I've been thinking about Gore endorsing Dean and am working on writing something about it. I'll get it out later on today. In the meantime, your thoughts are appreciated. Thanks.

Today is the 50th anniversary of the oral argument in Brown v. Board of Education. NPR has been presenting several stories about the case, including interviews with some famous folks involved in the case, and behind-the-scenes glimpses of the Court's deliberations. You can access the stories here. (So far, they're pretty interesting.)

Since Howard Bashman is suffering in St. Croix, I'll mention a big appellate case to come down today. The Fourth Circuit upheld the constitutionality of part of the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA) in an opinion written by Judge Wilkinson you can access here. The act was passed back in the days before international terrorism gave us pronounceable statute acronyms. Most people pronounce it "Ray-loopa," or, for us slack-jawed hill people, "Ruh-loopa." It is a follow-up to the old Religious Freedom Restoration Act (RFRA, or "riff-ra"). (Hmmm...maybe we should have used "Riffra and Rayloopa" as our pseudonyms -- all we would need is a Human Beat Box.)

Anyway, enough silliness. The basic thrust of the act is to protect the free exercise rights of prisoners. Congress found that, absent Congressional action, religious people in prison would be substantially burdened in the exercise of their rights. Well, that's certainly how Ira Madison, a Virginia prisoner, felt. He wanted to eat a kosher diet due to his conversion to some kind of Hebraic sect in prison. Local prison officials went along with it, but the powers in Richmond disapproved the request, because (1) they thought he had sufficient alternatives within the ordinary menus; (2) they doubted the sincerity of his beliefs; and (3) he had apparently had some disciplinary problems in the past. To me, that sounds like the kind of burden Congress had in mind.

So, Madison sued. The district court found the act to be an unconstitutional establishment of religion. Specifically, the district court decided that the act "impermissibly advanced religion by offering greater legislative protection to the religious rights of prisoners than to other fundamental rights that were similarly burdened." (all quotes from the 4th Cir. opinion) Today, the Fourth Circuit reversed.

I am not going to discuss here the myriad other issues presented by this case, but I want to point them out. Part of the reason the Supreme Court struck down the RFRA in Boerne v. Flores (I was at the Court that day, by the way) was that it went beyond the scope of what Congress could do pursuant to its Fourteenth Amendment, section 5 powers. So in passing RLUIPA, Congress cited its powers under the Spending and Commerce Clause. The Fourth Circuit did not decide whether it has such power under those clauses. Also, Virginia challenged the law on Tenth and Eleventh Amendment grounds, but the court did not address those either. It will be up to the district court to look at those in the first instance now. I should also say that several other challenges to the law are percolating in the courts (the opinion cites them), and a split of authority is developing. I would love to find time to address those issues in some detail later.

Anyway, does any of this sound familiar? A few days ago, I was talking here and here about the Locke v. Davey case, currently before the Supreme Court. There, the establishment and free exercise clauses are butting heads. Today Judge Wilkinson (on everybody's Supreme Court short list) came down squarely on the side of the accommodation principle: that the Government can lift burdens (selectively) on the exercise of religion and shouldn't have to worry about clamors for burdens to be lifted from the exercise of other rights (like free speech or whatnot).

Adopting the state's position, Wilkinson says, would mean that "Congress would have to make determinations in every instance of what fundamental rights are at risk and to what degree they are at risk, and it would be able only to heighten protection for fundamental rights in a symmetric fashion according to these assessments. The byzantine complexities that such compliance would entail would likely cripple government at all levels from providing any fundamental rights with protection above the Constitution's minimum requirements."

Citing a 1992 case holding that neutral laws are ok even if they have the effect of burdening religious practice (Smith -- peyote case), Wilkinson writes, "Our society has a long history of accommodation with respect to matters of belief and conscience. If Americans may not set their beliefs above the law, there must be room to accommodate belief and faith within the law."

That's nice law-talkin' and all, but this case is sort of the inverse of Locke. The Fourth Circuit's decision followed the Lemon test to get to its result, and I don't think it cited the voucher case, but it tracked that principle. As Justice Ginsburg noted last week, "We know we can give funding to religious schools if we want to...." Likewise, Wilkinson says, we know Congress can give Ira his kosher meal if it wants to. But is it required to under the free exercise clause?

