Category Archives: Learning To Love The Law

Early Harvest


And, so, just like that, we're headed, will-we-or-nil-we, towards Litha.

The great Sumer Solstice.

The fire festival, when Sol Invictus stands highest in the Summer sky.

In my tradition, this is the Feast of the First Harvest. (Is it so, for you, as well?) And so I started my day at the local farmers' market, buying (finally!) ripe and green tomatoes, corn for roasting, cucumbers for (mixed with my own parsley and mint) tzadziki, local pickles, and lettuce for which I imagine many a poet could compose odes. I came home and had fried green tomatoes and iced tea (Southern breakfast of champions) on my screen porch and then went out to weed the herb bed. After several hours of v. aromatic weeding, I came inside to make various kinds of simple syrup for all of July's cocktails: mint, basil, lavender, and dill. I harvested enough sage to make smudging sticks for everyone in my circle and enough dill, sage, and tarragon to make flavored butters for my own use and for Son and DiL. I am going to be so sore tomorrow that I may not be able to move. Good thing it's a day of writing, reading, doing more research.

For me, the first harvest is crucial.

We're here, halfway through the calendar year. We've either achieved some of the goals that we thought about/set back at Samhein/Yule, or we haven't. It's a good time to take stock, weed out the (fucking!) sorrel, (Kali-blasted!) bindweed, and (goddess-damn-it!) maple seedlings, and to begin to cut and use the lavender, basil, mint, and dill. It's time to decide if we need a new planting of basil (time on the treadmill, hours writing prose at work, focus on our family) or if we need to plant something else (learning runes, walking outside, networking, meditation) entirely.

We'll celebrate several later harvests, but, by then, the chance to correct course becomes more and more attenuated. Every ancestral cell in my Scandanavian-RNA body adores these longer, longer, longer days and shorter nights. And yet, and yet, and yet, the old women whose genes live on in me: those old women survived those long Winters because they knew how to pay attention to the early harvests and correct course if needed.

Here are my early harvest course corrections: Even more time on the treadmill, lots more time polishing legal prose, more spontaneous fun, and even more time at my altar.

What's up for you?

Picture found here.

Early Harvest


And, so, just like that, we're headed, will-we-or-nil-we, towards Litha.

The great Sumer Solstice.

The fire festival, when Sol Invictus stands highest in the Summer sky.

In my tradition, this is the Feast of the First Harvest. (Is it so, for you, as well?) And so I started my day at the local farmers' market, buying (finally!) ripe and green tomatoes, corn for roasting, cucumbers for (mixed with my own parsley and mint) tzadziki, local pickles, and lettuce for which I imagine many a poet could compose odes. I came home and had fried green tomatoes and iced tea (Southern breakfast of champions) on my screen porch and then went out to weed the herb bed. After several hours of v. aromatic weeding, I came inside to make various kinds of simple syrup for all of July's cocktails: mint, basil, lavender, and dill. I harvested enough sage to make smudging sticks for everyone in my circle and enough dill, sage, and tarragon to make flavored butters for my own use and for Son and DiL. I am going to be so sore tomorrow that I may not be able to move. Good thing it's a day of writing, reading, doing more research.

For me, the first harvest is crucial.

We're here, halfway through the calendar year. We've either achieved some of the goals that we thought about/set back at Samhein/Yule, or we haven't. It's a good time to take stock, weed out the (fucking!) sorrel, (Kali-blasted!) bindweed, and (goddess-damn-it!) maple seedlings, and to begin to cut and use the lavender, basil, mint, and dill. It's time to decide if we need a new planting of basil (time on the treadmill, hours writing prose at work, focus on our family) or if we need to plant something else (learning runes, walking outside, networking, meditation) entirely.

We'll celebrate several later harvests, but, by then, the chance to correct course becomes more and more attenuated. Every ancestral cell in my Scandanavian-RNA body adores these longer, longer, longer days and shorter nights. And yet, and yet, and yet, the old women whose genes live on in me: those old women survived those long Winters because they knew how to pay attention to the early harvests and correct course if needed.

Here are my early harvest course corrections: Even more time on the treadmill, lots more time polishing legal prose, more spontaneous fun, and even more time at my altar.

What's up for you?

Picture found here.

Early Harvest


And, so, just like that, we're headed, will-we-or-nil-we, towards Litha.

The great Sumer Solstice.

The fire festival, when Sol Invictus stands highest in the Summer sky.

In my tradition, this is the Feast of the First Harvest. (Is it so, for you, as well?) And so I started my day at the local farmers' market, buying (finally!) ripe and green tomatoes, corn for roasting, cucumbers for (mixed with my own parsley and mint) tzadziki, local pickles, and lettuce for which I imagine many a poet could compose odes. I came home and had fried green tomatoes and iced tea (Southern breakfast of champions) on my screen porch and then went out to weed the herb bed. After several hours of v. aromatic weeding, I came inside to make various kinds of simple syrup for all of July's cocktails: mint, basil, lavender, and dill. I harvested enough sage to make smudging sticks for everyone in my circle and enough dill, sage, and tarragon to make flavored butters for my own use and for Son and DiL. I am going to be so sore tomorrow that I may not be able to move. Good thing it's a day of writing, reading, doing more research.

