goes like this (borrowing significantly from this site):

Marx was seated next to an attractive and proper young lady and engaged her in conversation. Suddenly he says, “Would you sleep with me for a million dollars?”  The lady blushed, thinks about it, and said she would.  “Well, would you sleep with me for five dollars?”

“Certainly not!” she said, offended. “Just what kind of woman do you think I am?” 

“Madam, we’ve already established kind of woman you are. Now we’re just haggling over the price.”

So are you unwilling to do certain things no matter how much money is offered?  Or are you just waiting for someone to offer you the correct price?

The issue in this argument is kind of weird, because if the severability argument comes out the right way, it might be rendered moot.  It is also the first time I think Clement had some trouble before the court, but I think it was mainly because the argument is weak.

Basically one part of Obamacare says to states that they have to expand eligibility for Medicaid or else they might lose all Medicaid money.  And this, the states argued, amounted to coercion.

Severability, the Plain Text of the Eighth Amendment and the Meaning of Judicial Restraint: The First Session in the Obamacare Argument Today

So we arrive at the hidden booby trap in all of this, severability.  That is the subject of the first of two oral arguments today, which you can listen to, here.

As you all know, Obamacare is a massive bill.  Indeed you will see a couple comments related to its massiveness as we go through the argument.  So what happens to the rest of the law if only one part of it is found to be unconstitutional?

I mean imagine for instance if we have a law that says 1) flag burning is hereby banned, and 2) we will appropriate $40,000 for more FBI agents.  That’s all in the same law.  Now after Texas v. Johnson, the first part is clearly unconstitutional but equally obvious that the second part is not.  So does that mean that you have to throw out appropriations part of that law?

One thing to get about this, also, is that this is not a matter of law but of equity.  I will say in all frankness that I had no idea what equity meant in the judicial context before I started my legal training, so I assume that most non-lawyers have no idea, either.  So let me give you a quick primer (and if you are a lawyer feel free to skip ahead):

It has to do with the dual nature of our judiciary.  You see in England they started with the courts of law, which followed the common law (judge-made law) and whatever statutes were applicable.  The rules were fairly rigid, and the only thing you got were damages—that is, money.  I mean that is a gross over-simplification of things, but it serves as a reasonable thumbnail sketch.

Well, over time it was felt that it was not enough to simply give a person money when their rights were violated.  So somewhere along the way people started going to the Church of England and asking for more.  So the Chancellor who heard those cases would listen to both sides and tell one person or another to do X or else they would go to Hell.  Yes, literally.

Now all the judicial history is a little fuzzy to me but what I do know is that by the time America broke off from England these ecclesiastical courts became more like regular courts, at least in America.  For instance, up until really recently in Virginia, the systems were still semi-separate.  You would have the same judges in the same courtrooms, but on some days they would be chancellors sitting in courts of equity and on other days they would be judges sitting in courts of law.  And this would result in confusion where a court of equity would tell you to go to a court of law and the court of law would tell you to go to a court of equity.  Over time most states merged the systems together—including Virginia—so that same cases would rightfully contain both law and equity.  And of course long ago they stopped sentencing you to Hell for disobeying their injunctions, but instead would send you to jail.

I think severability has to be understood as an equitable doctrine.  I say this based on my understanding of the doctrine of judicial review—that is the idea of striking down statutes that do not jibe with the constitution.  First that popular phrase “striking down statutes” is actually a misnomer.  It makes it sound like the United States Supreme Court is going into the statute books and ripping the statute out.  When I read Marbury v. Madison, for instance, what I see is almost like judicial civil disobedience, the way Martin Luther King understood the term.  They aren’t saying that the law isn’t on the books, but they are saying that they will not help the other branches enforce an unconstitutional rule.  Indeed there is a strong parallel between Martin Luther King’s logic in declaring that “an unjust law is no law at all” and Chief Justice John Marshall reasoning that an unconstitutional law is no law at all.

But that approach is self-limiting.  In my hypothetical flag burning/funding for the FBI statute, judicial review gives the courts the power to say “we aren’t going along with that flag burning part” and refuse to enforce that law, but that doesn’t justify, by itself, refusing to honor that appropriation to the FBI.  So I think you have to understand the idea of severability—or more precisely the idea that certain parts of a law cannot be severed from another—as a matter of equity.

And that is important, because equity is weird and its reasoning does not sound very much like traditional legal analysis.  Of course in a real way it has been part of the judiciary from the beginning and lawyers are expected to be as versed in equity as they are in law, but it still feels outside of the law.  For instance in most cases courts sitting in equity will consider “the public interest” before granting equity.  That is not an appropriate concern in a legal matter (although that is often considered).  You have to weigh the harms of one party against the harms of another in equity.  You have to consider many mushy factors that just don’t apply to legal claims.

So for instance in Brown v. Board of Education the Supreme Court declared that racial segregation in schools was illegal.  Did that mean that the very next day every school had to desegregate or even potentially integrate?  No.  Because when it came to issuing injunctions declaring that a school shall stop discriminating along the lines of race, that became a matter of equity.  So in fact in legal circles, there are two Brown decisions.  In Brown (I), the court famously stated that this situation was illegal and in Brown II, the Supreme Court gave some guidance to the lower courts on how to begin to end school segregation.

So when the Supreme Court talks about severability the courts are given permission to consider things that ordinarily are things I don’t rightfully think they should consider, such as what is the best policy (the public interest) and the like.

By the way, once you understand the distinction between law and equity you will never read the Constitution the same way again.  For instance, this understanding brings new meaning to the familiar line in Article III, Section 2 that “The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution...”  Or consider the Seventh Amendment, which states that “In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved[.]”  Now, knowing about the courts of equity (if you didn’t before) you notice that by specifying the common law, as opposed to equity, they are implicitly saying that you do not have a right to a jury in a case at equity and that is precisely how the courts have read this provision.