A great deal of my work involves prisoner litigation, so I sometimes think of constitutional cases through that lens. If Davey wins, and the Supreme Court recognizes a free exercise right to equal access to the Washington scholarship program, what sorts of free exercise claims will prisoners seek in civil rights suits? And, in the Fourth and a few other circuits, they can cite RLUIPA, too.

I really really hope to write soon about the other issues popping up here, especially the Eleventh Amendment sovereign immunity issue. Can Virginia claim that its sovereign immunity exempts it from granting Ira his free exercise rights? More strategically, can it claim the establishment clause as a sword (RLUIPA is bad because it would make us violate the establishment clause) while at the same time using the Eleventh Amendment as a shield against a free exercise claim? (Or wait...are they both shields?....well, you get the idea.) And is any of this kosher after Lopez and Morrison? If not, can the Spending Clause save everything? Stay tuned....

A very warm thank-you to Mr. P for his nice comments about BTQ. Don't let me stop you from going over there, but I can't resist quoting him: "You should be reading Begging the Question, since they have had several good posts lately."

When Mr. P talks, people listen, and it means a lot that he thinks so much of our fledgling little enterprise. I like to think we lured him in with the psuedomyns, but he keeps coming back for the posts.

And to anyone who comes here based on his recommendation, welcome! As you can see, we're just getting off the ground, and we're still trying to keep the blog from turning into a Radical Vertical Impact Simulation (what part of that was "simulated," by the way?). But we appreciate your patronage. Enjoy!

When I was in law school, we had this deal where, one week per semester, students could bring in a canned food item and receive immunity from being called on in class. Over the years, I gave a lot of food to needy people just so I didn't have to read for class.

Well, clicking here won't keep you from having to work, but for every visit, Campbell's is donating soup to hunger relief charities. To encourage participation, you make your "donation" by voting for your favorite NFL team. If you don't have one, just pick anybody. (They also make you fill in a little box with the displayed word to foil spammers and auto-voters, but that takes about three seconds.)

Thanks, folks!

I saw here that for the first time, applications to medical school by women outnumbered those by men. This has been the case in law school for a couple of years.

I just found this interesting, and wanted to point it out. I didn't want to make it into fodder for a rant, or to raise any hackles, but this makes me think of my arguments over the affirmative action cases back in the summer. I think that one of the strongest arguments for affirmative action in graduate schools is that it is a social good (a compelling state interest, even) to have a certain quanta of minority professionals. I think it's a bad thing if a state has virtually no black or hispanic doctors or dentists or lawyers or whatever. I'm not trying to encourage or promote any conspiracy theories that some minorities might have about the white establishment. I don't really have time to get into all the reasons. But, to take an example, it's bad for society if black people won't go to the doctor because the only doctors in town are white. And there is at least some probability that a minority doctor will be more likely to go into an underserved community.

Anyway, we have now reached a point where the number of female applicants for law school and medical school is in proportion to their number in the overall population. But we can't forget that this is partly a result of efforts in the courts to create opportunities for women. I share Justice O'Connor's hope that twenty-five years from now, we'll see stories that minority applications to law school and medical school are proportionate to the minority population.

I was reading a review of a new restaurant that opened in my city. It styles itself as a "lobster and steak house," or a "steak and lobster house," I can't remember which. The reviewer noted that the lobster was selling that day for $28 per pound. That's bad enough, but she also noted that the smallest lobster they had available -- the smallest -- was six pounds! That comes to $168 for the tiniest crawdad they've got. Un-freakin-believeable. Sorry to break your hearts, but none of my friends will be getting gift certificates from this place for Christmas.

I almost missed this non-story. In an interview with Rolling Stone, Democratic presidential candidate John Kerry discusses his position on authorizing the use of force in Iraq and Howard Dean's position:

Q: Did you feel you were blindsided by Dean's success?

A: Well, not blindsided. I mean, when I voted for the war, I voted for what I thought was best for the country. Did I expect Howard Dean to go off to the left and say, "I'm against everything"? Sure. Did I expect George Bush to f--- it up as badly as he did? I don't think anybody did. (edit mine)

So now conservatives are upset about this. The New York Post called it "an X-rated attack at President Bush," even though you can say the f-word in a PG-13 movie. White House Chief of Staff Andy Card called it "beneath" John Kerry and "disappointing." Kerry's defense is basically "Sailors use salty language."

