This is what happens when you find a stranger in the Alps

April 23, 2014

This is a pretty familiar story line. A businessman wants to open a strip club. Some members of the local community decide that they do not want that kind of thing in their town. The resistance is usually faith-based (which is where the wheels really come off). I fail to understand how anyone can believe in a supreme being, who created all of heaven and earth, but would be upset at some boobies.

The City this time is Destin, Florida. As reported in their local paper, it seems that the driving force behind the attempt to keep the strip club out of town was “ a vocal group of citizens determined to keep an adult entertainment establishment away from a nearby neighborhood and church.” (source)

The strip club sued, under the theory that the city’s attempts to drive them out of town was a violation of their First Amendment rights. And, after spending $300,000 in attorneys’ fees, the city finally backed down – and paid the strip club owner $2.1 million for his First Amendment rights. There will be no strip club, so the zealots can be happy. But, the money to pay the settlement comes out of the City of Destin’s taxpayers’ pockets.

Dollars to cover the buyout will come from the city’s $5.2 million unassigned fund balance, putting a serious dent in reserves accumulated over the years to use in emergencies. (source)

So almost half of the city’s reserve fund gone. I wonder if the churches will give up some of their tax exempt status to help replenish the fund.

Congratulations to First Amendment Lawyer, Gary Edinger, who was lead counsel for the strip club in this case.


BOOM! Down goes Texas

February 26, 2014

I felt a great disturbance in the Douchebag Force, as if millions of lowlife bigot assholes suddenly cried out in terror, and were suddenly silenced. I think something wonderful has happened.

(Gay marriage ban in Texas struck down — fuck you, Rick Perry)

See DeLeon v. Perry.


Atheists, leave the Bladensburg Cross Alone

February 26, 2014

You do not need to be as sharp as a mohel’s blade to figure out that I am not the most religious guy in the world. In fact, take the view that the First Amendment provides us both freedom of religion and freedom from religion.

So when I see someone file a lawsuit to remove a huge crucifix from public land, my initial reaction is “bravo.”

But, sometimes my fellow travelers in the freedom from religion movement are, I think, a bit too zealous. Today’s news brings us such an example.

In American Humanist Ass’n v. Maryland-National Capital Park and Planning Comm’n, the Humnanists are seeking to tear down a huge concrete crucifix from public land in the DC Suburbs. Fundraising for the cross began in 1918, and it was formally dedicated in 1925. The purpose of it was to honor WWI casualties, with a distinctly christian message.

In fact, the fundraising pledge made it pretty obvious that the intent was clearly religious in nature (as if a Godzilla sized cross needed any other clues).

The fundraising pledge for the Bladensburg Cross

The fundraising pledge for the Bladensburg Cross

“To any passerby, a huge cross such as this can only be understood as endorsing Christianity,” said Appignani Humanist Legal Center Legal Director David Niose. “On public property, that violates the Establishment Clause. We can all support memorials to those who have fought for our country, but they cannot take the form of a massive religious symbol on government property.” (source)

I see their point.

When the government endorses religion, that violates the Establishment Clause and should be prohibited. Displays of crucifixes, especially in unavoidable and huge displays on public property, could very well be construed as a governmental endorsement of the christian faith. When government uses a religious symbol to try and cram that religion down the citizens’ throats, that violates the Establishment Clause.

The test is given to us in Lemon v. Kurtzman, 403 U.S. 602 (1971).

  1. The government action must have a secular purpose;
  2. Its principal or primary effect must be one that neither advances nor inhibits religion;
  3. The government action must not foster an excessive government entanglement with religion.

Permissible conduct must satisfy all three requirements. Edwards v. Aguillard, 482 U.S. 578, 583 (1987); Vernon v. City of Los Angeles, 27 F.3d 1385, 1396-97 (9th Cir. 1994). Despite the colorful potshots that conservative justices like Scalia have taken over the years at this standard, Lemon remains good law. (Scalia wrote “like some ghoul in a late-night horror movie that repeatedly sits up in its grave and shuffles abroad after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence” Lamb’s Chapel v. Ctr. Moriches Union Free Sch. Dist., 397 (1992)).