Returning to the subject, I know that is a long introduction, but bluntly I am hoping it colors how you see this discussion going forward.

Now overall, I think on balance there is a weaker conservative majority favoring the idea that the entire law has to fall in this case.  And this seems to be a case where the courts would be “making new law” that is making a new rule.  This is not necessarily illegitimate even in a case at law, because the courts have always been allowed to make new law where the statute does not fill things in.  This is what we call the common law—judge made law.  And one of the best ways to convince a court to make new common law is to show them that their previous judge-made law did not adequately address the current circumstance.

As I discussed in my Patterico days the rule on severability was laid out in Buckley v. Valeo.  Buckley will come up several times during this discussion but in that case they struck down part of a campaign finance law and left the rest in place.  In that case, the Court said:

Unless it is evident that the Legislature would not have enacted those provisions which are within its power, independently of that which is not, the invalid part may be dropped if what is left is fully operative as a law.

And I summed up that rule as follows:

So it’s a two part test: does the rest of the law even work without the invalid portion?  And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law?

Well, what many of the conservatives seem to be saying is, “that’s all well and good if you are talking about a provision in a law that is in the periphery.  So if we are talking about a 2,000 page budget appropriation where one Congressman put in a rider banning flag burning, it makes sense to invalidate that rider without throwing out the entire budge of the United States.  But this provision goes to the heart of the law, and it’s a different thing entirely to cut that out and expect the statute to limp on.”  I don’t believe that was something they said before, so it would be a case of making new law, but it is a reasonable evolution of the federal common law.

So let’s jump into the interesting passages.  Again the only ordering here is chronological, with one exception.

PSA: The Third Day’s Arguments Are Online (Update: Two Arguments Today, Second One Added)

Update: My apologies, but there were actually two oral argument sections today.  You can hear the second part, here.  As of this writing there is no transcript, yet, but I am sure that will change shortly.  Also see below for some analysis of the first part.


Update (II): The second part of the discussion today is about the expansion of medicaid.  This has to do with when the Federal Government can coerce states with financial incentives.  I will say bluntly I have not explored that issue as much as the mandate and severability, so I will write a post on the severability arguments first, and then listen to the second argument and see if I have any insight on that.  It might be the case that I have none.


And ultimately it might be irrelevant.  If the Supreme Court rules that none of the act can be severed, then this whole question becomes moot.  But I will confess to a certain amount of skepticism of the argument that somehow cutting off Federal funding is "coercive."


We now resume the original post, more or less as it was written.

This isn’t likely to be as “sexy” as yesterday’s arguments, but here’s the thing: in some ways it is more important.  They are talking about severability.  The issue is, if the mandate is unconstitutional, does that mean the whole law is struck down, or just part of it?  And that is important because if only part of it is struck down, the rest of it could be a potential economic disaster.

I wrote about the issue back in my Patterico days, here.  The short answer is this.  There is no severability provision in the law, which is a pretty big oversight.  So with no explicit guidance from Congress, the Supreme Court will default to a test of their own:

So it’s a two part test: does the rest of the law even work without the invalid portion?  And if it does, is it still the case it is evident that but for this provision, Congress would not have passed this law?

At least that is what they will do if they follow precedent.  But I really would be surprised if they blaze a new trail on this one.

Update: Having only listened to the first part of the discussion, I can see that the conservatives are toying with the idea of making new law.  They are arguing that the mandate is the "heart" of Obamacare, and thus it is inappropriate to be talking about severing the rest when you cut out the heart.  It also seems that even the liberals will want to sever out more than the mandate, if the mandate is struck down.  More will come.

And since I am a health lawyer, I think I can justify listening right now.  You can listen and read the transcript, here. [Update: bad link.  Fixed.]

Also to commemorate my analysis of yesterday's argument, let’s remember Nancy Pelosi’s response to the question of whether Obamacare is constitutional:

Yes, Nancy, they are serious.  And perhaps if you took your role as a guardian of our sacred constitution more seriously, we wouldn’t be in this position.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

Of Federalism, Lochner and Broccoli: A Recap of the Second Day in the Obamacare Arguments

Okay, gang, so I listened to it (you can, too, here) and…  yeah, this looks pretty good for those of us who don’t like the mandate.  First, any hope that Scalia would uphold the law seems like a pipe dream.  And Kennedy seemed to be very troubled by this statute.

So let me show you the parts I found interesting or significant, for what it is worth, in chronological order.

Early on Alito highlights a theme of the anti-mandate forces: that this is not just about insuring that when you go to the hospital that you already have set up a method of paying for the care, but instead this is about subsidizing the health insurance industry generally by forcing people who wouldn’t buy insurance to buy it.  So it’s not really about solving a free rider problem alone:

JUSTICE ALITO:... Respondents -- the economists have supported -- the Respondents estimate that a young, healthy individual targeted by the mandate on average consumes about $854 in health services each year. So the mandate is forcing these people to provide a huge subsidy to the insurance companies for other purposes that the act wishes to serve, but isn't -- if those figures are right, isn't it the case that what this mandate is really doing is not requiring the people who are subject to it to pay for the services that they are going to consume? It is requiring them to subsidize services that will be received by somebody else.

GENERAL VERRILLI: No, I think that -- I do think that's what the Respondents argue. It's just not right. I think it -- it really gets to a fundamental problem with their argument.

Please note the Solicitor General is frequently referred to as “General Verrilli,” which is admittedly strange—I mean you picture generals only in military contexts—but it’s how it has been done for a while.