I am of the opinion that nothing can help John Kerry now, even if this was calculated as an attempt to paint himself as being as angry as Dean. But I'll leave all that aside. What I want to see is somebody point out that the Bushies should be the last folks to get on a high horse about language.

Does anybody remember Bush, during the 2000 campaign, calling New York Times reporter Adam Clymer a "major league asshole"?! I do, "big time." And at the end of this article I saw this nice anecdote:

Though he's done a decent job of hiding it in this election cycle, Bush has been known to use salty language. At the Republican National Convention in 1988, he was asked by a Hartford Courant reporter about what he and his father talked about when they weren't talking about politics.

"P----," Bush replied. (again, edit mine, and the word isn't "pants," although that's close...)

Anyway, what a stupid, piddly, little nothing of a story. But this is what passes for political discourse these days. Oh well, f--- it.

UPDATE, Monday noonish: The New Republic has been running a "primary" in which they grade the candidates on various things. They have given Kerry an "A" in the "General Likeability" category for his f-bomb.

UPDATE, Tuesday a.m.: According to the last item in this dispatch from Slate, Kerry is now cursing at almost every opportunity. No more f-bombs (yet), but several references to "kicking ass." I can just see the inaugural now: "Ask not whose ass your country can kick, ask who you can f--- up for your country!"

"Greatest Hits collections are for housewives and little girls." -- Bruce McCulloch

And guys like me who are too tech-stupid and lazy to burn their own. Last week I bought three greatest hits CDs. I wasn't even really meaning to. I was in Best Buy and wandered into the CD section. I didn't even know that one of these albums existed, but all three were from bands I liked but didn't have any CDs of. All the songs I liked were on two of them, and the third had most of them (I liked all the ones on there, but there were a couple I wished had been included).

I was retro before retro was cool. And that was before it got lame and then got cool again! I still make mix tapes (as in cassette tapes) to listen to in my car. My cell phone is large and heavy and doesn't have anything that flips open. I've always been late to the high-tech party. I took a rotary-dial phone to college, and immediately had to buy a new phone because my school did all its class registration via touch-tone phone. I still have that phone, by the way. The first stereo I ever bought had a record player on it. I don't have a TiVo or a dvd player.

But I'm trying to drag myself into the digital age. I don't want to be a housewife or little girl anymore. I want to violate my own copyrights. (Hey -- if those artists want money, the should put out some new material instead of killing time with greatest hits packages!) I don't like the looks I get when I rent VHS tapes -- it's like they must have looked at BetaMax folks twenty years ago. Plus, the selection sucks.

So, I'm thinking about finally getting a dvd player and upgrading my computer, although I may just get an external burner and hold off on a new computer for another year or so. Any advice is hereby solicited. I'm keeping the tape player in my car, though.

[Aside: Writing this post made me think of the fun word retronym. An example from the post is "rotary phone." It used to just be a "phone," until they came out with buttons on phones. Other examples are "black and white television" and "acousitc guitar." We had to come up with a new way of describing an old thing. I saw a reference to "film cameras," which would have sounded stupidly redundant only a few years ago, before digital cameras. This is an interesting phenomenon, our eagerness to adopt new technology as the standard (in language, too) and to use the simplest word possible to express a thought. I wonder if we will ever refer to email simply as "mail," and call everything else "snail mail." My guess is no, but only because "email" is so easy to say. If it was as cumbersome as "color television" or "electric guitar," I'd say maybe. How long before "camera" refers only to the digital kind?]

The New York Times ran an interesting series last week about "the emptying Great Plains." There are three stories here, here, and here, plus a neat "interactive" feature where you can listen to some of the subjects of the story speak. (The Times requires a registration to read stuff, and even then they archive stuff after a week or something, so act fast. I have the full text of these articles if you would like them, though.)

I grew up in a pretty rural area, but it's still hard to imagine such a huge area of the country basically empty. There's a story about a company in Kansas that lays telepone and high-speed internet cable out in the middle of nowhere. (That "universal service fee" on your phone bill subsidizes this.) He said they have something like two people per square mile out there. With the rise of Big Agra, and the departure of manufacturing, there's just no one there anymore.

