Category Archives: Courts

Too Many Laws

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Here’s an example of the over-complexity that results from too many laws on our books, and of the injustice that is inflicted as a result of that over-complexity.  Jacob Gershman, writing in The Wall Street Journal‘s Law Blog describes an instance of rape that isn’t rape.

Here are two cases.  In one, a man has sexual intercourse with a woman by tricking her into believing he was, in fact, her boyfriend.  In another, a man has sexual intercourse with a woman by tricking her into believing he was, in fact, her husband.

A lower court convicted the man in the first case of rape, and an appellate court reversed—no rape had occurred.  Here’s the law on that, as described by that appellate court:

…a victim of a crime is deemed “unconscious” when he or she is “not aware, knowing, perceiving, or cognizant of the essential characteristics of the act due to the perpetrator’s fraud in fact.

But pretending to be someone else is a fraud of “inducement” not “fact.” That means that the jury couldn’t convict [the…man] on that basis[.]

A married woman, similarly tricked (differing only by the…man…pretending to be husband rather than boyfriend), would get the rape conviction, as the appellate court also pointed out in its ruling in the first case.

…California’s penal code “provides that rape includes an act of sexual intercourse ‘[w]here a person submits under the belief that the person committing the act is the victim’s spouse, and this belief is induced by any artifice, pretense, or concealment practiced by the accused, with intent to induce the belief.'”

California’s Attorney General Kamala Harris is on the case, though.

The evidence is clear that this case involved a nonconsensual assault that fits within the general understanding of what constitutes rape.  This law is arcane, and I will work with the Legislature to fix it.

Look for yet another law on the books, rather than a merging of these two laws into a single one with a unified definition of rape.

Obama’s Freedom

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From a person calling herself Jezebel comes this:

Ugh, you rubber cement-huffing nincompoop….

Anyway, I’m all for Hobby Lobby (and all other organizations that think birth control is totes gross) ignoring the law.  If they keep this up for long enough, we won’t have to worry about the fiscal cliff.

And I suppose that now’s as good a time as any to confess publicly that “Hobby Lobby” is the nickname I’ve given my vagina.

Name calling as pseudo-logic.  How very Progressive of her.

And this pseudo-argument from Think Progress, in their post misleading titled “Hobby Lobby To Deny Contraception To Employees, Ignoring Court Order:”

This ignores two obvious points—first, that Plan B is not an ‘abortion-inducing’ drug, as Hobby Lobby claims, and second, that the company may well end up paying more to avoid covering contraception than they would simply providing access.  It also takes a twisted view on the ‘Freedom of Religion’ argument; the company is actually forcing its owner’s religious beliefs on all employees, no matter their personal religious views.

I’ll ignore their first point as irrelevant (Look! Shiny!) and proceed to their second, which is blatantly cynical.  Think Progress actually is arguing in all seriousness that religious freedom—any freedom—is solely a pecuniary, fiscal thing, having nothing to do with principle or morality.  How little the Left understands individual liberties and duties.  How little the Left understands the threat to their own freedoms Big Government represents.

But their argument begins and ends with a disingenuously false premise.  Of course, the owners of Hobby Lobby are not at all denying contraception to their employees, nor are they imposing their own religious beliefs on anyone.  Those employees remain free to obtain birth control on their own, to obtain contraceptive “coverage” from other insurers, to engage in any other activity, all in accordance with their own religious beliefs.

Moreover, this refusal to participate in the HHS intrusion inflicts no other harm on their employees, either, including the costs of contraception now to be borne by those employees.  Sandra Fluke’s foolish remarks notwithstanding, contraception is freely available, and nearly free, for instance for $7/mo at any Walmart.  Condoms (the forgotten contraceptive) are just as cheap.

Hobby Lobby’s owners are simply exercising their 1st Amendment rights (that conveniently ignored clause that says, “Congress shall make no law…prohibiting the free exercise [of religion].”)  They’re simply declining to participate in a market for materials their religious beliefs hold to be immoral, while not at all impacting the ability of anyone else to participate in exactly that market.

But there’s another problem here.  When Supreme Court Justice Sonya Sotomayor refused a request from Hobby Lobby for a temporary injunction staying enforcement of HHS’ contraception insurance rule pending adjudication of the primary case, she continued the injustice rather than mitigated it.  In the balance was whether Hobby Lobby’s owners should be forced to suffer enormous economic damage or to violate their religious teachings, and so to suffer enormous moral damage, against whether Hobby Lobby’s employees should be required to go elsewhere for extremely low cost contraception and emergency contraception.  And this balance would have been purely temporary: resolution through the courts is in progress.

Sotomayor’s reasoning is instructive.

While the applicants allege they will face irreparable harm if they are forced to choose between complying with the contraception-coverage requirement and paying significant fines, they cannot show that an injunction is necessary or appropriate to aid our jurisdiction[.]

No.  $1.3 million in daily fines aren’t at all “irreparable harm.”  The moral damage of violating religious principles isn’t harmful at all.  After all, holding at bay that irreparable harm isn’t at all necessary or appropriate to aid the Court’s jurisdiction.  Never mind that it is the purpose of the Court to decide cases in accordance with the law—here the Constitution—and so to minimize overall damage.

And

Even without an injunction pending appeal, the applicants may continue their challenge to the regulations in the lower courts.

But pay, in the meantime, the frightful fiscal or moral cost that Sotomayor so casually dismisses.

Instead, Justice Sotomayor’s ruling said, “Kneel and bend your neck, sucker.  We already know the right answer.”  She carefully chose not to take the low cost—morally, fiscally, or legally—path.

