More from the silly lawsuit department.

A federal court is being asked to grant constitutional rights to five killer whales that perform at marine parks — an unprecedented and quixotic legal action that is nonetheless “likely to stoke an ongoing, intense debate at America’s law schools over expansion of animal rights,” according to the Associated Press.

People for the Ethical Treatment of Animals (PETA) is accusing the SeaWorld marine parks of keeping five star-performer whales in conditions that violate the 13th Amendment’a ban on “slavery” and “involuntary servitude.” PETA relishes engaging in the court of public opinion, as evidenced by its provocative anti-fur and pro-vegan campaigns. Real courts are different, though.

Harvard Law School constitutional scholar Larry Tribe, while a supporter of animal rights, notes that “some Americans might find it bizarre or insulting to equate treatment of animals to the sufferings of human slavery.” SeaWorld Accused of Enslaving Killer Whales. Duh!

The original complaint, filed last October, alleged that

Section One of the Thirteenth Amendment prohibits the conditions of slavery and involuntary servitude without regard to the identity of the victim and without reference to “persons.” Although enacted in the historical context of African slavery, the Supreme Court has repeatedly declared that the Thirteenth Amendment is not so limited. Because the Amendment forbids any form of slavery, it embodies a principle that can be (and over the years has been) defined and expanded by common law to address morally unjust conditions of bondage and forced service existing anywhere in the United States.

“Slavery is slavery, and it does not depend on the species of the slave any more than it depends on gender, race or religion,” says general counsel to PETA, Jeffrey Kerr. Yet this overlooks the obvious issue that animals of all sorts, whether domesticated (like cattle and sheep), pets (dogs and cats) or zoological (lions, tigers and bears, oh my!) have since the founding of the United States been treated legally as property, i.e., “chattels.” And if unborn children in the womb have no independent legal existence — with which no one can argue, regardless of the legality of abortion — and minor children can be forced to work for their parents at home without pay, how in the world could the U.S. Constitution treat zoo specimens the same as black folks? Humans are different; that’s why we have laws, politics and a Constitution in the first place.

One does not have to be a PETA-basher to recognize that the “humane” treatment of animals is not at all the same as treating animals as humans.

P.S. SeaWorld filed a motion to dismiss on December 19, which is due to be heard by the federal court in San Diego on Feb, 12, 2012.

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Whatever one thinks of Roger Clemens’ veracity (let alone possible steroid use), the idea that his criminal trial ends without a verdict because the prosecutors blatantly disregarded the court’s instructions by showing the jury inadmissible evidence is just astounding. Brings to mind former Supreme Court Justice Benjamin Cardozo’s famous question from the 1920s — should the suspect go free because the constable has blundered?

From the reports I’ve read, this was either incompetence or intentional overreaching, as the U.S. Attorneys’ office played in open court a videotape of congressional testimony in which a member read aloud portions of an affidavit (from Andy Petti’s wife) the court had declared — correctly, in my view — could not be used (at least not until rebuttal, if the defense attacked Pettit’s credibility). Astonishing. The meaning of this fiacso is that the government, no less and perhaps more than any other litigant, cannot under our American system of constitutional justice avoid its responsibilities to ensure fairness in criminal prosecutions.

Posted via email from glenn’s posterous.

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The outcry over federal district judge Vaughn Walker’s decision overturning California’s Proposition 8 — which declared same-sex marriages unlawful — is hardly atypical where the U.S. Constitution is concerned. Why should a single judge, or nine (Supreme Court) judges, have the power to override the legitimate majority vote of citizens in a democracy?

The answer is that this is how it has always been in America. The constitutional checks and balances established by the Founding Fathers were intended to make the United States a republic; a political union in which the rights of those who are NOT in the majority are protected. That is why the Bill of Rights was added almost immediately after ratification of the Constitution. That is why the First Amendment protects the “free exercise” of religion from government control. Because in America, civil rights include the right not to be oppressed by the majority when essential liberties are concerned.

This is exactly how our constitutional democracy is supposed to work. Don’t blame federal judges for doing their jobs. The concept of judicial review has been at the core of our checks-and-balances democracy since the landmark Marbury vs. Madison ruling in 1803.

The Pro9 8 Decision—One Judge vs. 7 Million Voters? | SF Chronicle.

One can disagree with whether morality is a valid basis for legislation outlawing certain behavior. Constitutional law is split, with some decisions, like the 2003 case in which the Supreme Court overturned criminalization of consensual sodomy, indicating that moral values cannot trump individual rights. That rationale, of course, could also be extended to a variety of issues — from abortion to alcohol to public sex or nudity — in which only the sensibilities of others are affected.

The difference here is that, under the law as it stands now, legislation must have a secular purpose to survive constitutional challenge. The proponents of Prop 8 argued only that the initiative was intended to further society’s interest in procreation, that is child-bearing.  (They mysteriously passed up the opportunity to position moral values as the governmental interest, which in my judgment would have made this a much harder case.)  But if procreation were the objective, Judge Walker cogently explained, then fertility should be a precondition to traditional marriage, and couples unable to conceive or not wanting children would be barred from marrying. Not so long ago, interracial marriages were also unlawful. The outcry against the 1967 Supreme Court decision striking down such laws subsided rather quickly, and in my view that’s a good thing.