For me, the first harvest is crucial.

We're here, halfway through the calendar year. We've either achieved some of the goals that we thought about/set back at Samhein/Yule, or we haven't. It's a good time to take stock, weed out the (fucking!) sorrel, (Kali-blasted!) bindweed, and (goddess-damn-it!) maple seedlings, and to begin to cut and use the lavender, basil, mint, and dill. It's time to decide if we need a new planting of basil (time on the treadmill, hours writing prose at work, focus on our family) or if we need to plant something else (learning runes, walking outside, networking, meditation) entirely.

We'll celebrate several later harvests, but, by then, the chance to correct course becomes more and more attenuated. Every ancestral cell in my Scandanavian-RNA body adores these longer, longer, longer days and shorter nights. And yet, and yet, and yet, the old women whose genes live on in me: those old women survived those long Winters because they knew how to pay attention to the early harvests and correct course if needed.

Here are my early harvest course corrections: Even more time on the treadmill, lots more time polishing legal prose, more spontaneous fun, and even more time at my altar.

What's up for you?

Picture found here.

A Way Forward for Pagan Prisoners


Blogger is apparently determined to behave in a completely erratic manner. Perhaps it will stay up long enough to let me share a few thoughts on McCollum v. CDCR, 2011 U.S. App. LEXIS 10971, (9th Cir., June 1, 2011). Warning: Some of this will be a little bit "law geeky" but I'll try to keep that to a minimum.

First, the lower court was ruling on a summary judgment motion. That's a motion that you make, generally before the trial starts, that asks the court to dismiss the complaint (and avoid the cost and trouble of a trial) because, even if the person complaining proved everything that they say they can prove, they still wouldn't be entitled to recover anything. In essence, they have no cause of action. The lower court agreed with CDCR that McCollum (and the prisoners suing with him) had no case. McCollum appealed to the United States Court of Appeals for the Ninth Circuit, which agreed with the lower court. Primarily, as to McCollum, the Ninth Circuit held that he lacked standing on most of his claims and couldn't prevail on his others. And the prisoners had either failed to exhaust their claims, let too much time go by, or had dropped their claims so that the appeal could go forward.

So that's two strikes on this approach. But no court has really had a chance to rule on the merits of this case -- the actual issue of whether it comports with the Constitution and other laws for California to pay chaplains of some religions and not others. And, the real goal here is not to prove whether Rev. McCollum or any other specific person has standing to sue, but to get equal treatment for Pagan prisoners and chaplains. I'd hazard to say that Rev. McCollum would agree with me.

Let me say a little bit about standing. I've seen standing described in some blog posts and comments about this case as a "technicality." But standing is a bedrock foundation of our legal system. Most of our federal courts (including the Ninth Circuit) exist because Article III of our Constitution says:
The judicial Power of the United States, shall be vested in one supreme Court, and in such inferior Courts as the Congress may from time to time ordain and establish. The Judges, both of the supreme and inferior Courts, shall hold their Offices during good Behavior, and shall, at stated Times, receive for their Services a Compensation which shall not be diminished during their Continuance in Office.

The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution, the Laws of the United States, and Treaties made, or which shall be made, under their Authority;—to all Cases affecting Ambassadors, other public Ministers and Consuls;—to all Cases of admiralty and maritime Jurisdiction;—to Controversies to which the United States shall be a Party;—to Controversies between two or more States;—between a State and Citizens of another State;—between Citizens of different States;—between Citizens of the same State claiming Lands under Grants of different States, and between a State, or the Citizens thereof, and foreign States, Citizens or Subjects.

Our system of limited governmental powers applies to Article III courts, as well as to the President and Congress. Article III courts can only adjudicate legal disputes in "Cases" or "Controversies." Thus, if a court simply doesn't like a law that Congress passes, it can't issue an "advisory opinion" and say what the court thinks is wrong with the law. It has to wait until litigants bring a proper suit over the law. As SCOTUS very recently explained in Camreta v. Greene, 2011 U.S. LEXIS 4016 at *15 (2011):
To enforce this limitation [on courts' powers], we demand that litigants demonstrate a "personal stake" in the suit. The party invoking the Court's authority has such a stake when three conditions are satisfied: The petitioner must show that he has suffered an injury in fact that is caused by the conduct complained of and that will be redressed by a favorable decision. (internal citations and quotations omitted).

Standing is what stops your nosy neighbor from suing the neighborhood kids for trespassing because they walk across your lawn, when it's ok with you for the kids to do that. It's what keeps "activist" judges from issuing opinions outlawing abortion when no one has brought a suit before them. Yes, standing sometimes seems unfair. It prevents someone who cared enough about an issue to hire a lawyer, bring a suit, and pursue a case from having a day in court. But it's what keeps our tripartite system of government in balance; it's not a technicality.

