Mike Pence quotes the Bible on foreign policy

Indiana Gov. Mike Pence, who is totally not running for President, decided to quote the Bible while giving a speech on foreign policy. He said, “The Old Book says, ‘If the trumpet does not sound a clear call, who will know to get ready for battle?’” This is from 1 Corinthians 14:8.

But there are other Bible verses that give more specific advice on foreign policy that Gov. Pence could have quoted. It would have been pretty badass if he had gone with Deuteronomy.

Deuteronomy 7:1-2 and 20:10-17:

When the Lord your God brings you into the land you are entering to possess and drives out before you many nations . . . and when the Lord your God has delivered them over to you and you have defeated them, then you must destroy them totally. Make no treaty with them, and show them no mercy.
. . .
When you march up to attack a city, make its people an offer of peace. If they accept and open their gates, all the people in it shall be subject to forced labor and shall work for you. If they refuse to make peace and they engage you in battle, lay siege to that city. When the Lord your God delivers it into your hand, put to the sword all the men in it. As for the women, the children, the livestock and everything else in the city, you may take these as plunder for yourselves. And you may use the plunder the Lord your God gives you from your enemies. This is how you are to treat all the cities that are at a distance from you and do not belong to the nations nearby.

However, in the cities of the nations the Lord your God is giving you as an inheritance, do not leave alive anything that breathes. Completely destroy[a] them . . . as the Lord your God has commanded you.

Indiana Appeals Marriage Equality Decision to the U.S. Supreme Court

Via the Indiana Law Blog, Indiana’s Attorney General Greg Zoeller has filed a petition for certiorari with the United States Supreme Court asking for review of the 7th Circuit’s blistering opinion holding that Indiana’s “marriage protection” law violated the Equal Protection Clause of the 14th Amendment to the United States Constitution.

The respondent same sex couples seem to have filed their response almost at once. They agree that the U.S. Supreme Court should consider the case. They state the question as:

Whether a statute violates the Equal Protection and Due Process Clauses of the Fourteenth Amendment to the U.S. Constitution by prohibiting same-sex couples from marrying and by refusing to recognize their lawful, out-of-state marriages.

versus the State’s characterization of the issue presented:

1. Whether the Due Process and Equal Protection Clauses of the Fourteenth Amendment permit States to define marriage as a legal union between one man and one woman.

2. Whether the Due Process and Equal Protection Clauses permit States to treat as void same-sex marriages from other jurisdictions.

The State’s characterization of the issue is slightly disingenuous. Nobody is saying that the State can’t define marriage as a legal union between one man and one woman; only that the definition violates the Equal Protection Clause if it also excludes same sex couples from inclusion in the definition.

As to the timing, I suspect there was collaboration between the Plaintiffs and the State to get their filings into the Supreme Court by the deadline for the Supreme Court to consider the case during this session. The Attorney General’s press release notes that:

Today was the deadline for Indiana to file its cert petition in order to be considered along with the Utah, Oklahoma and Virginia petitions during the Supreme Court’s first conference Sept. 29 where justices will to decide which cases to hear early in their next term, which begins in October and lasts through June 2015.

In fact, that was probably one reason for the 7th Circuit panel’s rapid turn around time between hearing oral argument and issuing its opinion.

Just browsing, I see that the State cites a 1997 law review article from Judge Posner entitled, “Should there be homosexual marriage and, if so, who should decide?” 95 Mich. L. Rev. 1578 (1997). However, one of the citations to this piece by the State, at least, is misleading. They quote a bit by Posner where he says that there is formal equality inasmuch as gays are allowed to marry opposite sex partners just like heterosexual couples but somehow manage to miss the next sentence where he says that the practical effect is to “exclude homosexuals from a fundamental social institution.”

Posner’s 1997 article is a review of a piece by Prof. William Eskridge entitled “The Case for Same Sex Marriage.” Posner is generally respectful of Prof. Eskridge’s work but takes issue with Eskridge’s historical accounts of gay couples. Posner offers speculation that the rise of intolerance against gays in the West corresponds with the rise of “companionate marriage” — marriage where the couples are supposed to be companions instead of the woman being chiefly a breeder for the man. (My unstudied notion was that marriage was more of an evolution from a property-centered arrangement to romantic relationships, emulating such relationships as they became fashionable in the royal courts.) In any event, Posner suggested that companionate relationships had the effect of outing the gay people who didn’t share such companionship and thereby provoking increased hostility against them.