As if to prove Walker’s point, Los Angeles Cardinal Roger Mahony released a statement on Wednesday that said, “Those of us who supported Prop 8 and worked for its passage did so for one reason: We truly believe that marriage was instituted by God for the specific purpose of carrying out God’s plan for the world and human society. Period.”

Why the Prop 8 Rung Scares Religious Conservatives | NewsOK

200 years ago slavery was accepted and written into the Constitution. The Fourteenth Amendment changed all that after the Dred Scott decision declared that slaves were property and not citizens. It took a brutal civil war to make the leap, but America was and is better off. Whether or not you agree that gay marriage should be constitutionally protected, the system of judicial review is quintessentially American and something to be celebrated.

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Speech is indeed effectively free in the age of YouTube.  So that does undermine the scarcity argument traditionally used for the (now-defunct) “fairness doctrine” and the like. But some conservative pundits, like Gordon Crovitz in the Wall Street Journal today, argue this makes political campaign contribution limits both obsolete and unconstitutional.  Why Campaign Political Speech Restrictions on Unions and Corporations Make No Sense [WSJ.com].

The problem is that while speech is free, campaign $$ is not.  Crovitz equates money with political speech, something the Supreme Court did (erroneously in my view) way back in the 1970s in upholding some, but not all, Watergate-era campaign spending and contribution limits.  That does not mean, as he implies, that restricting corporate political contributions is “silly,” because Cravitz’s own analysis shows that it is communication where technology has leveled the playing field, not political campaigns, with all their expensive pre-Web 2.0 trappings like air travel, rally planing and event staging.

In his defense, what Crovitz appears to be saying is that bans on pure corporate political speech, rather than monetary contributions, are problematic:

Whatever the arguments for blocking direct contributions by corporations and unions, McCain-Feingold goes beyond this and directly limits First Amendment speech. The Constitution doesn’t promise “equal” speech, just the freedom to speak.

I agree with that.  But the premise that “direct contributions” are different should be the start, not a footnote, to this debate.

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This story illustrates that even countries with legal traditions very different from that of the United States can teach Americans something about values. In France, criminal investigations follow the “j’accuse” model, under the Code pénal, where a single judge — known as the Juge d’Instruction — controls investigation and charging of suspects, and under which a defendant’s silence can be held against him and the burden of proof is far less than the “beyond a reasonable doubt” standard required here.  France has also taken a rather different approach to civil law on the Internet, for instance holding Yahoo! liable for anti-semitic postings by users.

But these differences also go in another direction.  Several weeks ago the French Assembly passed a measure, known as the “three strikes” law, that required ISPs to terminate Internet access for users found to have downloaded copyrighted materials at least three times. That law has now been set aside as unconstitutional (yes, France actually has a constitution!) by the French courts.

The French Constitutional Council ruled Wednesday that the law’s reliance on the government committee to make decisions on when to cut off people’s Internet access made it incompatible with the French Constitution. Since the “Internet is an element of freedom of speech and the right to consume,” only a judge has the power to deprive someone of it, according to the decision.

As a result, the law will be enacted without the “third-strike” of cutting off Internet access. Instead the government agency only will be permitted to send out mail and email warnings to suspected pirates. If it wants to further sanction an alleged illegal downloader, it will have to go to court.

Sarkozy’s Web-Piracy Fight Dealt Blow [WSJ.com].

While the decision rests ultimately on what we in the U.S. would term separation-of-powers, namely the relationship among different branches of government, it also introduces a concept completely alien to the American legal system.  Although the Declaration of Independence starts with several self-evident truths, “liberty” and the First Amendment have never been interpreted to protect a “fundamental right” to communicate via the Internet, let alone break copyright laws.  So in the U.S., a government agency can access one’s Internet usage from an ISP without a warrant (and sometimes without a subpoena) and a subscriber’s relationship with his or her ISP is a creature of private contract, not statutory, let alone constitutional, protection.

I am not suggesting that America adopt any or all of the French code-based legal system.  What I believe this shows, however, is that even cultures which most Americans would regard as less concerned with the basic freedoms of its citizens — Americans would never stand for a system under which prosecutor and judge were combined in a single agency, judge or other government official — can teach us something about the values underlying the legal relationship of people to their government.  Here in America we are blessed with constitutional rights.  But basic human needs, like housing, jobs and medical care, are not a legal right.  Internet access is very important to success in today’s economy, and I for one suggest that perhaps a debate on whether relegating that issue to the private, unilateral terms of service (ToS) of ISPs and Web site operators is a paradigm that is unlikely to be successful in the long term.

Goodbye “freedom fries.”  You Frenchies aren’t so bad after all.

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Everyone remembers being in high school and rebelling against authority, including the facists who run such institutions with their hall passes and dance chaperones. Apparently, today things are even more restrictive, including breathalyzer tests administered routinely during the school day. Sobriety Tests Are Becoming Part of the School Day [NYTimes.com].