I'm not going to spin out the electoral map (red state/blue state) ramifications of this, although they exist. And I'm not going to lament the loss of "a way of life," for two reasons. One, I don't have any room to talk, because I'm sure not going back home either. And two, these things happen; times change. I guess what's interesting to me is how we were supposed to have this wired (and now wireless), satellite, videoconference, computer-driven world that was going to make it just as easy to be in Nowhere, Nebraska as NYC. I didn't really have much of a point here, I just thought the stories were well done. I'm just going to blame it all on NAFTA and the U.N. like everything else.

In case you hadn’t heard, there’s this really awful story about a man named Jonathan Luna, who was an Assistant U.S. Attorney in Maryland. Last week, for reasons that are still unknown, he left his Baltimore office and ended up dead in Lancaster, Pennsylvania. Howard Bashman at "How Appealing" has been all over this story, with posts here, here, here, and here, just in last day or so. The short version is that Luna was stabbed many times and drowned in a river.

As of now, it doesn’t look like the murder was connected to any of Luna’s cases, but instead might have been because of something personal going on in his life. What that means, I have no idea. It’s obviously a tragedy for Luna’s family (he had two small kids), and I’m sure it has really shaken up that office.

I worked one summer in a U.S. Attorney’s office, although not in that district. On our first day, they showed us news clippings about shoot-outs in the courthouse and witnesses being killed to prevent them from testifying. It’s been a few years, and right now I don’t remember if an attorney from that office had ever been killed. Not to be melodramatic about it, but they made it very clear that we were dealing with dangerous criminals who might be willing to kill to keep from going to prison. The people who deal with that in person (and I’m including most defense attorneys here too, because they get even closer, and judges too) are brave folks. One reason I don’t want to do that kind of thing is that I prefer to keep it all nice and academic and theoretical, and quite frankly, I prefer not having to deal with people in those situations.

Anyway, it doesn’t look like Luna’s killing was because of his work, but that’s probably not because there aren’t any criminals out there who wanted to kill him – he was a prosecutor in New York City before he came to Maryland. I’m not trying to make him into a hero, because he was just a regular guy who did a tough job. But apparently he was good at it, and it’s a shame something in his life got so screwed up. Here’s hoping they figure it out.

"Thinking is more interesting than knowing, but less interesting than looking." -- Goethe.

Lest I seem pretentious, and in case any of you had any doubts, I don't read Goethe. Especially not at this time of day/night. But I liked the quote, and hadn't posted anything in a while.

I saw it on "Stay of Execution" a blog by a bankruptcy lawyer in Maine. (That's a good blog, by the way; my favorite post is this one -- oh, and this one, where I found out where we got the term "boilerplate.")

I've been spending even more time than usual lately looking at other blogs, to get a sense of what I like and what I don't. I'm not specifically trying to emulate anyone else's style here, but it's nice to see the variety out there and get some ideas.

Anyway, I'm going to go do some more looking.

There's a question going around some of the blogs I read which I thought I would pass on to you. What is the worst Supreme Court decision ever? If you could remove one case from the books, what would it be, and why?

The rules: You can't say Roe v. Wade. If you don't like abortion, that's just too easy. And, removing a case also wipes out all the cases relying on it. So, for example, if you took out Roe, that would eliminate Casey and Carhart and all the other abortion cases. Oh, and you can't say Marbury v. Madison either, because that would just screw everything up. If a case has already been overruled, you can't choose it (but you can choose the overruling case). And if somebody takes your first choice, please give us your second.

My tentative first candidates would be Hans v. Louisiana or The Slaughterhouse Cases. But I'm still thinking about it. Anyway, if you want to, feel free to suggest your own choices in the comments. Once I come to a final decision, I'll update the post.

By the way, I know we have at least one regular reader who is not a lawyer. I'm not trying to exclude him with this post. In fact, I would be interested to see what he (or any other non-lawyer readers we have) would say. My guess is that the lawyers' choices have more to do with particularly distasteful doctrines, or maybe progeny of cases that we feel have taken the original too far. (I think my suggestions above probably fit that bill.) But my hunch is that a non-lawyer's decision will have more to do with the real world. Obviously, I wouldn't require a non-lawyer to provide exact citation; saying something like "the flag burning case" or "the gay sex case" will probably give us enough to figure it out.

Sorry for the overt law-geekiness, but I find this a fun little mental exercise in historical revisionism, or something.

[By the way, the original posting of this question was on a blog called Sugar, Mr. Poon?, a reference I'm sure at least one of our readers will find incredibly funny. His post had 60 comments when I checked it, so if you need suggestions, try those.]