In the law review article, Posner observes that public opinion in favor of same sex marriages had shifted from unthinkable to slight. (The last 17 years has, of course, seen a quantum leap in that public support.) And public support seems to be at the crux of his disagreement with Eskridge about whether the Supreme Court should recognize a constitutional right being violated if same sex marriage is illegal. He says that Eskridge’s arguments were fine legal arguments but, based on the lack of public support, such arguments would be “usurpative” if adopted by the Supreme Court. It’s an interesting question whether public support ever had a legally had a role to play (as a practical matter, it often does — see for example, the Supreme Court’s internment of Japanese during World War II). But, if it does, public support is now on the side of same sex marriage along with those technical legal arguments. And, in 1997, Posner said that before the Supreme Court found a right to same sex marriage in the Constitution, public opinion would have to shift, a state court or state legislature should adopt same sex marriage as a policy, and the rest of the nation should learn from exercise.

This post has been a little unstructured, but that’s all I have time for at the moment, so here you go.

R.I.P. Ron Melichar

I was sad to learn of the passing of former Tippecanoe County Circuit Court Judge Ron Melichar. He served as a Circuit Court Judge for three terms, from (I believe) 1984 – 2002. Before that he was a member of my firm (well before I joined!). He and our founding partner, Fred Hoffman, practiced together for quite some time.

By the time I joined the firm, Ron had been the Circuit Court judge for quite some time and I came to enjoy the trivia questions he put up on the white board in the court room. Although, to be honest, I can’t remember if it was a daily or weekly question he liked to put up. I can’t say I knew him well, but he was an enthusiast of the civil war, vacations in northern Michigan, and the Chicago Tribune.

Rest in Peace, Judge Melichar.

Any Given Sunday

Sheila Kennedy has a good post this morning on the similarities between football and religion; particularly the group dynamics involved. She mentions an anthropologist named Harvey Whitehouse who has suggested that belief in the supernatural is incidental to religion – what really matters are the rituals that foster group cohesion, creating personal bonds that people are willing to die for.

Rather than generate new content on this (hopefully) lazy Sunday (not to be confused with lazy Muncie), I’ll just cut & paste my comment:

Reminds me of an extension of the development of complex organisms in the first place. First the replicating single-cell organisms had no worries – resources were abundant. Then they replicated themselves into scarcity. But, those who started eating the others had abundance. Then it became an arms race, cells combining to develop offensive and defensive mechanisms. Those who were most successful in defending themselves while eliminating the competition replicated the most DNA.

Eventually you get to where combining the organisms means forming packs and tribes and groups. And you’re not just replicating your DNA; you’re replicating memes like religious beliefs. The meme that surrounds itself with defense mechanisms and arranges for elimination of competing memes is more likely to replicate itself.

Few people are willing to die for their football team; but to a lot of people the particulars of the football that gets played is incidental. They don’t love their team because their team is objectively “the best.” Or even because the particular players on their chosen team remain the same from year to year and they feel a personal bond with the personnel. Rather, it’s a pretty clear “us” versus “them” event, and by choosing an “us,” you get to be part of a group. I don’t think that I’m atypical in finding most sporting events more exciting if I adopt a rooting interest – even an arbitrary one.

Stay of the Same Sex Marriage Injunctions Following 7th Circuit Decision

As most folks probably know, the 7th Circuit issued a decision today affirming Judge Young’s injunction prohibiting enforcement of Indiana’s law banning same sex marriage. An interesting technical question is what effect, if any, this decision has on the stay (via the Indiana Law Blog) issued by a 7th Circuit panel in June, a few days after Judge Young’s decision. As the Indiana Law Blog reports, the Attorney General has issued a statement indicating its position that the stay remains in effect.

So what gives? It has to do with Fed. R. App. Proc. 41 which discusses issuance of a mandate by the Circuit Clerk following an opinion of the 7th Circuit. The issuance of a mandate terminates the Court of Appeals jurisdiction over the case, and it instructs the lower court how to proceed. Typically, the mandate issues seven days after the time has expired (usually two weeks – see Fed. R. App. Proc. 40) for an appellant to petition for rehearing by the full court (instead of just the panel who issued the opinion) or after a timely filed petition is denied. This gives the appellants the opportunity to exhaust their remedies with the Court of Appeals without giving the District Court conflicting opinions about entering judgments and whatnot.

Based on the research I’ve done so far, I think the issue would be clear if the District Court had issued the stay — absent a mandate, the District Court would not be instructed to do anything; lift its stay or otherwise. The District Court’s stay would therefore be in effect.

There might well be case law on this I have not yet discovered, but the effect of the panel opinion on the stay seems more ambiguous given the fact that it was the 7th Circuit panel who issued today’s opinion that entered the stay under Fed. R. App. Proc 8(a)(2) in the first place. Presumably this panel could have lifted its own stay by issuing an order to that effect at any time during these proceedings. The question is whether the panel has, in fact, lifted the stay – at least by implication by virtue of today’s opinion – when the 7th Circuit panel wrote, “The district court judgments invalidating and enjoining these two states’ prohibitions of same-sex marriage are AFFIRMED.” Does that language override the earlier order of this same panel that said the injunction was stayed pending resolution of the appeal?