At this point, McCollum and his lawyers have several choices. First, they can ask the same Ninth Circuit panel that issued this opinion to grant rehearing. That's, IMHO, a long shot in this case. (Rehearings are rarely granted, in any event.) If one judge had dissented, you'd figure that you only had to get one of the other judges to change hir mind. But there was no dissent here. Or, if the court had just gotten something factually or legally wrong (thought that the light was red when everyone in the case agreed that it was green, thought that the law said "X" when it really says "Not-X"), you might file for rehearing. You can do that and then, afterwards, go to the Supreme Court if you're still not happy, so it's not an either/or proposition. It's generally low risk, in that if the court denies the rehearing, they don't usually write another long opinion and give you 15 more reasons why you're wrong. But it's just not likely in this case. Similarly, McCollum can make a suggestion to the entire Ninth Circuit for a rehearing en banc, but that's probably even more unlikely. This issue just isn't interesting to enough of the judges on the Ninth Circuit. People often file both a request for rehearing and a suggestion for a rehearing en banc, so McCollum can do both.

Second, McCollum can ask the Supreme Court to hear his case (either after seeking rehearing or right now). The Supreme Court is unique, in that it doesn't have to hear any case and doesn't have to explain its reasons for not hearing a case. Lawyers call the process of asking SCOTUS to hear a case "seeking certiorari" or "cert." Rule 10 of SCOTUS' rules explains that the Court is most likely to accept a case when there's a split among the circuit courts -- for example, if the Ninth Circuit held "no standing," but the First and Third had held that there is standing in very similar cases -- or in cases of national importance (think, grrrr, Bush v. Gore). The key language from Rule 10 is:
A petition for a writ of certiorari is rarely granted when the asserted error consists of erroneous factual findings or the misapplication of a properly stated rule of law.

McCollum likely would be arguing that the Ninth Circuit misapplied a properly stated rule of law. So this case is unlikely to get cert.

I've seen some people say that SCOTUS won't grant cert. (guaranteed 100%, no how, no way!) in a case about standing, but that's incorrect. Just last week, SCOTUS issued an interesting Ninth Circuit standing case, Camreta v. Greene, 2011 U.S. LEXIS 4016 (2011). But McCollum v. CDCR, unlike Camreta v. Greene, is pretty cut-and-dry standing stuff, and if there were a split among the circuits, I'd have expected that to be argued in briefs and dealt with in the Ninth Circuit's opinion. And prisoners' First Amendment rights, sadly, aren't considered issues of national importance.

Finally, I'd worry -- a lot -- about letting this SCOTUS, which recently held that the cross is a good enough religious symbol to memorialize soldiers of every religion, get ahold of this case and explain why a Catholic priest is good enough for every Pagan prisoner. (The court has only gotten more conservative since that opinion.) In other words, if they DID grant cert., it would be to work more mischief, not to help Pagans. Sometimes, you just have to be willing to quit while you're only so far behind.

So should McCollum just give up? I don't think so.

My reading of the opinion is that Judge Schroeder (a Carter appointee, placed on the panel when Judge Thompson died, so that this panel was composed of Judge Schroeder and Judge McKewon, another Carter appointee, and Judge Silverman, a Clinton appointee; you won't get a more sympathetic panel than that) was careful to lay out an eventual path to victory. No, it's not as emotionally satisfying as saying, "Fine! We'll go all the way to the Supreme Court!" but it's more likely to actually, you know, work. I hope that those willing to raise money, write letters, and do magic (raises hand!) for a run at SCOTUS will be willing to get behind this slower, more likely effort.

Here's what I think Judge Schroeder was saying. I'm referring to the "slip opinion" published at the Ninth Circuit's home page and that's where the page numbers that I'll refer to come from.

First, the Ninth Circuit rejected the notion that there is a "Five State-Sanctioned Faiths Policy," as argued by McCollum.* Rather, the court found that:
over time, the CDCR paid-chaplaincy program has evolved to include these five faiths. Officials indicate future evolution is envisioned by inmate needs. Slip op. at 7165.

We need to focus on that "future evolution" driven by "inmate needs."

The opinion goes on to note that paid chaplains were added for Muslim prisoners in 1981 and for Native Americans in 1989 due to "perceived inmate need" and a "consent decree". Id. at 7166. What led CRDC to "perceive a need" for a Muslim chaplain and what led to the consent decree re: Native Americans? How can McCollum and the rest of us make a case that Pagan prisoners are now similar to Muslims in 1981 and Native Americans in 1989?

The opinion cites the 5 factors that the CRDC says it will apply and these include "religious group size." (In 2002, there were 598 Wiccan prisoners and only 306 Jewish prisoners, but CRDC paid rabbis.) What can we show right now? Can we fit within the other factors, such as "alternative means of accommodation"? It's one thing to say that a Lutheran minister can oversee a Methodist Sunday service; it's got to be easier to show that a Catholic priest, whose religion holds that one may not "suffer a Witch to live," can't effectively supervise a prisoner-led Wiccan Samhein ritual.