What I find most interesting, however, is not that this stuff is occurring — that’s just an update of the battles waged between teenagers and teachers since James Dean in the 1950s — but that communities are themselves rebelling against the exercise of such intrusive school authority. The courts routinely uphold almost all steps schools invoke against students, regardless of the privacy implications, on the ground that minors do not enjoy the same First Amendment rights as adults and that schools act in loco parentis (in the place of the parents). But as the Times reports, “such policies easily survive legal challenges, but often crumple under community opposition.”

That’s a good example of why the law is not always (indeed, rarely) the answer to social problems. It’s also an illustration that even parents, of which I am now one, can sometimes live up to the ideal of “Do as I Do,” not just “Do as I Say.”

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Supreme Court Justice Scalia warned of it in 2003 year when the court ruled sodomy laws unconstitutional, and now it has happened. A federal judge in Western Pennsylavnia has decided that the government has no right to outlaw the private consumption of obscene materials in the privacy of one’s home. Handed down last week, but only highlighted on Nightline last evening, this decision could be an historic change in the status of “morality” legislation in the United States.

With an emphasis on the 2003 Supreme Court decision striking down Texas’ laws against homosexual sodomy, U.S. District Judge Gary Lancaster ruled Thursday [January 20] that “the government can no longer rely on the advancement of a moral code, i.e., preventing consenting adults from entertaining lewd and lascivious thoughts as a legitimate, let alone a compelling, state interest.”

That is, as the court held, “the federal obscenity statutes burden an individual’s fundamental right to possess, read, observe and think about what he chooses in the privacy of his own home by completely banning the distribution of obscene materials.”

Ah, I am sure those red-state social conservatives are just pining away for the days of “Reefer Madness.” Well, we’ve come a long way baby.

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Today the U.S. Supreme Court — without any dissent, even from the most conservative justices — refused to accept review of the Massachusetts decision requiring state officials there to recognize same-sex marriage. Although Supreme Court decisions in such certiorari proceedings are not precedential, it seems to me that this pretty much puts a nail into the coffin about whether the Court thinks the equal protection argument advanced in favor of gay marriage is invalid.

Just as the Court reached out in 2000 to decide Bush v. Gore, because it wanted to end the Florida recount, it could have done so with this case even though Massachusetts decided on state consitutional grounds. As the Court recognized in 2000:

The individual citizen has no federal constitutional right to vote for electors for the President of the United States unless and until the state legislature chooses a statewide election as the means to implement its power to appoint members of the Electoral College.

That same logic would obviously work to federalize same-sex marriage as a constitutional issue. But the Supremes said no, meaning there are still (believe it or not) some political questions in which the Court wants to avoid meddling. Glory be, a real conservative decision from a Supreme Court that is in actuality as activist as they come.

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The courts in America have a long history of making really stupid decisions, out of deference to current passions and to the Executive Branch, that only decades later are recognized to be unsupportable. In the 19th century the Supreme Court held that black slaves were property — the 1857 Dred Scott decision. The Civil War and the 13th Amendment overturned Dred Scott. Later (in 1897 in Plessy v. Ferguson) it ruled that “separate but equal” was adequate for public education, upholding Jim Crow laws in the South, something that stained this country until the Brown v. Board of Education case in 1954. And in its most infamous moment, the Korematsu opinion, the Court held that Japanese-American citizens could be interned in California concentration camps, and their property taken away, without any reasonable cause or suspicion, merely because of their race, due to the “exigencies” of World War II.

Well the courts attoned for these sins a little yesterday. In New York, the U.S. Court of Appeals for the Second Circuit ruled in Padilla v. Rumsfeld that holding U.S. citizens indefinitely without charges, on grounds that they have aided terrorists and are therefore “enemy combatants,” is beyond the President’s power. Their faces may be brown and heads covered with kaffiyeh, but the message is clear. Unlike WWII, the courts in today’s war on terror are not going to sit idly by while the mob mentality infecting America’s political response to terrorism runs roughshod over our constitutional rights and civil liberties. I say, thank God for that Constitution and the federal courts.

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Yesterday’s 5-4 Supreme Court decision upholding the McCain-Feingold campaign reform act — including its prohibition on use of corporate “soft money” and for funding of “issue” ads that mention candidates — is really a very modest step. That is clear when one realizes how long America has been fighting against the corrupting influence of money in politics. It’s been going on since Teddy Roosevelt, more than 100 years.

All of this yielded classic knee-jerk dissents by the Court’s conservative core (Rehnquist, Scalia, Kennedy and Thomas), who continue incorrectly to equate political contributions with political speech. But the most telling sign that the Right is whacked on this issue comes from Justice Clarence Thomas — the silent one, still suffering the ignominy a decade+ later of Anita Hill — who would not even agree that political ads “authorized” by a candidate must clearly identify that candidate. The vote here was 8-1, with everyone else on the Court joining.

This graphic from the Washington Post illustrates the point. I guess Thomas thinks that since politics is mostly about overstatement and misleading claims anyway, it is unimportant whether voters can be misled about who is making the claims. That’s absurd, but it shows how out of touch and foolish Thomas remains all these years later.

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