I'm not trying to make this blog an advetisement for other blogs, but there was something on the Patent Pending blog the other day that really made me laugh. The author there goes by the pseudonym "IA" for Incompetent Attorney. He practices patent law for a big NYC firm. His posts are usually funny, and are nice vignettes of life in a big firm (and NYC). He hates most of the partners, and spends most of his days doing mind-numbing work. IA makes me feel good that I'm not doing what he's doing.

Anyway, he had a post yesterday I really liked. He doesn't have permalinks, but it was called "Mathematics" and appeared on December 4. I'll quote in full:

I've been telling this partner that I needed help with this project. He's been telling me to keep working on it. This has been going on for a few weeks now.

So I averaged out my work this past week and did some math. I went into his office last night with the following:

"Over the past two weeks, I have averaged reviewing 10 documents per hour. There are over 13,000 documents. At my current rate, it would take me 130,000 hours to review all of the documents by myself. If I bill 2,000 hours a year, it will take me 65 years to review all of the documents."

He said he would try to get someone to help me. But in the meantime, he said I should keep working on it.

Now, some of you may have already caught what several of IA's commenters quickly pointed out: His math was way off. He multiplied instead of divided. In fact, it would take him 1300 hours to do this work. Still a long time, but not 65 years. My favorite comment: "We had a meeting. Everyone admitted to the patent bar is now ashamed of you."

OK, so the math error is funny. But what is really hilarious to me is that the partner was told the project would take 65 years to finish, and didn't even question it! And even if the partner believed it would take 65 years to finish, he apparently didn't find that enough of a problem to find someone to help IA! He was probably thinking, "Hmmm...65 years of billable hours..." (Who is the client? Jarndyce?)

I didn't really have much to say here. I wasn't going to recommend going back to June and reading all of IA's posts, although there's plenty of funny stuff in there. But this post just struck me as just so emblematic of how miserable his existence must be at that firm.

The New Republic has an essay up about the "reality" show "Average Joe." (The essay is available only to subscribers, so I won't link, but I will quote liberally and call it Fair Use.) I have never watched this show, but I think we have all seen the ads and understand the premise: Hot Girl thinks she's going to choose from a buffet of Hot Guys, but instead is presented with allegedly average guys.

She starts thinning the herd, after which she is routinely accused of being superficial. The TNR author points out: "If Melana isn't attracted to the beefy Joes, is it really shallowness? Every single person I know who is in a relationship is attracted to their partner. That doesn't mean everyone I know is gorgeous. It means we all want to be with someone who, well, turns us on."

The other great line from the essay: "No one ever--not once--questions the superficiality of all these Joes--average, less-than-average, whatever--as they vie for their cheerleading goddess. Not one of their gripes about Melana invites even a lick of introspection as to why these guys feel such a sense of entitlement to this young lovely. . . . But make no mistake: Melana's good looks are central to her suitors' attraction. In case there were any doubt, each week features footage of Melana jogging down the beach slo-mo, breasts akimbo, tantalizing every Joe in the house. In turn, the vast majority of these guys say they never thought they could 'get a woman like that.' Believe me, they ain't talking about her dazzling intellect."

It turns out that Big Twist #1 in this show was bringing in some allegedly above-average guys to tempt the Hot Girl. According to the promos that run only slightly less often than promos for big weather news, she has narrowed it down to one of each, but the "average" guy turns out to be rich. (Big Twist #2) Hmm...which is more shallow – choosing someone just for looks or just for money?

I don't care whom she chooses. But the TNR story got me wondering about trying this from the other angle. In googling for the link to the show, I saw that they have already taped two seasons, which is apparently a regular reality show trick, and explains how the second batch of contestants doesn’t know the twists. But after we have to put up with that, I'm predicting it – you heard it here first: "Plain Jane."

We'll get some hunky guy and set him up with a cast of "average" women. Of course, in TV-land, they think "ugly" is like the women of "Coyote Ugly". (aside: wow) But two obvious questions: (1) Would self-respecting women really do this if they knew the premise? (to the extent anybody in reality tv is self-respecting) (2) Assuming the Big Twist is bringing in Hot Women to compete, is there any possibility the guy would choose one of the "average" women?

Oooo – how about this for Big Twist #2: It turns out that the Hot Girls are really call girls! Hmm...maybe that’s a little too racy for NBC, though.