And early on Kennedy was hammering them with big doubts.  Indeed right out of the gate, we get this exchange:

JUSTICE KENNEDY: Can you create commerce in order to regulate it?

GENERAL VERRILLI: That's not what's going on here, Justice Kennedy, and we are not seeking to defend the law on that basis.

In this case, the -- what is being regulated is the method of financing health, the purchase of health care. That itself is economic activity with substantial effects on interstate commerce.

And then later on he gets to the really big issue:

JUSTICE KENNEDY: Could you help -- help me with this. Assume for the moment -- you may disagree. Assume for the moment that this is unprecedented, this is a step beyond what our cases have allowed, the affirmative duty to act to go into commerce. If that is so, do you not have a heavy burden of justification?

I understand that we must presume laws are constitutional, but, even so, when you are changing the relation of the individual to the government in this, what we can stipulate is, I think, a unique way, do you not have a heavy burden of justification to show authorization under the Constitution?

GENERAL VERRILLI: So two things about that, Justice Kennedy. First, we think this is regulation of people's participation in the health care market, and all -- all this minimum coverage provision does is say that, instead of requiring insurance at the point of sale, that Congress has the authority under the commerce power and the necessary proper power to ensure that people have insurance in advance of the point of sale because of the unique nature of this market, because this is a market in which -- in which you -- although most of the population is in the market most of the time -- 83 percent visit a physician every year; 96 percent over a five-year period -- so virtually everybody in society is in this market, and you've got to pay for the health care you get, the predominant way in which it's -- in which it's paid for is insurance, and -- and the Respondents agree that Congress could require that you have insurance in order to get health care or forbid health care from being provided -

PSA: The Second Day’s Arguments Are Online

And since I am a health lawyer, I think I can justify listening right now.  You can listen and read the transcript, here.

Update: I haven't listened to any of it yet, but Jeffrey Toobin is not optimistic:



Which makes me optimistic.  The early consensus, though is that Kennedy has left an opening to uphold it.  I think though, I will go into my Fortress of Solitude, see what I think unpolluted by the influence of others and let you know.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

“What makes all these people who are threatening George any better than the person they think he is?” The Latest Zimmerman/Martin News Roundup

Okay, we have a lot of news stories and commentary to aggregate, so let’s jump into it.

As a way of review, in my legal analysis (here and here) there are three crucial questions to determine whether Zimmerman validly invoked self-defense:

1)      Who struck the first blow? 

2)      At the moment Zimmerman shot Martin, did Zimmerman have a reasonable fear that Martin was about to inflict legal force on him?

3)      If Zimmerman struck the first blow, did Zimmerman have a reasonable opportunity to escape?

I say that having reviewed enough evidence that it makes it pretty clear that there was some kind of fight between them before Zimmerman shot him.  Obviously things would be very different if Zimmerman shot him with no fighting beforehand.  So pay close attention and you will see that, maddeningly, for the most part the only person who can answer those questions is Zimmerman.

First, for the first time we have heard George Zimmerman’s account.  Via the Orlando Sentinel (hat tip to Dustin in the comments):

With a single punch, Trayvon Martin decked the Neighborhood Watch volunteer who eventually shot and killed the unarmed 17-year-old, then Trayvon climbed on top of George Zimmerman and slammed his head into the sidewalk, leaving him bloody and battered, law-enforcement authorities told the Orlando Sentinel.

That is the account Zimmerman gave police, and much of it has been corroborated by witnesses, authorities say. There have been no reports that a witness saw the initial punch Zimmerman told police about...

In his version of events, Zimmerman had turned around and was walking back to his SUV when Trayvon approached him from behind, the two exchanged words and then Trayvon punched him in the nose, sending him to the ground, and began beating him.

If You Want to Listen to the Obamacare Arguments—Or Read the Transcrtipts...

Here’s the place to do it.  Just to preview—not having listened to it at all—what they are talking about is a law that prevents challenges to tax laws before there is an attempt to collect.  So far there has been no attempt to collect.  Whether it is a “tax” or a “penalty” is significant also to the ultimate constitutionality of the law, too—in other words, it is not just a matter of a procedural bar, but it becomes much easier to justify it in the final analysis.  But it also would have the effect of kicking the can down the road, until well after the election.

In my opinion, the analysis of Judge Vinson on the subject is the absolute best.  You can read me commenting on it in a post back in my Patterico days entitled Judge Vinson to Congress: You Really Should Read These Laws Before You Pass Them.

Via Althouse, who saved me some googling today.

I’ll be listening to it tonight and sharing my thoughts.

Update: How’s this for a biased, “breaking news” email from Cnn:

Nearly one in three Americans thinks the U.S. Supreme Court should overturn the entire 2010 health care law signed by President Barack Obama, according to a new CNN/ORC poll.

The poll finds that 43% want to strike down only some provisions of the law and 23% think the court should leave it as it is.

Got that?  The lede isn’t the fact that the overwhelming majority of Americans think that the law is at least partially unconstitutional, it’s that only a third think that the whole law should be thrown out.  And given that that question is based on a more esoteric concept in constitutional law, I am not sure how much those numbers tell us.

By comparison, here’s the lede in the article at Cnn’s site, apparently based on the same poll:

Washington (CNN) – Most Americans don't want the Supreme Court to completely overturn the landmark yet controversial 2010 federal health care reform law, but only a quarter of the public wants to see the high court leave the measure alone, according to a new national survey.

That is a lot more neutral.  And by the way, Cnn, why is this a breaking news story?  It’s not an event that just happened, it’s just a poll.  Breaking news should be reserved for terrorist attacks and the like.  Not that you are the only ones to do this, but you are the ones I am talking about right now.

