How's This for a Litmus Test?

The next Supreme Court Justice has to live in the 21st century with the rest of us

A Belated Word on Citizens United v. FEC

You all know Citizens United, even if you don't know it by name. It's the case where the Supreme Court overturned damn near a century of precedent and whole volumes of campaign finance law by ruling that corporations have a right to free speech than includes a right to spend literally unlimited amounts of money.

The most disgusting thing about this decision is that it comes from the ridiculously-named "conservative" wing of the court (Scalia, Thomas, Roberts, Alito, and ever so slightly less "conservative" Kennedy). Roberts particularly ought to be ashamed of himself. After literally days of hearings filled with bullshit analogies and promise after promise after promise of judicial restraint, Roberts has joined with the most activist opinion the Court has written in recent memory.

"Conservatism" and "originalism" are such a great guise for judicial activism because they unravel all the way back to the founding, and anything done since then is up for grabs. You just decide exactly how "original" you want to be and then select a case from some point in history to which you are "returning" the law, or say that every single case ever decided on the matter was wrong and misconstrued the "original" version of the written law (that's where you get to claim the "strict constructionist" mantle as an added defense for your blatant activism).

I've been irritated with the blatant misuse of the phrase "judicial activism" to tar exclusively left-wing judges for a while now, but Citizens United really makes it clear how deep this ridiculous doublethink goes. The "conservatives" on the Supreme Court are anything but.

God Says No Faggots in Our Club

Off to act as a witness in a mock trial today, so this will be unusually short. This story over at the Washington Post is a pretty good overview of a case trickling up to SCOTUS.

The short version is that a public law school denied a christian group authorization as a student organization because their charter bars homosexuals, among others, from joining the club. Now the christians are suing, claiming that their hateful, bigoted, discriminatory faith is being discriminated against because the state won't sponsor their hateful bigotry.

The scary thing is that I'm really not sure which way the Roberts court will rule on this one. Keep an eye out.

Georgia Law Criminalizes Wearing a Niqāb in Public

Here's an interesting little tidbit. I was spelunking around in the Georgia Code (as I imagine most law students do more frequently than can really be explained) and I came across OCGA §16-11-38, entitled "Wearing mask, hood, or device which conceals identity of wearer." The OCGA is hosted in an extremely annoying Lexis database that prevents internal linking, so I've reproduced the statute in its entirety below.

This is an old anti-Klan section of the law, but it occurred to me that it bars practitioners of Islam from wearing a Niqāb in public. The statute makes it a misdemeanor to wear anything that obscures the identity of the wearer, which some versions of the Niqāb definitely do.

The statute includes four exceptions, but ironically, because the Klan used religion as a cover for its violent activities, the statute doesn't allow for a religious exception. Does anyone know if this section of the OCGA has ever been challenged on religious grounds? There's a case from 1990 in which a Klan member challenged it (and lost) on free speech grounds, but I haven't seen a religious challenge. The law seems to be still in force, too, having apparently been used against the Anonymous protesters.

For those wondering, the exceptions included are Halloween, trade garb (think baseball catchers and welders), theatrical productions, and gas masks (almost certainly as a result of WWII / Cold War paranoia at the time of the drafting in 1951).




§ 16-11-38. Wearing mask, hood, or device which conceals identity of wearer

(a) A person is guilty of a misdemeanor when he wears a mask, hood, or device by which any portion of the face is so hidden, concealed, or covered as to conceal the identity of the wearer and is upon any public way or public property or upon the private property of another without the written permission of the owner or occupier of the property to do so.

(b) This Code section shall not apply to:

(1) A person wearing a traditional holiday costume on the occasion of the holiday;

(2) A person lawfully engaged in trade and employment or in a sporting activity where a mask is worn for the purpose of ensuring the physical safety of the wearer, or because of the nature of the occupation, trade, or profession, or sporting activity;

(3) A person using a mask in a theatrical production including use in Mardi gras celebrations and masquerade balls; or

(4) A person wearing a gas mask prescribed in emergency management drills and exercises or emergencies.