Anyway, I still don't think I would watch "Plain Jane" (but I will sue for royalties), but the questions interest me. I hesitate to answer the first one, but here is one man’s opinion. I think they will have no problem finding women for those spots. And it's not because women are more fame-hungry than men or anything. While the guys on “Average Joe” appear to accept the fact they are toads, but urge Hot Girl to find the prince within, I think the "Plain Janes" are more likely to see themselves as beautiful on the outside too (I still predict they will be much hotter than the literal average American woman) and will want a guy to see that too. And that’s not to say that these women will be delusional or anything; there are probably women out there who find the "Average Joes" hot as well. Partly this is based on my own observation that plenty of women I'm not attracted to have mates. But also I think women today have fewer illusions about what sells.

As for the second question, barring the "call girl twist" (I won't provide a link for that move), I'm not optimistic for Jane. And maybe not even with the twist. Wow. Am I saying that men are more superficial than women? Hmm...I may have to rethink my whole world view.

Well, I can't come to any conclusions about this. And I don’t know if we have any women readers (if so, we’re happy to have ya!), but I would love to hear your thoughts on this. Thanks.

I usually try very hard to avoid thinking about pro football, but this story starts there. I happened to see a blurb in Sports Illustrated noting that, due to NFL scheduling quirks, the New York Jets had played at the Oakland Raiders each of the last five seasons (plus two playoff games), and might play there next year too. My thoughts did not turn to scheduling oddities, fairness or parity within the league, or any other on-the-field matters.

Instead, my first thought was this. The California tax code sets pretty high tax rates on entertainers and athletes appearing in the state. So, those players have to pay California taxes for every game they play there. For a pro football player, that could amount to thousands of dollars for a day's work. Several states now have a "jock tax," but California was first, in 1991 (allegedly in retribution for the Bulls beating the Lakers in the NBA Finals), and it brings in $80 million a year.

Well, that sucks for the Jets, but it made me wonder how Arnold Swarzenegger's been doing since we last heard from him. And it looks like the answer is "fair to poor." He got one victory when the legislature agreed to repeal the law giving illegal immigrants drivers' licenses, which became the first bill he signed as the Gubernator.

But Swarzenegger is also proposing this huge $15 billion bond program which will put the state that much more in debt. And the spending cuts already made are looking pretty drastic. The proposed budget cuts even go after education and transportation, but still only amount to $2 billion. Next year's budget is $14 billion in the hole. There simply aren't enough cuts to make without shutting the place down. The Democrats want tax increases, but one commentator suggests it is "fanciful" that they could even get half the difference in tax increases.

It's times like this I'm glad I don't know nothing 'bout economics, because it makes me free to say I have no idea how they're going to fix this. Swarzenegger's budget director had an op-ed in the Wall Street Journal today, basically proclaiming "All is well!" She talks a lot about spending cuts, but doesn't say how they will add up to enough to "make California solvent," as she promises Swarzenegger will do.

I don't live in California, but I'm still concerned about such a large economy going into the sewer. I don't think Swarzenegger is a fool, but more and more it's looking like he bit off more than he can chew. Maybe the jock-in-chief should at least consider raising the jock tax. Sorry, Jets.

"There are 10 types of people in the world...those who understand binary, and those who don't."

Last night, after a long, dreary slog of a day, I finally lay down to go to sleep. I'm laying there for a good while and all of a sudden I think to myself, "You know, it might be easier to get to sleep if you turned the light off. Ugh.

Today's song lyric:

I see today with a newsprint fray
My night is colored headache gray.
Don't wake me with so much.
--"Daysleeper," by R.E.M.

Finally, these thoughts, found here:

Wednesday blows. Monday, for all its problems, at least offers the prospect of a fresh start; and Friday we love, of course. But Wednesday? Vile. Squatting between what you hoped to have accomplished by now and what you might eke out if you haul ass for the rest of the week, Wednesday points to where you come up short. It's a captious narc of a day. Wednesday, you suck.

A relatively new blog with which I have become quite enamored is Iraq Now. The blog author is a US Army officer stationed in Iraq. Whatever your think of our efforts in Iraq, you would do well to inform your opinions about the situation via Iraq Now. Once you check it out, I am sure you will agree that Captain Jason van Steenwyk's in-country perspective on the situation is an indispensable source.