Interestingly enough, if you go into the detailed results, you find out that 50% of the population believes that the Supreme Court will make its decision based on its political views, and 46% believe they will base it on their objective interpretations.

So just to do the math, 73% of the public believes that the Supreme Court should strike down at least part of the law as unconstitutional, but only 46% of the public believes that the Supreme Court will follow the law.  That suggests that the best way to convince the people that the Supreme Court is following the law is to strike down part of the law.  So if the Justice Kennedy is driven by protection of the institution of the Supreme Court as I have argued, then he will vote to strike down only part of the law.

But the dilemma is this.  Striking down only the mandate would result in a catastrophe for the insurance industry.  Yes, Congress would have time to avert it, but do you think that the parties can work fast enough to do so?  Not frickin’ likely.  So the option that will enhance the prestige of the court the most would invite economic disaster.

Update (II): So I had a chance to listen and read, and I agree with numerous commentators that it looks like the Supreme Court was extremely skeptical of the notion that this was a tax and not a penalty—including some of the more liberal justices.  Now there is some wiggle room in that they were discussing whether or not it was a tax for purposes of a statute, rather than the constitution, and literally the same word might mean different things in two different laws.  But typically the Supreme Court likes to read the language of the law in a unified way, if only to make it easier for lay persons to understand the law.

Here’s a Video I Missed

A news report just after the incident:

And do listen to the end.  His parents deserve your respect and sympathy.

The guy in the red sweater was Zimmerman.  It’s another instance where the crucial moment wasn’t seen, but still it contradicts the narrative that Zimmerman shot the kid in cold blood, or Charles Johnson’s misleading statement that:

Zimmerman ... chased the boy down, and shot him in the street.

It seems safe to say that Martin and Zimmerman got into a fight.  Which doesn’t justify shooting the kid automatically.  Instead that turns on the following questions:

Who struck the first blow?

Did Zimmerman have a reasonable fear that Martin was about to subject him to lethal force?

If Zimmerman struck the first blow, did he have a reasonsable chance to escape?  (because contrary to what you heard, there are some circumstances where you are required to retreat in Florida)

If Martin struck the first blow and the answer to the second question is yes, then Zimmerman was justified in shooting.  Even if Martin didn't intend to do serious bodily harm to him, even if he had a chance to escape.

If Zimmerman struck the first blow, he did have a reasonable fear, and he did not have a reasonable chance to escape (for instance, if he was still on the ground), again he is innocent.

And the key thing is this.  As far as I can tell, the only living witness to those crucial moments is Zimmerman.  The only person who can answer those crucial questions, who is alive, is Zimmerman.  So barring surprising evidence to the contrary, I don’t see how they can even justify trying him.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

New York Times: Hey, Isn’t It Great the Way Obama Brought his Race Into the Trayvon Martin Case?

Earlier today I talked about this statement by Obama:

Update: That video is not loading, so here's a substitute.

And among other things, I had this to say about it:

[H]ere is the absolute worst part of what Obama said:

“My main message is to the parents of Trayvon Martin. You know, if I had a son, he’d look like Trayvon,” Obama said. “All of us as Americans are going to take this with the seriousness it deserves.”

At the beginning of the statements Obama notes that as head of the executive branch that might very well prosecute George Zimmerman for a crime, he is limited in what he can say.  He rightly recognizes that if he makes statements indicating any kind of prejudice in the case he could harm the ability of the government to prosecute it.  And please note when I say “prejudice” I don’t mean merely if he expresses any bias based on race, sex, etc. but any pre-judgment, any kind of judgment before the facts are in.

But ironically that very statement exposed himself to charges of prejudice—the kind of prejudice you think of first when you think of the word, bias based on race.  He just implied that because of racial affinity he feels particularly bad about the Trayvon killing.  So then since a hypothetical son of Barrack and Michelle Obama would not look like George Zimmerman, does that mean he feels less sympathy for him?

And indeed Trayvon does not look particularly much like Barrack or Michelle Obama.  The only way you could say that Obama’s hypothetical son would look like Trayvon is if you think all black people look alike, and gee, I thought that was a racist point of view?

One does have to wonder how this will play in the Hispanic community, too.  While the President didn’t indict Zimmerman, his racially charged remarks might play badly.  The President should have made no reference to the race of anyone involved; and indeed all good people feel sympathy for the Martin family, regardless of skin color.  If you don’t feel bad for them, yeah, I think there is something wrong with you.

But according to Jackie Calmes and Helene Cooper of the New York Times, this is swell:

President Obama did not mention race even as he addressed it on Friday, instead letting his person and his words say it all: “If I had a son, he’d look like Trayvon.”

Weighing in for the first time on the death of Trayvon Martin, the unarmed black teenager shot and killed a month ago in Florida by a neighborhood watch volunteer, Mr. Obama in powerfully personal terms deplored the “tragedy” and, as a parent, expressed sympathy for the boy’s mother and father.

“I can only imagine what these parents are going through. And when I think about this boy, I think about my own kids,” Mr. Obama said. “Every parent in America,” he added, “should be able to understand why it is absolutely imperative that we investigate every aspect of this and that everybody pulls together — federal, state and local — to figure out exactly how this tragedy happened.”

While speaking movingly from his perspective as the father of two girls, one a teenager, Mr. Obama notably made no reference to the racial context that has made the killing of Trayvon and the gunman’s claim of self-defense a rallying point for African-Americans. Since Mr. Obama first began campaigning to be “president of all the people,” as his advisers would put it when pressed on racial issues, he has been generally reluctant to talk about race. And after his historic election as the first black president, Mr. Obama learned the hard way about the pitfalls of the chief executive opining on law enforcement matters involving civil rights.