Then, at slip op. 7169-70, there's a discussion about why the claims of the prisoners, themselves, as opposed to McCollum, were either not fully exhausted or were time-barred. "Exhaustion" is (oh, yes, in more ways than one) a legal term. It means, for example, that you can't, generally, run right to the Supreme Court with your complaint. You have to start at the lowest level and only work your way up if you can't get relief below. For prisoners, this includes filing a complaint with the prison and giving the prison notice of the specific relief -- here, a paid Wiccan chaplain -- that you want. You've got to explain why a paid chaplain, rather than a volunteer one, is necessary. As the opinion hints, Mr. Collins, a prisoner, did that. He wanted a visit in hospital from a Wiccan chaplain, but was told that he couldn't have one because his "chaplain was not a regular paid chaplain at San Quentin, i.e., not Christian/Protestant/Catholic, Muslim, or Native American." Id. at 7169. The problem was that Collins made this complaint a long time ago, and our laws impose time limitations; you can't sit on your case for years and then sue on it. It's not fair to the other side, which may have lost evidence that they'd have saved if they'd known you were going to sue.

But here's where, IMHO, Judge Schroeder sets out a clear path that shows how to build a successful case. Pagans need to request visits from Pagan chaplains (in hospital, when they are concerned about their family members, before appeals and other trials, etc.) and document that they get denied because their chaplains are not "regular paid chaplains." They'll probably also have to accept a visit from, say, a Catholic priest who counsels them about the evils of Witchcraft and then show why that didn't work for them, because CDCR's policy seems to envision paid chaplains ministering to prisoners outside their religions when necessary. And then, with the help of McCollum and those willing to raise funds and do magic, etc., they'll have to pursue their claims in a timely manner.

This is the work of a number of years. It's not nearly as likely to sustain long-term Pagan interest as, say, a run at SCOTUS, which, as I've noted above, is, at best, a pipe dream and, at worst, a way to have this temporary loss turned into a complete and total loss that applies nationwide and not just to California. But it's how civil rights have always been won. Thurgood Marshall laid out a long-term, multi-year, incremental route to Brown v. Board of Education. And he won.

I'll say what I've said before. I'm grateful to Rev. McCollum and his able pro bono (that means: unpaid, even in these difficult economic times) counsel at Jones Day for standing up for Pagans. Thanks to them, we've now got a Ninth Circuit opinion that lays out a clear path to eventual victory. It's never fun (oh, no, trust me, it's not) to lose an appeal. These cases take a lot out of you, and you pour everything you've got into them. You show up, do your best, argue before really brilliant judges, and, sometimes (damn it!), you lose. It hurts. A lot. And then, if you're really committed to a cause, or if you're just an honest-to-Goddess advocate all the way down to your marrow, you sober up, say a few more bad words, kick some dust, and figure out how to move forward. You go back, re-read that painful opinion, see what's to be done, dust off your suit, light incense to Ma'at, and get back in the game, in the most sensible and likely-to-succeed manner possible.

That's what I hope that the Pagan community can do here.

Because this fight, like the fight for Wiccan veterans, matters. For all of us.


*For the love of the Goddess, can we quit saying "faith" when we mean "religion"? Paganism isn't a "faith," it's (probably) an umbrella term for various religions, just as "Christianity" is an umbrella term for various religions such as Catholics, Baptists, Lutherans, and Satanists.

Picture found here.

*****************


Update: Several commenters make very good points about the use of the word "Wiccan" in the Ninth Circuit opinion, as opposed to "Pagan." The court said that it was adopting the terminology from McCollum's brief. I don't know, but my guess is that there were two things going on. One is that there's a word limit on briefs, and so people often select one word and note early on that, when they use it, they mean all of a group of things. Hence, "Wiccan" for Druids, Asatru, Reconstructionists, etc. The second thing that I suspect may have been going on was that Wicca tends to be, more and more these days, and especially since the victory over veterans' tombstones, recognized by the outside world as a "real" religion, while "Pagan" is likely to be perceived as a looser term. My understanding is that McCollum is a Wiccan and the thought was likely that the court would recognize Wicca as a "real" religion and, hence, entitled to paid chaplains.

Also, markarios asks about volunteer chaplains. And if the prison system were to, for example, in cases similar to Collins', allow volunteer Pagan chaplains to visit prisoners in the hospital, the prisoners would have a more difficult time showing that they needed to be visited by paid chaplains, although I can think of some reasons why that might matter. In Collins' case, he was sick in the hospital and denied any Pagan chaplain because there were no paid Pagan chaplains, and that's a pretty good, sympathetic case to take up on appeal in a timely manner. There's also some indication that volunteer chaplains have to be supervised by the paid chaplains, and I can think of instances when that could interfere with the prisoners' rights and, again, be worth running up on appeal.

I've revised the rest of the posting in minor ways for clarity.

(I should add, these are my own thoughts, not intended as legal advice, and do not represent the views of anyone else.)

