Monday, June 23, 2014

A First Amendment Right to Commit Adultery


A North Carolina court discovered such a thing in Rothrock v. Cooke (N.C. Super. Ct. June 11, 2014).  Mrs. Rothrock had sued her husband's paramour, Miss Cooke, for Alienation of Affection and Criminal Conversation.  Underlying these alliterative "heart balm" torts is the societal sentiment that adultery is wrong and that the victims are entitled to seek redress that is less pointed than bent golf clubs in the front yard, or a smoking .38.

But Judge John O. Craig, III was disdainful of these long-standing common law torts, and dismissed the wife's suit.  His rational for doing so essentially formulates a First Amendment right to break the Seventh Commandment:
AA inherently imposes a chilling effect upon free speech, free association, and expressive conduct within a constitutionally-protected area, or between people with a close familial or amicable relationships.  As for CC, its overly broad reach into constitutionally-protected areas infringes upon the First Amendment's protection of consensual conduct occurring within the private confines of one's home, as well as an individual's right to freely associate with another. 
This particular "association" would be horizontal, apparently.

For Judge Craig, words of seduction directed to another man's wife is protected speech, and so is the adulterous sex act itself, since it is expressive conduct -- it's how we tell one another to have a good day, in the 21st century.

Judge Craig continues his analysis to find "no compelling state interest in protecting the marital relationship" that can justify suppressing this sort of "free speech."  Furthermore:
No substantial, important, or even legitimate state interest exists for punishing affection or intimacy expressed through consensual sexual conduct that takes place in private.
Judge Craig doesn't explain how he determined that protecting the marital relationship is not a legitimate state interest, or whether the people or their representatives get a say in the matter.  It should not be surprising to read such statements in a judicial opinion after the U.S. Supreme Court's ruling in Windsor, although Judge Craig does not cite that ruling, or any other dealing with same-sex marriage, which is indeed a surprise.  He does, however, rely in part upon Lawrence, which invalidated Texas's anti-sodomy law.

In the end, Judge Craig's analysis of North Carolina's "heart balm" statutes diminishes the societal value of marriage.  The state is allowed very little say in what "marriage" is, and after the license issues, the state is to butt out until it's time to divide up the loot and the progeny.  If there are any negative consequences from the dissolution of a marriage, the state must simply look the other way.  The state has no legitimate interest in trying to prevent them.

Judge Craig sums up as follows:
Therefor, AA and CC are unconstitutional violations of the First Amendment's guarantee of free speech, the First Amendment's guaranty of free association, and the Fourteenth Amendment's substantive due process protection of private conduct involving consenting adults, because each claim for relief fails in the face of a strict scrutiny analysis.  
There might be sound policy reasons for a legislature to do away with "heart balm" torts -- most states have already done so.  But for a judge to make what would otherwise be a legislative decision by framing it as a First Amendment issue, is to abase the First Amendment.  If we are to consider any activity that takes place between "consenting adults" in private to be protected speech, then many other laws and civil causes of action must be called into question: tortious interference with contract, prostitution, any and all solicitation crimes, drug laws, antitrust laws, etc.

Again, there might be sound reasons for doing away with all such laws and transitioning towards a purely libertarian landscape, but the First Amendment is not the vehicle for doing so.

Friday, June 13, 2014

Cage the Ignorant

"Ignorance of the law is no excuse."  That is the retort frequently given by the arresting officer, prosecutor, or judge to the cry of a citizen surprised by an obscure law.  In a decision as recent as 2008, the Oklahoma Supreme Court offered this helpful reminder as it brought down the ax: "It is axiomatic, that in most instances, ignorance of the law is no excuse, and every person is presumed to know the law."

That is quite a presumption, but is one that must be made if we are to have a functioning civil society operating according to set laws.  When I told my mother I did not understand the meaning of her bare preposition, "Take the trash out," I was not spared punishment.  Similarly, there can be no mercy for the bank robber who says he doesn't understand proper withdrawal procedures.

But what of the 5,106 pieces of legislation offered up in the most recent session of the Oklahoma legislature, 1,028 of which were completed?  Does my presumed knowledge extend that far?  Or how about the Federal Register, now growing at the rate of 286 pages per day?

If each of us is charged with the duty to know, understand, and follow all laws existing now and in the future, then we all have reason to keep government small.  The alternative is more cages for the ignorant.


Friday, May 2, 2014

No Room for Moral Sentiment

In January, the United States District Court for the Northern District of Oklahoma released its ruling in Bishop v. United States, declaring Oklahoma's legal definition of marriage to be unconstitutional.  As part of his constitutional analysis, Judge Kern determined that homosexuals are a non-suspect class, and therefore the Oklahoma law must be reviewed merely for "rationality."  This standard requires the court to uphold the law "if there is any reasonable conceivable state of facts that could provide a rational basis for the classification" that the law draws between citizens.  Copelin-Brown v. N.M. State Personnel Office, 399 F.3d 1248, 1255 (10th Cir. 2005).  (This is in contrast with an earlier decision invalidating a similar law in Utah, in which the court reasoned that any legal barriers to same-sex marriage is a classification based upon sex, and therefor the law must be subjected to intermediate scrutiny.)