Trayvon Martin Shooting Roundup

There’s a lot of idiocy going around these days, starting with the President’s reaction via Michelle Malkin:

There’s a lot there.  Some of it is uncontroversial.  The assertion that this is a tragedy seems pretty safe.  As I said yesterday, it seems extremely safe to believe that Martin was innocent in all this.  I say that even though I noted evidence that Martin attacked Zimmerman.  As I noted in the comments it was very possible for us to have seen a scenario of cascading errors.  Zimmerman erroneously believed that Martin was “up to something” so he followed him.  Martin saw this man following and got scared and reasonably attacked Zimmerman believing he was defending himself.  Zimmerman reasonably got scared that Martin was pulling a gun on him and drew first and fired.  That is pure speculation, but it is very easy to imagine that kind of cascading reasonable errors that led to this death.  In any case, a young man who by all indications was doing absolutely nothing wrong is dead and even if it is not a crime, it is a tragedy.

I am faintly irritated by the President’s assertion that this is an occasion to re-examine the law.  As I pointed out yesterday, this really had little to do with the no-retreat rule in Florida.  Incidentally I will take this moment to point out that I was trivially wrong on one point.  If Zimmerman threw the first punch the law in Florida apparently would impose on him a duty to retreat (remembering that it only applies if one can reasonably do so in safety—you don’t have a duty to run when you know you are likely to be shot trying to escape).  Which means that far from being a radical jurisdiction, Florida is solidly in the mainstream of most states.  Most states only impose a duty to retreat on aggressors outside their own homes.  But as I showed when discussing the Bobbitt case (not the famous Bobbitt case), the Florida courts radically imposed a duty to retreat even on a battered wife in defending her own life in her own bedroom.  That seems to be a bit much.

Every state in the union recognizes a right to self-defense that goes by whether one reasonably believes they are in danger.  No matter how robust or stingy the right of self-defense is, it always has that core where you have a right, under the right circumstances, to kill another based on a reasonable fear of death, serious bodily injury and so on.  And since it goes on your perception of the danger, rather than the reality of it, mistakes like this are inevitable.  That is, it is inevitable that sooner or later an innocent man will be mistakenly thought to pose a threat.

Would we really want any other rule?  Imagine that you face a situation where you believe that your life is in danger.  If you sincerely believed you were in danger, would hesitate to use whatever force is necessary to save your own life?  And remember the same rule applies to the defense of others.  So if you really believe someone has a gun to the head of a loved one, would you hesitate to do everything necessary to protect that person’s life?  Outside of military conscription, the law cannot and should not expect you to risk your own life, period.  That is why, while I think Roe v. Wade was generally wrongly decided, I do believe a woman has an absolute right to abort a fetus if her life is in danger—because it is just self-defense.

And most people get that.  For instance, I think it is safe to assume that everyone has watched the movie Die Hard.  For the five people who haven’t, the set up is that terrorists take over an office building and off-duty cop John McClane is trapped in the building and doing what he can to stop the bad guys.  And one of the best parts of the movie is the relationship between McClane and Al Powell, another cop on the outside.  They only talk on the radio for much of the movie, only meeting in person at the end, and by then they are friends for life.  In one powerful scene, John asks why Al chose a desk job.  Al replies:

I shot a kid.  He was 13 years old.  Ohhh, it was dark, I couldn't see him.  He had a ray gun, looked real enough.  You know, when you're a rookie, they can teach you everything about being a cop except how to live with a mistake.  Anyway, I just couldn't bring myself to draw my gun on anybody again.

He’s not saying he was demoted or imprisoned for it.  Just that he felt so horrible about the thing that he couldn’t bring himself to draw his gun any more (which makes it that much more powerful at the end when he does use his gun to save his new friend).  I don’t think a single person watching that movie thinks that Al did the wrong thing, and certainly no one thought he should go to prison.  If you thought that, then I start to think there is something wrong with you.

What all of this is, is the worst example of “there oughta be a law” syndrome, which was classically lampooned by this bit from the Onion:

Truck Accident That Killed Rafters in Canyon Sparks Truck-Canyon-Rafter Reform Debate

There is no realistic and just way to avoid every failure—to prevent every innocent person from being killed.  And saying this means we need to reform the law only ensures that injustice will occur.

But I am burying the lede here, because here is the absolute worst part of what Obama said:

“My main message is to the parents of Trayvon Martin. You know, if I had a son, he’d look like Trayvon,” Obama said. “All of us as Americans are going to take this with the seriousness it deserves.”

At the beginning of the statements Obama notes that as head of the executive branch that might very well prosecute George Zimmerman for a crime, he is limited in what he can say.  He rightly recognizes that if he makes statements indicating any kind of prejudice in the case he could harm the ability of the government to prosecute it.  And please note when I say “prejudice” I don’t mean merely if he expresses any bias based on race, sex, etc. but any pre-judgment, any kind of judgment before the facts are in.

But ironically that very statement exposed himself to charges of prejudice—the kind of prejudice you think of first when you think of the word, bias based on race.  He just implied that because of racial affinity he feels particularly bad about the Trayvon killing.  So then since a hypothetical son of Barrack and Michelle Obama would not look like George Zimmerman, does that mean he feels less sympathy for him?

Friday Frivolity: Those Wheels are Real, and They’re Spectacular!

This isn’t mature, but it’s pretty funny.