Out of My System


Something deliciously funny and madly ironic happened today and OVER and OVER I typed the snarky email I wanted to send and, then, I deleted it.

With my Ascendent in Gemini, you can't imagine how much Will-with-a capital-W that took.

All of that work with Fire must be paying off. ;)

May it be so for you.

Raise My Social Security Taxes


I have a great job and I love it. And I may as well say this on the night of a Full Moon as any other night.

I worked my ass off, teaching all day and preparing for and going to law school all night -- for six really (really!) long years -- to get it, making an insane commute and coming in near the top of my class, interviewing my (again) ass off [you'd think I'd have a smaller one!], landing a great summer job, making assistant editor of law review, and then landing, at an advanced age, in a first year position where, yet again, I worked my ass off for years in order to prove myself. Those were, IMHO, fair trades, and I would gladly, in Teasdale's words, buy it [all over again] and never count the cost. I love the intellectual stimulation of my job, the atmosphere of the firm where I work, the clients for whom I work, the projects that I help to make happen, and the other lawyers with whom I work. I love the calibre of my opponents; maybe some things feel better than besting people who are really, really good at what they do, but I'd be hard pressed to name them on a day when I've fought off the collective strengths of a bunch of (natch) men who are used to winning because they are so good. I love the demands of the courts in front of which I practice and I love getting paid to research, think, and write. It's what I was born to do and I do it, if I say so myself, pretty damn well. You have to be a huge geek to enjoy doing what I do, and yet, there are nights that I drive home completely mainlining the law and can't go to sleep because I am so excited by what I do. It's not something I post much about on this blog, but it's a big part of who I am.

Which is all a long wind-up to my main point, but also crucial to a preliminary point that I want to make. I make, thank the Goddess, a darn good living and I know that. And I appreciate it and I am grateful for it and there were many years when I did more important work and got paid a whole lot less. And I recognize my responsibility to give back, not only through pro bono hours (which I do, every year, and just finished doing for this year), but also through a program of planned giving to political and charitable causes that I select every year. And I don't apologize to anyone for what I make because, see, e.g., paragraph no. 2 above, I worked, and still work, my ass off for it.

Yet, I've learned that the fastest way in the world to start a war in the Pagan community, to make readers angry, and to trigger all kinds of shadow issues is to post about finances. We may say that we don't believe in sacrifice ["Nor do I demand aught of sacrifice, for behold, I am the Mother of all things and My love is poured out upon the earth."], and that matter is not fallen, but talk about prosperity, financial good sense, or living well, and Pagans often respond not to what you've actually said but to what they hear, coming through the shadows of their own issues about money. Which explains, I hope, my long-winded wind-up to what I'm going to say:

I'm through paying Social Security taxes for the year.

As you may know, there's a "cap" on the amount of income subject to the Social Security tax. After you earn $106,800.00, you stop paying Social Security taxes. I passed that point some time ago.

And, yet, what always strikes me is that I've managed to live pretty damn well during the months that I do pay Social Security taxes. I don't have any debts other than my mortgage. My 401k is fully funded. I've put money into savings. I've paid off my 30-year mortgage at a 15-year rate. I have a house-cleaning service that does most of my housework, a lawn service that seeds and mows my lawn, a Landscape Guy who helps me with my garden, and I shop at Whole Foods and Balducci's as often as not. I get a weekly massage and I head to Georgetown once a month to get highlights from the guy who used to do them for a lovely French actress. And then I go out for oysters & martinis. I can afford to take G/Son to the toy store or the Ren Faire and I can rent all the movies on Netflix that he wants to see. I've spent a lot of money on my garden which, although it is probably an investment in the value of my property, is mostly for my own enjoyment. I've given money to causes that I like and I've helped to make sure G/Son gets the kind of education, organic produce, and sports programs that I wish all children could get. When things come up, be they the need for a new hot water heater or the desire to send money to friends protesting in Wisconsin, I'm able to cover them without really missing a beat. (To be fair, there are things I don't spend money on. I own an 8-year-old, modest, hybrid car and I haven't been on a vacation in a years. I live in a tiny cottage. I have neither a flat-screen tv nor cable and I can go all week without turning on any lights unless I have company. I don't spend a lot on clothes and I don't go out much except for the occasional ballet.) Bottom line, I could pay more taxes and not be miserable, as could all the people who make even more than I do.

And you know, I could go on living pretty well even if I had to pay Social Security tax until August, or October, or even December. Which is my point (and, see, I did have one). I wouldn't work any less intensely or "innovate" any less (seriously, at this level, more money is v. nice, but beating the opposition will keep me from "going Galt," for many, many hours), or be any less interested in making more money (seriously, Moon in Taurus, what more can I say?) if I did have to keep paying Social Security tax.