I don’t know that the answer to that is necessarily clear (absent, as I said, case law on point that I have not yet found). But the Indiana Attorney General has taken the position that the answer is that today’s opinion does not override the panel’s earlier order issuing a stay. My guess would be that most or all state officials would defer to the Attorney General under these circumstances.

The Attorney General has indicated its intent to seek a stay from the United States Supreme Court pending its petition for certiorari to the Supreme Court and that the Supreme Court has granted such stays in two other cases. If the United States Supreme Court orders a stay, that obviously clears up any ambiguity.

Attorney Reprimanded in Blackford County for Bold Anti-Sock Stance

As I’ve mentioned in the past on Twitter, a day that begins with the donning of socks is, in most ways that matter, a day that has already been lost. But, I’m also craven in matters of fashion and matters of judicial preference. So, if judges want socks, as a member of the bar, I wear socks. However, this practitioner in Blackford County, Indiana is made of sterner stuff (pdf). (h/t Indiana Law Blog).

The judge observed that this otherwise appropriately attired practitioner was not wearing socks. (I actually had never really contemplated a judge looking all that intently at my feet – I’d probably better remember to polish my shoes!) The judge did what a decent judge will do when bothered by something somewhat incidental to a lawyer’s performance in court — he took the guy aside privately and said that he’d like the lawyer to wear socks in the courtroom. According to the subsequent court order, the lawyer responded that he hates wearing socks. (And what right thinking member of society doesn’t?) But, then he probably went a (sockless) step too far, telling the judge that until he saw orders or other legal authority to the contrary, he’d continue his sockless ways.

This challenge did not present a great deal of difficulty for the judge, who presumably creates legal authority all the time. He crafted the order linked above. The judge noted the local rule requiring that attorneys wear “proper business attire” while in court. The judge went further to find, that socks constitute proper business attire “for male members of the bar presenting cases before the court.” (Where is the Patriarchy when you need it?!?) For good measure, the judge also noted that the attorney in question had been observed without a tie in an open collar shirt.

On a more serious note, I’ll just offer some observations with the recognition that what I know about this issue is solely from the context of that order. The events may well have looked different from the perspective of the attorney in question, so this isn’t meant as a critique of that person. Dress codes are almost entirely arbitrary in any situation. They are not dissimilar from codes of proper speech, prohibiting “bad” words — the choice of which are inevitably arbitrary. But, compliance with these arbitrary standards is one way we show respect or at least deference to the cultures and authorities that seek to impose these rules. With respect to courts and the rule of law, this insistence on proper attire drifts into “medium is the message” territory. If everyone involved in the legal process were, for example, dressed up like they were going to a Jimmy Buffet concert, the impact of the legal process would be different. Sure, you’d still have the guys with the guns behind the court orders. But you’d probably need more of them because there would be less reflexive obedience to the rule of law if the system were less formal.

Lawyers are part of this process and, as such, should genuflect to the Court except in those matters and in such ways as justice requires to the contrary. Fashion isn’t one of them. And if the judge offers correction in private, take the hint and don’t encourage him to make the correction public.

Howard County Judge & Kokomo Mayor contempt incident raises interesting questions

Jim Shella, writing for WISHTV, reports that a Howard County judge has, at least ostensibly, found the Kokomo mayor in contempt for issues having to do with construction around the courthouse.

Outside the Howard County Courthouse there is construction underway on the Industrial Heritage Trail. The construction has at times forced changes in the normal delivery of jail inmates to the courthouse.

Then, on Tuesday afternoon construction materials were placed in the driveway blocking access. To Judge Menges that was an act of contempt by Mayor Goodnight.

He sent the Sheriff to Goodnight’s office with a message. “If you don’t come with me over to the judge’s chamber,” Goodnight quoted the Sheriff as saying, “we’re going to take you to jail.”

Through a spokesperson the judge said he can’t comment on the record. His contempt order says the mayor blocked access to the courthouse and says it was “intentional and done solely for the purpose of disrupting the regular proceedings of the court.”

I’m not going to say I have the authoritative answer on these issues, particularly based on what is probably an incomplete set of facts, but some questions come to mind:

1. Wouldn’t that be, at best, indirect contempt, requiring the court to provide due process, including appointment of a special judge, before threatening to incarcerate the mayor? (See IC 34-47-3).

2. Given that there are multiple judges at the Howard County courthouse is Judge Menges authorized to take action absent the consent of his colleagues with respect to matters concerning the courthouse generally as opposed to his court room in particular?

3. When does that part of the courthouse stop being under the jurisdiction of the state judiciary in the person of the judge (or judges) and start being under the jurisdiction of the Board of Commissioners? If, for example, the judge asserts the authority to clear obstructions to the drive; does he then become liable if someone slips and falls on the driveway from a hazard he had the power to remedy?