So in Canada they are having their own political season.  I guess.  And one of the local party leaders is Danielle Smith, who you will see in a moment is pretty easy on the eyes.  So naturally they are using a large picture of her on the side of a campaign bus and everything was going well until, um, this happened:

Mmm, yeah.  So there are a few snickers about the whole thing and at the same time Shannon Stubbs, a local party spokeswoman, well…  spoke on the subject:

“We’re getting it adjusted right now since it will be a distraction throughout the campaign,” said Shannon Stubbs, party spokeswoman and candidate in the Alberta riding of Fort Saskatchewan-Vegreville. “Nobody really noticed, since we have been focused on providing a solid campaign platform. There were a couple of comments when we were doing the initial draft a long time ago, but the majority of the team didn’t notice or didn’t anticipate it would be an issue.”

Those people who didn’t think this would be an issue are to be pitied, because they were clearly born without a funny bone.

The image in question has Smith’s head above the rear wheels, making it look as if the tires are taking the place of her breasts.

“We do think that if this is the absolute worst thing to go wrong in the campaign, then that’s not too bad,” Stubbs said. “We’ve been having a bit of laugh because of the attention it’s been getting. Somebody suggested we submit a picture into Leno or Letterman to get international attention, as well as the national coverage we’ve been getting.”

However, she also suggested that not everyone is amused.

“I did see someone comment that it might be one of the reasons why women are dissuaded from entering politics, and I think there might be a valid point there.”

So she goes from juking about it and talking about sending it to Leno for media attention, but then complaining that this somehow is a feminist crime.

And really?  You don’t think this would happen to a man?  Imagine if, for instance, the photo was of a man only it showed his upper body, going from his head down to his pelvis, so that those tires were exactly where his “beans” would be.  Or imagine if they put him up on a wall mural and a flagpole just happened to be where his “frank” would be.  Tell the truth, we’d be snickering about that, too.

For myself, I keep thinking of this classic scene in The Naked Gun:

I won’t say “rest in peace” to Leslie Nielson.  I will say “rest in laughter.”  The world is not as funny without you.  (And he was a fine dramatic actor, too.)

Via Ace.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

Reasonable Beliefs: Prejudice, Myth and Reality in the Trayvon Martin Shooting (Or “Why Han Solo Had the Right to Shoot Greedo First”)

Strap yourself in because this is a long one.

So here we go again, a local criminal incident becomes national news, for some reason and thus all of the world pretends to know something that it cannot know.

We saw this before in the Duke non-rape case.  Those Duke lacrosse players were accused of raping that woman and somehow people just knew that they were guilty.  I remembered wondering immediately why they were so sure.  Hopefully they at least read a few newspaper accounts, but they didn’t look in the alleged victim’s eyes as she described what happened to her, or in the eyes of the accused as they denied it.  So for me the only logical position was to be agnostic—maybe they did, maybe they didn’t, we’ll have to wait and see.  But these people were somehow sure.  There was no word for it but prejudice.  As I wrote in a different context:

To pre-judge a person is to literally “judge before.”  Before what?  Before it is appropriate, before you have all the facts.  Of course normally we think of prejudice as being based on specific traits.  Racial prejudice is to judge a man by his skin color, rather than getting enough facts to judge him as an individual.  But it can be based on anything.

And there was definitely some kind of premature judgment in that case because eventually it was revealed that one of the accused was on video at an ATM at the time he was supposedly committing rape.  And after that the entire case fell apart.

What was the prejudice there?  Well, besides the Hatfield and McCoy feud between alumni of Duke and Carolina, you have to think there was leftover jock resentment, and also part of the calculus is that it fit the sad historical pattern of black women being victimized by white men, and the historical concern that her rights would not be vindicated because she was black.  These are valid to an extent, but just because historically African American women have been victimized by white men, didn’t mean that those particular white men did so; and not only did the local authorities take her claims of rape seriously, but Nifong was so zealous in his prosecution that he ended up violating ethical rules and being disbarred.

And we see this in other instances, where reporters sitting there with the bare text of transcripts decide that a person convicted by a jury of their peers twenty years ago was absolutely definitely innocent, even though an appropriately skeptical person standing from afar wonders how they can be so sure when they never looked the witnesses in the eye.  And certainly the chronic failure by reporters to understand the law itself only compounds the error.

So we have another case of a racially charged incident and everyone pretends to know what happened.  I have looked at the news reports and at this point in time, if you cut through all the clutter one simple truth emerges: at the crucial moment where the law decides whether George Zimmerman committed unlawful murder or justifiable homicide under the principle of self-defense, there is only one living witness: George Zimmerman.

For instance, there are numerous 911 recordings aggregated at this post over at Mother Jones.  It and the reportage generally puts certain facts beyond dispute.  George Zimmerman was doing some unofficial “neighborhood watch” work when he became concerned that Trayvon Martin might have been engaged in criminal conduct.  I will assume his family is correct in insisting that he wasn’t engaged in criminal conduct—and to do so would be out of his character.  And there is certainly no dispute that Martin was unarmed, although he had a bag of skittles and an Ice Tea on him.  So Mr. Zimmerman called the police and as he called them pursued Mr. Martin.  Then at some point the call ended and... some kind of confrontation happened and Mr. Martin ended up dead.  So it seems an innocent man died.  And thus we get this push across the country for Zimmerman to be prosecuted.

But let’s clear out some myths, first.  First, people always seem to take it as a given that it is self-evidently murder to kill an unarmed man.  That is not the case.  The lawfulness of your conduct is not determined by whether the defendant is actually in danger, but whether the defendant is in reasonable fear.

[Please note this is not legal advice.  This is only a discussion of the law for the purpose of discussing the merits of the law so we as citizens can decide whether to change the law.  For legal advice, you need to hire your own lawyer.  I am a lawyer but I am not your lawyer.]