I don't fancy myself an investment genius. I pay once a year for some professional investment advice and, as soon as I'm through paying the Social Security tax, the delta goes into saving for my retirement, and the difference is that, at least for the time being, that delta benefits my financial advisor and the investment community rather than some old person who needs medicine and rent and would like to buy hir G/Son a new book, or some music lessons, or a pair of soft cotton pajamas. And, the difference is that the money I invest for my retirement can disappear tomorrow in another market meltdown.

And, so I say: "Raise the cap. Keep on taxing me." I make a good living and I worked hard for it and I'd be proud to be able to pay more Social Security taxes now than, say, some school teacher who may not make all year what I've made from January until now. I can afford it and still live a v nice life. I'd rather pay it than see old people live out their last years (I'm going to be there soon), worrying about bills, scrimping all the time, unable to enjoy their retirement. What's happened to America that we want to make old people suffer so that Paris Hilton, or an investment banker, or Hecate Demetersdatter, who already have quite a lot, can get even more? We used to be better than that. We used to believe E pluribus unum; we used to believe that those who've benefitted from the investment of the many into America (and I went to public schools and a state law school, drove on public roads to and from law school, benefitted from the existence of federal agencies and courts, and benefitted in other unnamed ways from the investment of many Americans in America), should give back to America; we used to believe that "United We Stand; Divided, We Fall."

I still do.

Raise the cap on my Social Security taxes.

Picture found here.

Pesky Activist Lawyers


Via Twitter, Atrios highlights an interesting case concerning a jail in South Carolina that has (or perhaps the better term now might be "had), according to an email from a jail staff member, a policy that
our inmates are only allowed to receive soft back bibles in the mail directly from the publisher. They are not allowed to have magazines, newspapers, or any other type of books.

That's right. No Koran. No Pagan Ritual Prayer Book, nada. Just Bibles. Nice First Amendment you've got there, America. The ACLU filed suit and, lo and behold, the federal government sought and was granted permission to intervene in support of the ACLU.

Now, all of a sudden, the jail says that it has a different policy:
Officials at the jail responded to the ACLU lawsuit by saying that they only banned material containing staples and nudity. But the new ACLU motion to block this policy points out that legal pads containing staples were being sold at the jail. It claims that the no staples or nudity policy was "adopted post hoc and in response to this Case", and that it "eliminate[s] access to reading material almost as completely as the 'Bible only' rule".

Anyone who's practiced law for very long has seen this happen. The jail has what it knows is an unconstitutional policy. It doesn't want to give it up, so it looks for some other rationale that will let it achieve the same goal. No explanation for why the staff member seemed to think the policy was rather explicitly different (soft-cover Bibles, direct from the publisher, no magazines newspapers [which don't have staples], or any other type of books"). No, the policy is based on safety and prison control! Staples are dangerous and it's bad to let prisoners see pictures of nudity or bathing suits because, um well, shut up, that's why. One hopes the judge in the case sees this for what it is.

I mention this case because it shows what can be accomplished by the mere filing of a legitimate lawsuit. Once the jail's policies are under scrutiny, jail administrators start scrambling, and scrambling people often look disingenuous. To a judge. We saw a similar case when Pagan activists sued the U.S. Department of Veterans' Affairs over its refusal to allow Pentacles on gravestones. Once you file suit, and get discovery, you find out that the real reason behind the denials and delays and changing requirements is that George Bush doesn't like Witches. And then someone realizes that you'd better settle this case before a judge settles it for you.

All of which is by way of saying that, no, the ACLU doesn't always take all of the cases I might wish that they'd take. But they do manage to do some very good things. And it's important to note that you don't have to be guilty to be in jail. Get arrested and you can get thrown in jail, at least until you make bail or the charges are dropped.

That's why I'm a card-carrying member of the ACLU. Are you?

All Acts of Love and Pleasure


In comments to my earlier posting of this YouTube below, Markarios makes some good points and I thought that I'd post my responses.

First, with Markarios, I agree with the speaker's first point: enshrining religious beliefs in a state constitution is not a good idea. However, watery Pisces and lover of legal prose that I am, I'm not sure exactly where the line gets drawn. I'd vote, were I in the legislature, for constitutional amendments that enshrine, for example, the rights of plants and animals to not be driven to extinction by human profit. I'd enshrine the rights of women to control their own bodies. I'd enshrine the rights of all people to engage in adult, consensual sex of their choice without government intervention. (Maybe "enshrine" is a bad word in this context; say "establish" instead.) And, to be honest, my commitment to those ideals springs from my religion. So while I don't agree that: "Because the Bible (the way some now interpret it) says homosexuality is bad!" is a valid reason to change the state constitution, and while I agree that: "Because the Charge of the Goddess says that all acts of love and pleasure are rituals of the Goddess!" is not a valid reason to change the state constitution, I'm aware that religion sometimes influences the votes of the humans in the legislature. But, yes, like Markarios, I agree that the speaker's first point is the most valid.

Although the speaker is much more eloquent concerning his second point, which I'm about to discuss.

