Of Contraceptives and Same-Sex Marriage

by Geoffrey R. Stone

Huffington Post
February 12, 2012

This was an interesting week for religion in America. First, the Council of Catholic Bishops demanded that the president of the United States exempt Catholic hospitals and universities from a general requirement that all employers receiving federal funds must provide health insurance for their employees that includes coverage for contraceptives. On reflection, the president acceded to their demand, explaining that such institutions should not be required to do something that is fundamentally incompatible with their religious beliefs.

While all this was going on, a federal court of appeals ruled that California's Proposition 8, which attempted to strip gays and lesbians of the previously recognized state law right to marry, violated the federal Constitution. The court explained that Proposition 8, which had been aggressively promoted by the Catholic Church, the Mormon Church and evangelicals, was unconstitutional because it served "no purpose... other than to lessen the status and human dignity of gays and lesbians in California."

The juxtaposition of these two events sheds important light on the relationship between religion and government in the United States today.

Our nation's founders sought to shape the basic nature of that relationship in the First Amendment, which contains two distinct but intertwined clauses concerning religion. The Free Exercise Clause forbids government to make any law prohibiting "the free exercise of religion." The Establishment Clause forbids government to make any law "respecting an establishment of religion."

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Live, From the Nation’s Capital, It’s ... the Supreme Court

Bloomberg
Editorial
February 9, 2012

Porcinophobia, fear of hams, is the main thing keeping the justices of the Supreme Court from opening their proceedings to television. They are afraid that showoff lawyers will perform for the cameras, rather than for the court, thereby lowering the tone to the level of, well, television.

This would be an odd way for lawyers to react. After all, the most important consideration -- for themselves and their own futures, as well as for their clients -- will remain winning the case. And if the justices do let the cameras in, it will be with gritted teeth (if not over their dead bodies, as former Justice David Souter described his lack of enthusiasm). They are likely to be more hostile, not less, to any sign of hamming it up.

The question of the Supreme Court allowing cameras in its courtroom is not new -- that Souter quote is from 1996. But it has renewed relevance and urgency thanks to next month’s oral arguments over the constitutionality of the Obama administration’s health-care law, a five-and-a-half-hour marathon scheduled for March 26-28. The court is now considering requests from scores of lawmakers and media organizations, including Bloomberg News, to open its proceedings to TV cameras.

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Dickens v. Lawyers

by Joseph Tartakovsky

New York Times
February 5, 2012

Tuesday is the bicentenary of the birth, in Portsmouth, England, of Charles Dickens, literature’s greatest humanist. We can rejoice that so many of the evils he assailed with his beautiful, ferocious quill — dismal debtors’ prisons, barefoot urchin labor, an indifferent nobility — have happily been reformed into oblivion. But one form of wickedness he decried haunts us still, proud and unrepentant: the lawyer.

Lawyers appear in 11 of his 15 novels. Some of them even resemble humans. Uriah Heep (David Copperfield) is a red-eyed cadaver whose “lank forefinger,” while he reads, makes “clammy tracks along the page ... like a snail.” Mr. Vholes (Bleak House), “so eager, so bloodless and gaunt,” is “always looking at the client, as if he were making a lingering meal of him with his eyes.” Most lawyers infest dimly lighted, moldy offices “like maggots in nuts.” (No, counselor, writers dead since 1870 cannot be sued for libel.)

Dickens knew whereof he spoke. At 15, he was hired as an “attorney’s clerk,” serving subpoenas, registering wills, copying transcripts; later he became a court reporter. For three formative years he was surrounded by law students, law clerks, copying clerks, court clerks, magistrates, barristers and solicitors who (reborn in his fiction) uttered cheerful sentiments like “I hate my profession.” His portraits of nearly every London court — Chancery, Divorce, Probate, Admiralty, etc. — are so accurate that one scholar wrote a lively book called Charles Dickens as a Legal Historian. At 32 he filed his first suit against a pirate publisher. Dickens told a friend afterward that “it is better to suffer a great wrong than to have recourse to the much greater wrong of the law.”

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Politics and the Supreme Court

New York Times
Editorial
February 4, 2012

The Supreme Court underscored its power to shape American life when it took major cases about the health care reform law, Arizona’s anti-immigrant law and the Voting Rights Act in an election year. But this is not simply a case of the court thrusting itself into politics.

The way these cases developed and made their way to the highest court also illustrates the reverse — how politics shape the court. Each case grows out of a struggle between left and right where politics have pushed the law: between a quest for universal coverage and the defense of big health care providers; between an emphasis on openness and hostility toward immigrants; and between a promise of access to the voting booth made nearly 50 years ago and the unyielding opposition to keeping that promise.

Each party has its program and works to turn it into law. The great example of political change through legal change was the long, methodical effort to whittle away at segregation from within the legal mainstream that culminated in the court’s decision in Brown v. Board of Education. The conservatives’ legal-political strategy draws from Brown, but it is also vastly different in nature and design.

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Live, From the Supreme Court

New York Times
Editorial
February 1, 2012

Since May, the Supreme Court of Britain has allowed its hearings to be broadcast live. On Wednesday and Thursday, the court is hearing arguments on the extradition of Julian Assange, the founder of WikiLeaks, from Britain to Sweden and whether a Swedish prosecutor had the authority to issue a warrant for his arrest.

The British court, which replaced the Law Lords as the highest court in the land in 2009, has the good sense to see that televising hearings can boost the court’s reputation and confidence in the legal system.

The Supreme Court of the United States, however, still refuses to see these benefits. It does not allow broadcasts of oral arguments out of a misguided worry that cameras would encourage grandstanding by lawyers and might cause the justices to censor their questions.

But the court currently releases transcripts of oral arguments soon after they are finished and audio recordings of arguments the week they occur — all without causing grandstanding or self-censorship. Adding video would further enhance public understanding of the court.

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