Judge Kern then considers and rejects possible justifications for the discriminatory law, including "promoting morality," which was not even argued by the defendants.  Judge Kern writes, "moral disapproval of homosexuals as a class, or same-sex marriage as a practice, is not a permissible justification for a law."  For support, he cites Lawrence v. Texas, 539 U.S. 558 (2003), the U. S. Supreme Court decision striking down Texas's anti-sodomy law: "[T]he fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”  Judge Kern sums up by saying that "moral disapproval" is not a permissible justification for a law.  No doubt, such a view would seem perverse to Sir William Blacksone, who wrote: "Law is is the embodiment of the moral sentiment of the people."

I immediately thought of Judge Kern's words, this week, when I read the news story that Los Angeles has "banned the use of bullhooks, pitchforks, baseball bats and other goads that circus trainers use to control elephants and other exotic animals."  City Councillor Paul Koretz, who voted in favor of the ban, called the use of bullhooks "inhumane and unhealthy."  By "inhumane," he does not mean that humans are being harmed in any way, but that humans are behaving in a manner in which they shouldn't.  By what standard, you may ask?  Well, by Councillor Koretz's own sensibilities, and we will presume by those of his constituents.  We might go so far as to say the use of bullhooks goes against the moral sentiment of the people.

If Judge Kern is correct, then how can such a law have any legitimacy?  The same goes for all laws against animal cruelty, including Oklahoma's ban on cockfighting, approved in 2002 by 56 percent of the voters.  Since moral sentiment has been cast into outer judicial darkness, what is the permissible justification for such laws?  With no apologies to PETA and Ke$ha, elephants and roosters are property without rights of their own.  What is the rational basis for a law that interferes with a person's discretion over his own property if "the fact that the governing majority in a State has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice"?

It is worth noting that Oklahoma's law defining marriage as being between a man and a woman lacks the coercive force of anti-cruelty laws.  Oklahoma's definition of marriage does not prohibit conduct by private individuals -- a same-sex couple may still have a "marriage" ceremony and hold themselves out as being married.  The cockfighting ban, however, imposes criminal penalties for violating the law.  It is difficult for me to understand how the citizens of Oklahoma can fine and imprison private individuals for engaging in behavior they just don't like, but those same citizens cannot prevent their own government from granting official recognition for behavior they just don't like.

Maybe Judge Kern can explain it.






Friday, January 10, 2014

How Low Will It Go?

This is an update to this earlier post about a foreclosed property I was interested in bidding on at sheriff's sale.  The bank's appraisers valued it at $146,000 at the time of the sheriff's sale.  Afterwards, it was listed for sale at $121,900.  Almost six months later, the property still hasn't sold.  The price has been lowered multiple times and now rests at $79,000.

As stated in my earlier post, the indebtedness was around $112,000 at the time of the foreclosure sale.  I'm assuming the lender was made whole by Fannie Mae.  The difference between that number and the ultimate sale price will be Fannie Mae's loss.


Monday, December 30, 2013

Kitchen decision already heading for U. S. Supreme Court

This is an update to last week's blog post about the Kitchen decision from a federal district court in Utah.

SCOTUSblog reports:

The U.S. Court of Appeals for the Tenth Circuit, finding that the state of Utah has not made its case for delaying same-sex marriages, refused on Tuesday night to block a federal judge’s order striking down a voter-approved ban on those marriages.  State officials then told news organizations in the state that they would now ask the Supreme Court to issue a delay, with a filing there likely on Thursday.
Justice Sotomayor will be the one to make the initial decision on whether to grant a stay.  Read the full story here.

UPDATE:  Justice Sotomayor granted the stay.