In 2005, the Supreme Court issued a pair of decisions that many say only leads to more confusion when considering whether a religious display violates the Constitution (I think the pair makes it abundantly clear). The cases were McCreary County v. ACLU of Kentucky, 545 U.S. 844 (2005) and Van Orden v. Perry, 545 U.S. 677 (2005).

In McCreary, two Kentucky counties posted King James versions of the Ten Commandments in their courthouses. One county had a local pastor unveil the display. After the legal battle heated up, they dishonestly put up post hoc secular justifications for the displays, and added other tokens to the displays to water down the religious message, but the court saw through this. The purpose of the displays was to promote Christianity, and that isn’t allowed under the Establishment Clause.

In Van Orden, the Decalogue had been standing there for 40 years among 17 monuments and 21 historical markers, “all designed to illustrate the “ideals” of those who settled in Texas and of those who have lived there since that time.” (source). In other words, the monument was placed there at a different time, as part of a larger display, and nobody was using it to try and shove religion down any one else’s throat.

I do not know where I would draw the line, but when a display has been around for almost 100 years without incident, I think it might be time to let it be. I wouldn’t give a complete pass based on age, as there are some pretty old displays that really do need to be removed. For example, the “Easter Cross” in La Jolla, CA. It was originally put up in the 1950s for no other purpose but to promote Christianity. In fact, part of its purpose and effect was to signal to Jews that they were not welcome in La Jolla. (source) In 1989, when litigation over the cross began, the dishonest christians decided to violate one of their Ten Commandments and lie that the cross was really a “war memorial.” They then began the long pretextual process of retro-fitting it as a war memorial. That one doesn’t get a historical pass in my book.

The Bladensburg Cross, on the other hand, might have been put up for a religious purpose. But, it was put up in 1925. Would it matter to me if it was 1935, 1945, 1965? I do not know where to draw the line when it comes to age — but, I think that the longer it has been there, the more of a pass it should get — especially if it was sincerely placed there as a war memorial. I recognize that a lot of Atheists, Jews, Muslims, Mormons, and whatever died in WWI, and the memorial is not exactly a symbol of inclusion. But, in 1925, things were a bit different. I hardly think that anyone involved in the fundraising or decisionmaking process was doing so out of a 2005 style “stick in the eye to the First Amendment.”

I think we need to give Oren a little more juice. Perhaps a “historically acceptable” test to import into the Lemon test and ask the following questions.

  1. Has the monument been in place for a very long time without incident?
  2. Was it erected for any improper purpose?
  3. Has it come to stand as a symbol of exclusion?

Atheists really need to learn to pick and choose their battles better. In American Atheists v. Duncan, atheists won a case in which dead state troopers received crucifix roadside memorials. In Weinbaum v. Las Cruces, they lost when they tried to force a town to change its logo and name. Battles like those, and this new one in Bladensburg, simply dull the edge of the knife when Atheists seek to remove religious displays that truly do deserve to be destroyed.


Knox. Knox. No Justice There.

January 31, 2014

By Tatiana von Tauber

What do you think of this Amanda Knox story?

I watched her interview here . It’s moving. I’ve been following the case for years and I empathize as sometimes facts lead to conclusions which create illusion, not truth and it is here we discover the depth of trust (and fault), in ourselves and our systems.

What is justice? Truly, at what level can another human being say “this person deserves x, y or z for punishment” and call it a day? Who is satisfied? What or whom does that “justice” affect and what is its effect? Will our community be better off with someone like Amanda in jail so we are safer or are we merely seeking justice built on what we believe a victim’s life is worth because it’s socially demanded we punish those who kill?