But that’s freedom, Progressive style—Obama style.  Do it our way; we’ll take care of you.  But if you’re really so stupid as to disagree with us, we’ll vilify, demonize, you.  Because, in the first place, logic has no place in the discussion, and in the second place (yes, as in secondarily), your freedom is ours to determine.

Update: A Federal district judge appears to have a better understanding of relative costs and legal efficiency than does our Supreme Court Justice:

US District Judge Lawrence Zatkoff ruled Sunday in favor of Tom Monaghan and his Domino’s Farms Corp., near Ann Arbor.  Monaghan, a devout Roman Catholic, says contraception isn’t health care but a “gravely immoral” practice.

Zatkoff granted Monaghan’s emergency motion for a temporary restraining order until a final decision is made in the case.

Our Judiciary’s Selective Enforcement

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The Ninth Circuit strikes again.  The Ninth agreed with a Federal district court that an Idaho law that lets state authorities bring criminal charges against pregnant women who seek abortions by using medications purchased online would likely be found unconstitutional (the Ninth Circuit ruling can be found here).  The Ninth, however, overruled the lower court’s enforcement injunction, saying it was too broad.  Instead, the Ninth substituted its own injunction: state authorities are enjoined only from enforcing the Idaho law against the particular woman who brought the case, not from enforcing the law everywhere else.

The WSJ‘s Law Blog provides a summary of the case:

In May 2011, Mark Hiedeman, the prosecuting attorney in Bannock County, Idaho, brought criminal charges against Jennie Linn McCormack, an unmarried mother of three, after she purchased medications over the Internet in 2010 to terminate her pregnancy.  There are no licensed healthcare providers who offer abortions in southeastern Idaho and Ms McCormack, who didn’t want to have additional children, claimed the medications were prescribed by a physician outside of Bannock County.

The lower court set aside the case against McCormack and enjoined the prosecutor from enforcing the law against anyone on the grounds that it was unconstitutional.

Set aside your views of abortion for a moment, and consider what this appellate court has done vis-à-vis the injunction.

The law under which Hiedeman attempted to prosecute McCormack was found by the district court to be unconstitutional, and the Ninth agreed: it is likely be found unconstitutional.  Yet the Ninth then overruled the district court’s injunction against enforcing that law at all.

Their logic centers on the premise that the law has not yet, in fact, been found unconstitutional, and so the original broad injunction went too far.  Yet injunctions, by their nature, are temporary—even permanent ones, which can be withdrawn for any number of reasons at any later date when they’re found no longer to be useful.

So where is the harm done by the lower court’s broader injunction?  The state is harmed by not being able to enforce a law that is, nominally, legitimate.  Women are harmed by being threatened with prosecution—and potentially prosecuted and convicted—for acting as McCormack did and who is protected from prosecution for those same actions by the injunction as modified by the Ninth.  The women who are under the gun here, also are in a time-sensitive situation: their pregnancy must be terminated promptly, or not at all.  We the People are harmed by this court’s announcement that selective enforcement of a law, as a matter of state policy, is entirely legitimate.

This is a rule of law question, regardless of what we might think of the legitimacy of abortion itself.

Voting Rights

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From The Wall Street Journal‘s Law Blog comes this hopeful sign.  A number of states have filed a Friend of the Court brief in support of South Carolina as that state prepares to defend itself against the Obama administration’s assault on its effort to protect the sanctity of the vote.  The money paragraphs in the brief speaks is this, and it needs no further comment from me.

Because Section 5 [of the Voting Rights Act of 1965] applied arbitrarily to the Covered Jurisdictions [i.e., those states subject to the VRA], none of which uses discriminatory tests or devices, and many of which have higher voter turnout, or lower disparity in minority voter turnout, than many of the uncovered jurisdictions, the Covered States are denied the fundamental principles of equal sovereignty and equal footing.  Because the VRA’s purpose is to eradicate voting discrimination for all United States citizens, treating states differently is not congruent with the Act’s purpose.

The brief, BRIEF OF ARIZONA, ALABAMA, GEORGIA, SOUTH CAROLINA, SOUTH DAKOTA, AND TEXAS AS AMICI CURIAE IN SUPPORT OF PETITIONER, can be found here.

More Federal Dishonesty

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This time, it’s an assault on our veterans, using their Mount Soledad Veterans Memorial Cross as the cudgel.  This is a case where the 9th Circuit Court of Appeals has ruled the veterans’ memorial unconstitutional because it uses a cross—a globally recognized symbol of a fallen soldier, as well as a global religious symbol—at the center of its memorial display.  Last month, the Supreme Court refused to hear an appeal of the matter.

Now we learn that after President Obama had his Solicitor General join the appeal, which increased the likelihood the Court would take the case (but did not guarantee it, as we’ve just seen), Obama had his DoJ engage in what would seem to be ex parte discussions with the ACLU—the opposition in this case—without the major plaintiffs, the Mount Soledad Memorial Association, present.  This also had the effect of cutting out the MSMA’s legal representation, the Liberty Institute.

This is an atrocious attack, not only on our veterans’ memorial, but on the concept of our right to petition our government for redress of grievances, and on our right to representation in the cases we have before any court of law.

Whatever you think of the memorial itself, feel free to call Attorney General Eric Holder’s office at 202-514-2001 and let him know, in no uncertain terms, your…dismay…at his underhanded duplicity.  While you’re at it, call your Congressman and both Senators with the same message.

And call President Obama: 202-456-1111 or TTY/TTD: 202-456-6213.