4. Did the City have a construction easement that authorized the use of the real estate in that fashion?

This would be a good exercise for a law school exam!

UpdatePat Munsey, writing for the Kokomo Perspective, has some additional details.

On the order of Howard Superior Court I Judge William Menges, Goodnight was brought to court and summarily sentenced to the Howard County Jail on a charge of direct contempt of court.

During the hearing, Menges explained that the courthouse’s west entrance had been blocked, making it impossible for the county to transport “dangerous” prisoners to the court for a Friday hearing. Initially, the county determined that it would fill an area with gravel leading to the concrete pad so that the transports could be completed.

The rest of the story describes Menges summarizing information he seems to have received second and third hand before finding Mayor Goodnight in “direct contempt.”

IC 34-47-2 describes “direct contempt” as involving activity taking place “in a court of record” while the court is in session. That’s clearly not what took place here. Sometimes the courts take the position that the legislature can go pound sand when it comes to defining the court’s powers, so maybe the Indiana Supreme Court has its own definition of “direct contempt” that goes beyond the statute. But I can’t imagine that what’s described in these news reports satisfies the requirements of due process.

Update 2 The court’s order on “direct contempt” is here (pdf). The court’s rationale for calling this “direct contempt” (which can be punished with much less in the way of process) instead of “indirect contempt” (which would seem to require appointment of a special judge) is that the judge witnessed the placement of construction materials in the courthouse drive. I don’t see that the court had direct, first-hand knowledge of the mayor’s acts or omissions.

Science Wants You To Coddle Your Teenagers To Help Them Learn

Rachel Morello, writing for State Impact Indiana, has a story about doctors recommending later school start times for middle schools and high schools to accommodate adolescents need for sleep and thereby improve their ability to learn while they’re at school. This will never catch on because life is a morality play, and anything that seems enjoyable or pleasant is immediately suspect. Can’t coddle “kids these days”(tm) you know. Misery builds fortitude which is why piling on homework and yelling at students to work harder will always be a more popular approach to education by policy makers.

Oral Arguments in 7th Circuit Marriage Equality Lawsuits – Posner, Williams, and Hamilton Panel Judges

The 7th Circuit is conducting oral arguments today in combined Indiana and Wisconsin cases considering the constitutionality of laws prohibiting same sex marriages. The panel drawn to hear the cases are Judges Posner, Williams, and Hamilton. Posner is a Reagan appointee, Williams is a Clinton appointee, and Hamilton is an Obama appointee. This is not a good draw for the Attorney Generals of the states seeking to have their laws prohibiting same sex marriages upheld.

Posner who, just from a two-dimensional political analysis, might be expected to be the most sympathetic to the marriage laws on the books is not a reliable enthusiast for socially conservative positions. Looking at his Wikipedia page (how is that for legal analysis!) he has expressed opinions sympathetic to abortion rights and skeptical of the drug war. With respect to gay marriage in particular, Judge Posner offered a discussion at his blog with Gary Becker. He believes the available evidence suggests that homosexuality is innate and, as such, “if homosexuality is innate, it becomes difficult to see why it should be thought to require regulation.” He concludes:

It seems that the only remaining basis for opposition to homosexual marriage, or to legal equality between homosexuals and heterosexuals in general, is religious. Many devout Christians, Jews, and Muslims are strongly opposed to homosexual marriage, and to homosexuality more generally. Why they are is unclear. If as appears homosexuality is innate, and therefore natural (and indeed there is homosexuality among animals), and if homosexuals are not an antisocial segment of the population, why should they be thought to be offending against God’s will? Stated differently, why has sex come to play such a large role in the Abrahamic religions? I do not know the answer. But whatever the answer, the United States is not a theocracy and should hesitate to enact laws that serve religious rather than pragmatic secular aims, such as material welfare and national security.

(emphasis added).

I can’t imagine the chances of the State attorneys general gets any better with Judges Williams and Hamilton. Ian Millhiser, writing for Think Progress, says of the panel draw, “Marriage equality supporters just won the lottery.”

A couple of health care news items

Rick Callahan, writing for the Associated Press, has an article entitled “Health-care fears loom large in gay marriage cases.” The article discusses how health care benefits can be a strong motivating force for gay partners who want recognition of their relationship as a marriage which entitles them to their partner’s health care benefits.

Yesterday, Tony Cook, writing for the Indianapolis Star had an article on Seema Verma, an individual who works as a health care consultant for the State of Indiana, designing the “Healthy Indiana Plan” while working as a vendor for that plan.

No time to comment, but it’s unfortunate that health care protection can be so variable even while it’s so important to our lives, meanwhile it’s hard to escape the suspicion that the system is corrupt, and we’re chumps enriching some privileged few who have gamed the system.