If Amanda Knox did aid in murder, has her emotional turmoil and years already spent in prison – in the battle for her freedom – not counted as “time served in prison” if prison is defined as a place of punishment? Has her particular suffering not counted as anything at all? For the Italian court to accuse Amanda Knox of guilt after innocence, and weigh a hefty 28 year term on her is so striking I feel violated and I’m just a spectator!

Let’s face it, society places value on murders. They happen all the time. Every day.  Why is the destruction of Knox’s life more important than the destruction of yesterday’s murderer? And what about tomorrow’s murderer? What is jail for? Is it a place to make another person suffer for their pain onto another or is it a holding cell to keep the rest of us safer? What factors determine when it’s both? Or is jail a place where we feel, as a society, a sense of accomplishment in that we are doing what we’re supposed to do to “bad people”? Is there hope to rehabilitate or only institutionalize?

I don’t know if Amanda is guilty or not. I do know that I find her to have suffered a good deal for the circumstances upon which she found herself. There’s a point where another human being should suffer for murder (Hitler comes to mind) and then there’s a point where another human being should be given reprieve when being played with like a pawn in a game and having clearly suffered through an aftermath of such accusation. How is 28 years more of prison time a case of justice served at this point in time?

Amanda Knox presents herself very authentically. Maybe she is faking it but to imprison her for another 28 years for a crime that’s been tainted is a crime onto itself. It is way too harsh and unreasonable. Consider that killing the enemy in war constitutes as justified murder – freedom fighting we call it – but Knox’s situation demands almost three more decades of her life? From an innocent verdict to “guilty beyond a reasonable doubt”?  Should this be the perfect case of “let it go”?

Life gets complicated when you discover that human beings have varied value and thus death isn’t the most atrocious thing we can do onto another.  The freedom we are given should never, ever be taken lightly as that option for choice is always at risk of being taken from others. I commend Knox’s ability to stay so vigilant with her freedom at hand and it’s terrible to have freedom handed to you like a toy to jump for.

For Italy, home of the Vatican, to not be an example of forgiveness in the light of tainted investigations (and prior innocent verdict!) certainly seems in line with the church’s very own hypocritical philosophy. Italy should have risen above common human nature of reaction. Punishing Knox will do absolutely nothing to bring back the victim, show or teach a lesson that hasn’t already been shown or taught, nor will it contribute to Knox’s potential good, to which I believe Knox is capable of expressing given the opportunity.

By demanding to lock her up further, Italy has shown an example not of justice but “murder to the spirit”. Knox, if imprisoned, would be as lifeless as the victim in the sense that neither could flourish, live a life to better themselves or others and nor contribute to the world through the good that is within them because they weren’t given a chance. One loss of life is enough but when grounds are not certain, why not give benefit of the doubt and rise above human weakness? Sometimes bad things happen and while time is the best healer (and eye-opener), it’s best to move on quickly to weave those experiences into new creations. Give people a chance. Justice is a human construct and in the case of Knox, justice begs for reinterpretation.

Amanda Knox interview: (http://gma.yahoo.com/amanda-knox-39-couldn-39-t-believe-hearing-071851472–abc-news-topstories.html?vp=1)


Buzz Aldrin held a “secret” religious ceremony on the moon

July 20, 2013

Screen shot 2013-07-20 at 7.55.02 AMEven as an atheist, with a strong belief in the separation of church and state (and a wish that people all over the world would shake off the yoke of superstition), I think this is a pretty cool story.

Buzz Aldrin decided to hold his own private communion ceremony in the LEM before walking on the moon.

Aldrin silently read a passage from the book of John that he had written out on a 3×5 card: “I am the vine, you are the branches. Whoever remains in me, and I in him, will bear much fruit; for you can do nothing without me.” Then he took out the miniature chalice and bread and wine from his personal allowance pouch. “I poured the wine into the chalice our church had given me,” he told Guideposts magazine in 1970. “In the one-sixth gravity of the moon the wine curled slowly and gracefully up the side of the cup. It was interesting to think that the very first liquid ever poured on the moon, and the first food eaten there, were communion elements.” Neil Armstrong, the other astronaut onboard, did not participate. (source)

He later expressed some degree of regret.