Tune In Tonight for a Smart Preview of the Obamacare Oral Arguments

Yes, once again that is my pun-tastic way of saying I am going to be on John Smart’s radio show.  One thing that strikes me as funny when talking about him is that despite a wide political difference, on a lot of things we think very much alike.

I am going to be on around 9:15ish Eastern time, if you only want to tune in for me, but you know what?  Don’t.  He is truly an independent thinker and he has views worth listening to.  And if you care to listen, here is the link.  Supposedly people will be able to listen there, somehow, at the time.  And the topic will be previewing the Obamacare oral arguments.

I am actually seriously thinking of taking some time out to go and watch those arguments, except as I understand it they don’t let anyone just sit and watch.  They let you come in, watch for like 2 minutes and then shuttle you out.  Which really kind of misses the point.  But I believe they will release the audio of the hearing and I will definitely be listening to that as quickly as I can.

Just to preview, the one to watch is Kennedy.  While it is dangerous trying to read tea leaves like this, well…  we’ll probably do it anyway and his leaves are the one to read.  As one wag put it, this is Kennedy’s Constitution, and we just live under it.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

Bin Laden’s Plan to Ruin America: Make Joe Biden President!

Now, look, we should not make choices among candidates based on this sort of thing, but gosh, this is probably going to result in some awkwardness in the White House:

Before his death, Osama bin Laden boldly commanded his network to organize special cells in Afghanistan and Pakistan to attack the aircraft of President Obama and Gen. David H. Petraeus.

“The reason for concentrating on them,” the al-Qaeda leader explained to his top lieutenant, “is that Obama is the head of infidelity and killing him automatically will make [Vice President] Biden take over the presidency. . . . Biden is totally unprepared for that post, which will lead the U.S. into a crisis. As for Petraeus, he is the man of the hour . . . and killing him would alter the war’s path” in Afghanistan.

(Source).  My guess is Obama secretly had a laugh, and the secret service agent briefing Biden drew the short straw.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

Friday Frivolity: “Batman, You Sonofabitch!”

On a day we hear of George Clooney getting arrested (I won’t be joking about it, because stopping the genocide in Sudan is actually a serious and noble issue), we get to look back at his... um, less successful movie outing.

You might think that there is nothing that can be done to redeem the movie Batman and Robin, and on this point you are wrong.  It can be fixed... with a cheesy Phantom of the Opera style musical number:

I think what makes it work for me is the dead on imitation of how Ahnold would sound holding a long note.  Or trying to.

It has to be the funniest thing to happen in Batman’s universe since... well... this:

Yes, yes, the infamous shark repellant scene in the 1960’s Batman movie.  For some reason they recently released this movie on blu-ray (seriously, why?), and a long time ago I saw where Conan O’Brien argued that the 1960’s Batman show was actually a brilliant comedy—that the stuff that seemed ridiculous as we were grew out of the show was intentionally ridiculous.  Myself, I don’t know.  On one hand it is pretty absurd that there are multiple types of repellant.  And the shark blowing up (you find out later it was rigged to blow—that all of this was one of the most awkward assassination attempts in history, unless you count all the ways we tried to kill Castro)... it’s hard not to think it is a joke.  But on the other hand, the pacing of that scene is awful.  You watch the shark get creases in its foam from the rope ladder as Robin, supposedly an acrobat, makes an incredibly awkward climb down, complete with his cape batting Batman in the face.  I think maybe the best explanation is that some of the people on the show understood it was a joke and played that up, but others did not.

But it’s really hard not to catch the pitch perfect comic timing in this bit:

Um, yeah, Batman that isn’t exactly going to tamp down those rumors about your relationship with Robin.

And Julie Newmar is cute, but it’s really hard to beat this Catwoman:

 

(That is referred to as Rule 5, folks.)

That would be how she was portrayed in Batman: Arkham City.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.

Gloria Allred Hypocritically Tries to Get Limbaugh Prosecuted Under a Sexist Law

Update: Thanks for the linkage from Overlawyered, which correctly notes it might be "counterproductive" to give Ms. Allred additional publicity.  I agree normally, but this is too thuggish to ignore.  They also link to this Volokh piece which goes into more depth about problems with this law.

For some on the left it is not enough to disagree with what someone said.  No they want to see that person destroyed, terrorized and imprisoned, for holding an opinion that they don’t like.  Not everyone on the left, of course.  There are decent liberals who believe in freedom of speech, but there is this creeping fascist tendency.

A case in point is Gloria Allred.  She was last seen simulating masturbation with a baseball bat on national television (yes, really).  And now she has jumped into the Limbaugh/Fluke controversy with a demand to prosecute Limbaugh for calling Fluke a slut and a prostitute.

Let’s take a moment to review what Limbaugh actually said, because it is important.

"What does it say about the college coed who goes before a congressional committee and essentially says that she must be paid to have sex?" Limbaugh continued, “It makes her a slut, right?  It makes her a prostitute. She wants to be paid to have sex."

So based on this statement Gloria Allred, ostensibly representing the Women’s Equal Rights Legal Defense and Educaton Fund (of which she is the President) has demanded that Rush Limbaugh be prosecuted for saying this under Florida Statutes §836.04 which states that:

836.04  Defamation.—Whoever speaks of and concerning any woman, married or unmarried, falsely and maliciously imputing to her a want of chastity, shall be guilty of a misdemeanor of the first degree, punishable as provided in s. 775.082 or s. 775.083.

You can indeed read the letter she wrote demanding this prosecution, here.