In the law (and I've no idea if this gentleman is a lawyer, or not, but, to my ear, he sounds like a good one), it's permissible, indeed often necessary, to "argue in the alternative." In other words, you can say to the court, "Look, my client did not pull the trigger. I've shown that with evidence A, B, and C. However, even if you find that he did pull the trigger, there are three reasons why he's still not guilty of this crime. First, . . . " And that's what I think the speaker is doing when he moves to: "the other thing . . ." and "what does it mean to the moral force of your arguments arguments if sexual orientation is god-given?" (You know how effective his argument is because his opponent jumps up and makes a jerk of himself saying, "Keep your applause to yourself." How does one even do that?) In other words, the speaker is saying, "First, we shouldn't enshrine religious beliefs in our Constitution. But, even if you believe that it's ok to do that -- to change the Constitution based upon your religious beliefs -- here's another reason why we shouldn't adopt this measure. We shouldn't adopt it because god keeps creating gay people, and how many gay people does god have to create before we accept that god wants them around?" In other words, the moral force of those "religious arguments" you've proposed is nil. So don't change the constitution based upon false religious beliefs, even if you think it's ok to change it based upon religious beliefs.

And to my lawyer's ear, that's ok. And to my lawyer's ear, it's ok to pull out your rhetorical guns against the argument you believe is most attractive to the person you're attempting to convince. And to my lawyer's ear, it's where this speaker's argument becomes so eloquent that it moves from mere prose to persuasive rhetoric, which can, in fact, stir people's souls and change their hearts. And, sometimes, their votes.

As to Markarios' other point, I had to smile, as I had dinner with a dear friend last night (her husband's homemade gumbo -- the nectar of the Gods!) and was making this very same point. I agree that sexual orientation, for the vast majority of the population, is innate. In the speaker's words, translated into mine, it's a "gift of the Goddess." I know that I didn't wake up one morning and decide to be "straight." I've heard from too many of the gay people I love how they spent nights on their knees praying "not to be gay" in a culture and religion that taught that there was little less acceptable than being gay. But I've also known people who engaged in whatever sex was available or approved at the time, whether that meant male homosexual sex in an all-boys' school or lesbian sex when (and this is how old I am) that was favored by feminists, and then went on to have lots of other kinds of sex.

Yet, importantly, I agree that, in my world at least, it should be irrelevant whether sexual orientation is innate (as it often is) or a "lifestyle" choice (as it can be). I don't believe that the government has any reason to tell any person what kind of adult, consensual sex is "Ok" or "sanctioned." And that's true regardless of the reason why that person chooses to engage in any kind of sex. But I also "get" that anti-discrimination laws are often based upon the fact that a person can't choose to be, for example, dark-skinned, or female, or differently-abled and, so, that makes it illogical and wrong to discriminate against them, as if the discrimination could cause them to change their "behavior."

And that brings me back to my religion. Because it's my religion that makes the sex act doctrinally important (well, the Christians seem to consider it important, as well, but for reasons that have nothing to do with what Jesus said and did and everything to do with patriarchy, control, fear, etc.) and freedom to practice all "rituals of the Goddess" free from government interference (especially because that government interference is often based upon (someone else's) religious beliefs) a really important point for me.

More to the point, I would sincerely love to hear more of the "people on our side" able to discuss these issues in a manner similar to this gentleman's discussion. (Good rhetoric backed by real belief.) I'm just embarrassed by Democrats who mouth some namby-pamby version (John Kerry and Barack Obama, I'm looking at you) of "I think marriage is a union between one man and one woman but I'd support blahhabhallahh and please don't hold this against me and could we please just change the subject?" And, in case ya'll haven't noticed, that's not working too well for you. The Christianists see through you and vote for your opponent and those on your side are dispirited. Grow up. Get some ovaries. Stand for something. Stand for sex-positive attitudes. Hell, could it hurt you worse than your Republican-Lite stance?

We're leaving the Age of Pisces (and I'm a Pisces) and moving into the Age of Aquarius. Humans are going to have to figure out some way to live in communities that don't share religious beliefs, even as we focus with laser-beam intensity on how to change the world. It's going to be interesting. I hope to hang around for a bit of it.

What do you think?

More interesting discussion here.

Get a Lawyer


Here's a thoughtful, well-written article about religious discrimination against a woman, Carole Smith, due to the fact that she's a Wiccan. If you watch the included video interview with Ms. Smith, you'll see that she does a pretty good job handling the media interview. This is one of those rare cases where it, sadly, is necessary to deal, head-on, with the notion that Witches run around casting evil spells on people, as Ms. Smith was apparently fired, at least inter alia, due to a co-worker's complaint that Ms. Smith cast a spell on her car and made its heater malfunction. (I discussed another such instance here, where Katrina Messenger also did a good job managing the topic.) I think Ms. Smith does a good job and then skillfully turns the conversation around to what Wiccans do believe in a very positive way.