Thursday, December 26, 2013

A shoe drops in the 10th Circuit



Last Friday, in Derek Kitchen, et al. v. Gary R. Herbert, et al., a federal judge ruled that Utah’s constitutional amendment banning state recognition of same-sex "marriage" is unconstitutional.  “The court hereby declares that Amendment 3 is unconstitutional because it denies the Plaintiffs their rights to due process and equal protection under the Fourteenth Amendment of the United States Constitution.”  The full text of the decision can be read here.
In a July blog entry, I wrote about a similar federal judicial decision out of Ohio.  The title of my blog entry, "The Other Shoe Dropped in Ohio," was a reference to a line from Justice Scalia's dissenting opinion in U.S. v. Windsor, the U.S. Supreme Court decision that struck down that portion of the Defense of Marriage Act that defines marriage for federal purposes.  Justice Scalia scoffed at the majority's assurances that its decision would be limited to the federal level.  "As far as this Court is concerned, no one should be fooled; it is just a matter of listening and waiting for the other shoe."  By this, he meant that it was only a matter of time until a court would apply Windsor at the state level.  The Kitchen decision proved Scalia's predictive acumen. 
The decision did indeed rely upon Windsor ("the Court's decision in Windsor does not answer the question presented here, but its reasoning is nevertheless highly relevant . . . ").  Ironically, it cites Scalia more than any other Supreme Court Justice, adopting his argument that the Windsor majority's reasoning necessarily compels a similar outcome at the state level.  
So the Kitchen court, in its own reasoning, progresses through a series of Supreme Court decisions, culminating with Windsor, to conclude that it is compelled to rule against the Utah amendment.  The judge would have us believe that he is not rewriting the Constitution, rather it is we who have changed:
Here, it is not the Constitution that has changed, but the knowledge of what it means to be gay or lesbian.  The court cannot ignore the fact that the Plaintiffs are able to develop a committed, intimate relationship with a person of the same sex but not with a person of the opposite sex.  The court, and the State, must adapt to this changed understanding. 
But whose knowledge has changed and who is it that "must" adapt because of that change?  The implication of the judge's ruling is that his knowledge, and not that of the overwhelming majority of the voters of Utah that has changed.  So it is not through deliberative debate and decision making through any sort of democratic means that "adaption" will occur, but by judicial compulsion.  
The judicial compulsion that is the essence of the Kitchen decision has greater significance for the state of Oklahoma than did that of the Ohio decision, because Utah and Oklahoma are both in the 10th Circuit.  Lawyers for the state of Utah have already announced that they are appealing the Utah decision.  If the U.S. Court of Appeals for the 10th Circuit upholds the decision, that ruling will become binding precedent on federal courts in Oklahoma, in which case Oklahoma's own constitutional amendment, which was approved by 76% of the voters, will be in jeopardy.
So I was not surprised to learn that litigants in Oklahoma have already attempted to capitalize upon the Utah decision.  Lawyers for two same-sex couples suing for the right to marry and to have a "marriage" from another jurisdiction recognized in Oklahoma have filed an additional brief following the federal ruling out of Utah.  The brief can be read here
The couples make the simple argument that the state constitutional amendment at issue in the pending Oklahoma litigation is very much like the one in Utah that was ruled to be in violation of the U.S. Constitution.  The facts and legal arguments in both cases are much the same.  (The Oklahoma litigation has been pending much longer than the one in Utah.) The couples argue that the efficient administration of justice requires that the federal court in Oklahoma rule in their favor so that they can take part in the same appeals process that is now advancing.  


Tuesday, November 12, 2013

Three times the accounts, three times the fun


It seems that everyone with a blog has a tale about their failed attempt to sign up on-line for Obamacare.  My own tale is already a month old and is no different from all the others, but I'm starting to feel like there is a noticeable void in my blog without out, so here it is . . . 

Shortly before the launch of www.healthcare.gov, I visited www.healthcare.org, which appears to be a website set up by the healthcare insurance industry to promote the still-gestating government-managed scheme.  It attempted to dispel the many "myths" about ACA, and gave assurances that the skies would always be sunny atop Big Rock Candy Mountain.  

The website has a handy calculator you can use to determine whether you will qualify for a government subsidy for the purchase of mandated coverage.  I do not qualify.  Another section walks you through the process of determining whether you will be hit with a tax/penalty and how much that will be.  Yes, I would owe a tax/penalty but for the grandfathered status of my existing high-deductible policy.  If I change my policy in any way, then the tax/penalty will kick in.

The website claims that, according to the Congressional Budget Office, less than 2% of Americans will actually be hit with a tax/penalty.  Except for my tenuous grandfather status, I would fall into that 2% category.  I'm finding it hard to believe that my circumstances are really that unique.

A couple of days after the launch of www.healthcare.gov, I decided to check it out just to see what my options are.  I went into the office early, thinking I might need a few extra minutes to complete the process.  A half an hour later, I hadn't managed to get as far as creating an account for logging in.  For a lengthy period of time, the screen would tell me to be patient while I waited for the scree for creating an account. Once it proceeded to the account creation page, I entered the requested information and established a username and password.  The system sent a confirmation link to my email address and I clicked on it.  I received a message telling me my account was successfully created.  I was automatically directed to the log-in page.  I entered my username and password and I received a message telling me they were invalid.  I tried again – same result.  I clicked on “forgot password.”  A new link was emailed to me.  I followed the link, answered the security questions, and then reset my password.  Then a message told me that the reset failed because I did not answer the security questions correctly.  (I know I answered them correctly.  I couldn't have forgotten the name of my first pet that quickly.)  I started all over, creating a new account.  Same result.

In the end, I created three accounts, none of which would allow me to log in.  (Now I'm likely on a government watch list for creating multiple accounts.)  I had the option of calling an 800-number, or seek the assistance of a government funded "Navigator" who could coach me on lying my way through the system, but instead, I decided to abandon the quest.  I emailed a local insurance agent who emailed me multiple quotes for Obama-compliant policies within a couple of hours.