We're still getting the hang of this whole thing, and the blog may be in a state of flux from time to time. We're still not sure about the color scheme, for example.

But I wanted to point out a couple of minor changes. First, we have a new, easier-to-type-out email address, which you can see in the left column. The old address still works, and we'll check it too.

Also, we have added a few more links in the right column. Obviously, these aren't the only sites we visit, and some of these aren't even visited by both of your humble bloggers. But we didn't see any need to act as a news clearinghouse. Speaking only for myself, I linked to these sites because I read them very often and think they are worth pointing out. If readers have any suggestions for sites that may be worth linking to, please let us know.

While Milbarge tends to put a lot of stock in Dahlia Lithwick's musings regarding the Supreme Court, I am less inclined to do so. I am more inclined to approach her analysis with some skepticism. For another take on her analysis of Locke v. Davey, take a gander at Eugene Volokh's post here.

With a day to think about some of the questions raised in Locke v. Davey (first discussed here below), I am now at least hopeful (though not optimistic) that the result might actually be 5-4 in favor of the Washington scholarship program. This is based in part on summaries of the argument session here from Slate's Dahlia Lithwick and here from the Post's Charles Lane.

As always in close cases, Justice O'Connor is the key. I know it's dangerous to make these sorts of predictions based on questioning at oral argument, but she seemed nervous about the scope of Davey's argument. Ever the pragmatist, O'Connor appeared uncomfortable with Davey's contention that the state must fund religious education. The liberal Justices tried to convince their more conservative colleagues that Davey's position would constitutionalize vouchers, and not only that, but would require government funding of proselyzation in all manner of contexts.

I think the Court will be desperate to draw a line of some kind. I don't think it's so terrible that Davey gets a few dollars that he can use to study business or ministry as he chooses. But his overall position just goes too far. Justice Ginsburg asked his lawyer: "We know we can give funding to religious schools if we want to, but what if we don't want to?"

I will be surprised if Justice O'Connor says that states have no choice here. Her support in the vouchers case was premised on the individual choice given to families, but I think she will be less supportive of a system where the state hands money directly over to churches. She noted to Solicitor General Ted Olson that we have "a couple of centuries of practice in this country of not funding religious instruction with tax money."

We also have a couple of decades of practice in this country of Justice O'Connor agreeing with the conservatives on the principle of a matter, but waffling when the rubber meets the road. Her Penry/Atkins flip on executing the retarded, her affirmative action flips, and her flips in the Washington Legal Foundation IOLTA cases are the examples that spring to mind first. I think (hope) that here, she will say that vouchers are constitutional if the state wants to have them, but she'll back off and won't say that states have to fund them. It wouldn't surprise me to see her write separately (leading to a 4-1-4 result) striking down the Washington program on narrow tailoring grounds but not reaching the broader questions. I could live with that. I will try to answer some of the other attendant questions if time permits.

I pass along two posts from Eugene Volokh, and I’ll just point to them rather than repeat him, because all I could really say is “ditto.”

In this one, a legislator in Georgia has proposed a law allowing local governments to post the Ten Commandments, and declared that if a public official in one of those governments does not believe in God, “then that person is more likely to be corrupt.” I agree with Volokh that this is a bigoted statement, and I doubt it has basis in fact either.

In this one, the ACLU is all atwitter over a Louisiana teacher disciplining a student. Waiting in line for recess, one second-grader was talking to another and asked about the child’s mother and father. The boy, 7, responded that he didn’t have a father; he had two mothers, because his mother is gay. When asked what “gay” meant, the boy answered that this is when a girl likes a girl. A teacher overheard and kept the boy inside and made him write sentences promising not to use the word “gay” in school because it is insulting. He was made to fill out a disciplinary form (Volokh has the links to pictures, and they are worth seeing) noting that he had “sed bad wurds.” This would be funny if it weren’t so appallingly sad and wrong. Maybe the teacher's time would be better spent teaching her students how to spell.

The hamster responsible for smooth operation at Blogger seems to have fallen off the wheel tonight. I know we run a pretty rinky-dink operation here, but this appears to be a fairly regular occurrence at Blogger, and not our fault. Anyway, sorry if you came looking for us and couldn’t find us. We’re always available via email (well, at least Hotmail zonks out a lot less often).

If you are really desperate for something to do, try your hand at Mr. Picassohead (link via Volokh).