I don't think that I've ever said this before, in all my discussions about how Wiccans should deal with the media, but I want to make sure that I say it now, loud and clear. In any kind of legal situation (and the article explains that Ms. Smith is planning to appeal a negative ruling by an administrative law judge), for the love of the Goddess, please get legal advice early and certainly get it before you talk to the media. Until you get clearance from your lawyer, do not say one word to the media, no matter how earnest, helpful, and decent their representative may seem. As a layperson you've got no idea (no, trust me, you really don't) what innocent thing you're going to say that will hurt your case. Heck, I'm a lawyer and, because I don't practice employment law, I'm not qualified to judge what Ms. Smith may or may not have said that will hurt her case. Nor whether even doing such an interview was helpful or not. But I can guarantee you that, come Ms. Smith's appeal, the employer's attorney will go through her interview with a fine tooth comb and use it against her. To be clear, Carole Smith needed a lawyer from the minute that her boss suggested that she go into a mediation session to "explain" her religion to the complaining co-worker. The correct response would have been, "Thank you for suggesting that. I'd like to think about your suggestion for a day or two and get back to you," and to then make a mad dash for a lawyer. That would be true even if Ms. Smith, herself, were a lawyer. There's an old saying in the law about a lawyer who represents hirself. It's an old saying for a reason.

I'll also say that this case is yet another reason why I'm less than 100% enthused about "Out Yourself as Pagan Day." Ms. Smith was a new, probationary employee. She told at least one person on her job that she was Wiccan. I don't know why she told them, or in what context, but what happened to her is a good example of why many people choose to stay in the broom closet at work. I understand all the good reasons for people to come out of the broom closet, but, in today's employment market, there are real dangers to discussing your personal life, including your religion, with other people. And it's generally not necessary. Even a direct question, "What religion are you?" doesn't warrant a direct response (nor does any question that seeks personal information). A simple, "Well, I have a deep respect for nature," or, even better, "I really consider that a personal subject," works just as well. Whether, and when, to come out at work is a personal decision. People should make it carefully.

Beyond that, as sympathetic as this article is, there are the usual capitalization problems:
Judge: Let's take the witchcraft out of it. If someone complains to you, he's Jewish, and refers to a stereotype about his Judaism, go to mediation and work it out? Is that management's response to that?

To be fair, it's possible that, here, the reporter is quoting from a court transcript that screws up the capitalization and that Ms. Smith wasn't legally savvy enough to demand revisions. But, even so, the reporter should have used brackets to correct this. For example:
Judge: Let's take the [W]itchcraft out of it. If someone complains to you, he's Jewish, and refers to a stereotype about his Judaism, go to mediation and work it out? Is that management's response to that?

Since Judiasm is capitalized, Witchcraft should be capitalized, as well.

But there's also this:
Here's a situation for all you aspiring managers: If you were the boss at a U.S. government agency and one of your employees complained that she was afraid of a co-worker's religious practices, what would you do?
Would it change your decision if the religion were Wicca, and the employee feared her co-worker because she thought she might cast a spell on her?
Here's how the Transportation Security Administration handled it:
It fired the witch.

Let's substitute Jew for Witch. In that case, would the article have read:
"Here's a situation for all you aspiring managers: If you were the boss at a U.S. government agency and one of your employees complained that she was afraid of a co-worker's religious practices, what would you do?
Would it change your decision if the religion were Judiasm, and the employee feared her co-worker because she thought she might make matzo from the blood of Christian children?
Here's how the Transportation Security Administration handled it:
It fired the jew"?

Of course not, it would say, "It fired the Jew."

And, there's the failure to capitalize Voodoo:
“I was dumbfounded,” Smith said. “I told him, that's not what Wicca is. We don't cast spells. That's not witchcraft. That's black magic or voodoo or something else. To put a spell on a heater of a car, if I had that kind of power, I wouldn't be working for TSA. I would go buy lottery tickets and put a spell on the balls.”

Not to mention Ms. Smith's own apparent conflation of black magic and Voodoo.

I hope that Ms. Smith gets the legal help that she needs; her case is pretty egregious.

hat tip/ The Wild Hunt.

Picture found here.

Apologies to Tolstoy


The amazing Theodora Goss writes that:
With apologies to Tolstoy, all A papers are A papers in their own way. They don’t just lack mistakes. They have something extraordinary about them, a level of engagement with the texts, a felicitous style. They grab and keep your attention, and it’s interesting to think about what does that. Usually, I think, it’s the student’s voice. The student already has an individual voice. The student is already thinking, and writing, in his or her own way. There’s an enormous pleasure in seeing something like that.

Shorter Ms. Goss: When it's done well, we cannot know the dancer from the dance.

I find that the same thing is true of a compelling legal brief; I spend almost as much time reading and editing briefs as I imagine Ms. Goss spends on student papers. And there's little that sends a thrill down my spine quicker than a well-written brief -- although it's painful if it's a brief directed against my position. Good legal writing is something that people like to pretend is an oxymoron. But good legal writing is, IMHO, some of the best writing that there is. It informs, persuades, and carries the reader along in an elegant and almost seamless manner from the initial question to what appears, by the end, to be the only possible conclusion.

How do you know good writing when you see it?

Picture found here.