Aldrin later questioned his own decision to celebrate the Christian practice. “Perhaps if I had it to do over again, I would not choose to celebrate communion,” he wrote in his memoir. “Although it was a deeply meaningful experience for me, it was a Christian sacrament, and we had come to the moon in the name of all mankind—be they Christians, Jews, Muslims, animists, agnostics, or atheists. But at the time I could think of no better way to acknowledge the enormity of the Apollo 11 experience than by giving thanks to God.” (source)

Even as an atheist, I probably would have told him to go ahead and do it. Frankly, I probably would have participated, had I been lucky enough to be in the LEM that day.

H/T: Mickey


The First Amendment, sucking baby penis, and a suggestion for how to handle circumcision laws

January 6, 2013

I find the whole idea of mutilating a baby’s genitals to be pretty fucked up.

Doing it because you think your imaginary friend wants you too is majorly fucked up. I don’t think too much of any supernatural being who actually cares about baby dick, but the Abrahamic notion of “God” is a being with serious psychological disorders.

Some “ultra-Orthodox” sects of Judaism think that baby-dick-mutilation should come with an added garnish of crazy: They believe that when you hack off a piece of a little boy’s penis, you should then immediately suck his dick.

Of course, anyone outside of this little sub-group of wackos probably finds the practice to be utterly insane. If you follow any Abrahamic religion, hold your outrage, buddy. You have no room to judge.
But, it seems that it is also at least arguably medically dangerous — since a couple of babies a year (in New York City alone) wind up with herpes from the post-slicing baby-dick-sucking. According to the New York Times, 11 babies caught herpes from this practice from 2004 to 2011, with two dying and two suffering brain damage.(source)

Responding to the health issues, New York City required the baby-dick-sucker guy to give the parents a consent form, warning them about the dangers of having a piece of their baby’s dick sliced off, and then having an old bearded guy suck their baby’s dick.

Seems reasonable, I guess. I mean, it might be more reasonable to say that genital mutilation should be banned altogether, and failing that, you ought to have to do it in a medically sterile manner — you know, clean the blood off with something other than an old bearded guy’s mouth.

But New York City’s government knows better than to challenge bizzarro desert cults’ superstitions. So they went with trying to warn parents that if you let an old guy suck a freshly mutilated penis, his mouth just might not be the most sterile cleaning rag you can find.

The baby-dick-suckers were not amused.

[Attorney] Shay Dvoretzky, said the practice, which is prevalent in parts of the ultra-Orthodox community, is a constitutionally protected religious activity. He said that requiring ritual circumcisers, known collectively as mohelim, to be involved in conveying the city’s perspective on the procedure would infringe upon their rights of free speech.

“That lies at the heart of First Amendment protection,” Mr. Dvoretzky said. (source)

And (don’t hate me) I just might have to side with the baby dick suckers on this one.

Under Miami Herald v. Tornillo, the government can not compel you to speak any more than it can stop you from speaking. Requiring a shaman from any cult to convey the government’s message runs afoul of that principle.

So what, if anything, can be done?

I suppose that the City could try to simply say “no more baby dick sucking around these parts.” I can not imagine that sucking a baby’s dick would be acceptable in any other context. But, if the cult members say that this is, indeed, part of a sincerely-held religious belief (which I can’t challenge them on) then where would the government get off saying that the practice should be banned? Is saving two lives every 7 years, and 11 cases of herpes infection enough of a governmental interest to warrant infringement upon this group’s sincerely held religious beliefs?