Does anyone else see the problem with this law?  It’s very language contains a discrimination based on sex—it applies only to imputations of a lack of chastity against women.  And I thought that this legal organization—and Ms. Allred herself—was opposed to sex discrimination.  Indeed Allred’s site states that she is “a tireless crusader against discrimination in all areas of our lives.”  Oh, except in the criminal law in Florida when a prominent Republican or conservative is involved.  So this attack on Limbaugh is deeply unprincipled as is any "feminist" who cheers it on.

And this is probably a fatal flaw in the statute itself.  I am not being ideological when I say this, but almost any lawyer will tell you that this law is unlikely to be upheld under the Equal Protection Clause of the Fourteenth Amendment which prohibits many forms of discrimination.  As the Supreme Court has repeatedly said “classifications by gender must serve important governmental objectives and must be substantially related to achievement of those objectives[.]”  U.S. v. Virginia, 518 U.S. 515 (1996).  It’s important to note that in this case the test wouldn’t apply to the general concept of protecting a person’s sexual reputation, but instead the legislature’s decision to protect a woman’s sexual reputation and not a man’s.  That discrimination has to serve this important governmental purpose, and in my opinion it is unlikely that any court will find that it does.

But sharp eyed lawyers will know that U.S. v. Virginia didn’t even apply this standard, but went with even tougher-sounding language: “Parties who seek to defend gender-based government action must demonstrate an "exceedingly persuasive justification" for that action.”  Court observers interpret this as introducing a new, even higher standard for consideration, but still below the strict scrutiny afforded racial classifications.  For my money, I am not sure if it is supposed to be a higher standard or a clarification of what the old standard means, but I am open to that interpretation.

What kinds of discrimination pass would muster?  Bluntly I think it would have to be something that involves almost tautological truths.  For instance, it will never be considered unlawful sex discrimination to place urinals in men’s rooms and not women’s rooms.  It is unlikely to be considered sex discrimination to provide prostate exams for men only, or for breast exams for women only.  And indeed I doubt the Supreme Court will find that separate bathrooms by sex is sex discrimination the way bathrooms separated by race was considered racial discrimination.

So I can practically see the Supreme Court opinion talking about how this law was based on outdated mores and so on.  One fully expects this passage from Mississippi University for Women v. Hogan, 458 U.S. 718 (1982) to be cited:

Although the test for determining the validity of a gender-based classification is straightforward, it must be applied free of fixed notions concerning the roles and abilities of males and females. Care must be taken in ascertaining whether the statutory objective itself reflects archaic and stereotypic notions. Thus, if the statutory objective is to exclude or “protect” members of one gender because they are presumed to suffer from an inherent handicap or to be innately inferior, the objective itself is illegitimate.

The idea that it is some great harm to attack he sexual purity of a woman, but not a man, is precisely the kind of archaic and stereotypic notion that the courts will frown upon.

And it is worth noting that this law is indeed very rarely enforced and once when it was challenged based on the sex discrimination in the statute prosecutors withdrew the charge.

And one thing that is important to note is that Allred almost certainly knows this law is unlikely to survive any challenge under the Equal Protection Clause, or at least she would if she took five seconds to think about it.  So she is urging Limbaugh to be prosecuted, forcing him to spend time and money, when she knows—or should know—that any prosecution would be unsuccessful.  It is thuggery, pure and simple, mixed with publicity seeking.

And there is indeed another problem with this law, although it is less gloriously ironic than Allred pushing the enforcement of a sexist law: it probably isn’t defamation.  Go back and read Limbaugh’s comments again.  His entire knowledge of this woman’s sexual activity amounts to his knowledge that she wants to get birth control pills.  And based on that fact alone (“It makes her”), he calls her a slut, and based on the fact she wants us to pay for it, he calls her a whore.  This was an uncharitable assessment, and he is right to have apologized for it, but it was his opinion based on undeniable facts and thus is protected speech as “fair comment.”  It was wrong, but it is legally protected.

By the way, do you know how epically silly this is?  A Daily Koser agrees with me.  I discovered this just as I was wrapping up the post:

The Florida statute (which bans all anonymous publication, including many writers on DailyKos) is one of the worst examples of sexist paternalism, pretending to “protect” women by treating them like weaklings needing the defense of the state against offenses to the virtue. It's no small irony that at the bottom of Allred's letter is the text of the never-adopted Equal Rights Amendment: “Equality of rights under the law shall not be denied or abridged by the United States or by any state on account of sex.” Clearly, a law that protects the “chastity” reputation of women but not men fails to meet that equal rights standard....

Sadly, some of the outrage against Limbaugh reflects the very same sexist notions embodied in the Florida law invoked by Allred, that the "chastity" of women is what makes them worthy.

Amen to that, and good catch on the Equal Rights Amendment language.  I frankly missed it.

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* As a side note, Hogan involved a man applying to an all women university so there is no question that the rule applies both ways—to laws that discriminate against men and women.  Indeed this was over a claim that this was a form of an affirmative action, to provide women a “room of their own” and so on.  This probably had a lot to do with the fact that the school in question was a school of nursing, not exactly a profession where women have faced discrimination and indeed one could easily argue that by encouraging women to be nurse and not doctors, Mississippi was not combatting sexism, but encouraging it.

Anyway, in Hogan the Supreme Court has made it pretty clear that there probably cannot be a single gender school, even if there is a separate but equal choice for the other gender.  The Virginia case was even easier because there wasn’t even a separate but equal school for women to match up with the then men-only Virginia Military Institute.

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Follow me at Twitter @aaronworthing, mostly for snark and site updates.  And you can purchase my book (or borrow it for free if you have Amazon Prime), Archangel: A Novel of Alternate, Recent History here.  And you can read a little more about my novel, here.