On the other hand, how about banning baby genital mutilation altogether? A two-second-suck of the baby penis is icky, but I can’t imagine that it causes all that much harm (unless there’s been fresh mutilation). On the other hand, genital mutilation of millions of defenseless boys a year just might be something that we could ban.

Denmark is investigating whether it should under the nation’s health code. A little movement in California to ban the practice got kicked in the nuts. And, I think any effort to actually ban circumcision would be doomed to failure. Facts are irrelevant when confronted with the shrill cries of “anti-Semitism.” (I think we all need to remember that circumcision is not exclusively a Jewish thing, not by a long shot – but that if you have an issue with circumcision because you have an issue with Jews, then you’re a fucking asshole).

So what should be done?

I say balance the interests. Let’s not burn political capital by having to argue with irrational fuckheads who believe in some seriously-deranged space man, who are capable of hijacking any rational discussion. Lets not risk running afoul of the First Amendment either.

Let’s privatize the issue.

I suggest that any child who gets genitally mutilated as a minor should have a private cause of action against any and all individuals involved, for say 10 years after reaching the age of majority. That way, if you’re raised in some stupid cult, you have an adequate period of time in which to free your mind, or choose an adulthood of slavery to superstition. If, in that 10 year period, you figure out that you’re not pleased about having part of your dick cut off, you should be able to bring a claim against the doctor or mohel. Further, if you’re going to perform circumcisions as a doctor or mohel, you ought to have to carry insurance or a bond to cover any future damages brought by disgruntled victims in the future (as there’s a damn good chance that the mutilator will be dead by the time the case ripens).

Of course, this will lead to a slight burden on the practice. I don’t know what bonding companies or insurance companies will want to charge for such a risk. But, that’s just our beloved free market in action. I’m sure that no matter what it costs, there will be someone who actually believes that this magic space man wants baby dicks mutilated. There will still be parents who think so too. Therefore, lets say it costs a shitton of money to buy the dick-mutilator insurance. So what? If you’re a dick-mutilating parent, I sure as shit hope that it means a lot to you, and you’re not slicing up kid’s dick lightly. So if it winds up costing a grand or so to slice up your boy’s pecker, so what? I mean, is it really a lot of money in the grand scheme of things, if you really do believe in god, and you think that he’s such a fucking weirdo that he wants your boy’s dick cut up?

Circumcision still allowed, but there is some avenue for justice for its victims. But, if you get circumcised as, for example, a Muslim baby and then you grow up to fully believe that Allah was good to want you to be hacked up, then no harm, no foul.

I’d imagine that non-religious circumcision would drop to almost nothing, but so what? I’m concerned about protecting a Jewish parents’ right to practice their religion, as much as I may mock it. I’m not concerned with the parents who say “lets cut up his dick because, umm, just because.”

There, problem solved. Religion respected. No anti-Semitism. No First Amendment problem.


Federal Circuit’s COCKSUCKER Decision Sucks

December 20, 2012

cork soaker

As many long-time readers know, Section 2(a) of the Trademark Act is one of my pet peeves. This is the section of the Trademark Act that gives pretty much unfettered discretion to a trademark examiner to deny a trademark registration on the basis that the mark itself is “immoral” or “scandalous.” The Federal Circuit just decided In Re Fox, in which it reaffirmed some very bad law, and in which it lacked the integrity to address some Constitutional fictions upon which most 2(a) denials are based.

“[n]o trademark by which the goods of the applicant may be distinguished from the goods of others shall be refused registration on the principal register on account of its nature unless it[] (a) [c]onsists of or comprises immoral, deceptive, or scandalous matter.” 15 U.S.C. § 1052.

One of the most absurd elements of a 2(a) denial is that the evidentiary standard is so open to abuse. An examiner may prove “immorality” or “scandalousness” by simply establishing that the mark is “vulgar.” In re Boulevard Entm’t, Inc., 334 F.3d 1336, 1340 (Fed. Cir. 2003). Essentially, if the examiner finds a single online dictionary or chat board where someone says “that’s vulgar,” then that is usually enough for the examiner, the TTAB, and the Federal Circuit.

So, another 2(a) denial is just a “ho hum” event. But, this portion of the opinion shows just how little respect the Federal Circuit has for Constitutional issues. I mean, come on guys, at least try and make it look like you didn’t just mail it in.

The prohibition on “immoral . . . or scandalous” trademarks was first codified in the 1905 revision of the trademark laws, see Act of Feb. 20, 1905, Pub. L. No. 58- 84, § 5(a), 33 Stat. 724, 725. This court and its predeces- sor have long assumed that the prohibition “is not an attempt to legislate morality, but, rather, a judgment by the Congress that [scandalous] marks not occupy the time, services, and use of funds of the federal government.” In re Mavety Media Grp. Ltd., 33 F.3d 1367, 1374 (Fed. Cir. 1994) (quotation marks omitted). Because a refusal to register a mark has no bearing on the applicant’s ability to use the mark, we have held that § 1052(a) does not implicate the First Amendment rights of trade- mark applicants. See id. (Op. at 2)

I find it outrageous not just because the court is wrong, but because the court was so glib and dismissive of the First Amendment.

Trademarks propose a commercial transaction; speech that proposes a commercial transaction is “commercial speech” and thus subject to First Amendment protection. Virginia State Bd. Of Pharmacy v. Virginia Citizens Consumer Council, 425 U.S. 748, 762 (1976). Trademarks convey messages about the type, cost and quality of the product or service associated with the mark. See Friedman v. Rogers, 440 U. S. 1, 11 (1979). The trademark is a tightly targeted bit of expressive activity that seeks to persuade a potential customer to choose one product over another, either due to the identification of goods or to the communicative element of the trademark itself.

Thus far, all USPTO decisions regarding the constitutionality of Section 2(A) rely upon the improperly decided case In re Robert L. McGinley, 660 F.2d 41 (Fed Cir. 1981).

McGinley is where we get the idea that since trademark applicants are still free to use the trademarks, then there is no abridgment of speech if your trademark is denied registration due to its content. However, this reasoning is simply shoddy and contrary to a body of First Amendment jurisprudence. For example, in striking down New York’s “Son of Sam” law, which prohibited criminals from profiting from writing books about their crimes, the Supreme Court held “[a] statute is presumptively inconsistent with the First Amendment if it imposes a financial burden on speakers because of the content of their speech.” Simon & Schuster v. New York State Crime Victims Bd., 502 U.S. 105, 115 (1991). In the Son of Sam case, the authors were still free to write, but were denied the financial benefits of their labors. That was the end of that law. This appears to completely dispense with the McGinley reasoning.

Bad Frog Brewery, Inc. v. New York States Liquor Authority, 134 F.3d 87 (2d Cir. 1998) analyzed a similar issue. In that case, the appellant sought to use a trademark of a frog giving the finger. The Second Circuit held that since trademarks are commercial speech, prohibition on use of so-called “offensive” trademarks did not advance the stated governmental purpose of protecting children from vulgarity or promoting temperance, nor was it narrowly tailored to serve that purpose. Not binding on the Fed. Cir., but I think that the Fed. Cir. is the wrong place to challenge McGinley. There is no indication that the Fed. Cir. will ever admit that it was wrong in McGinley, and every time it gets a chance, it doubles down.

Finally, there can be no clearer authority for the death of Section 2(a) than Lawrence v. Texas. (“The fact a State’s governing majority has traditionally viewed a particular practice as immoral is not a sufficient reason for upholding a law prohibiting the practice.”)

“Morality” is not a valid reason to confer or deny a governmental benefit – instead the government must articulate a reason why registration of a mark might be harmful, and then apply that reason to the particular circumstances at hand, in a narrow manner. The government has done none of this in this case, nor in any other 2(a) denial.

2(a) Delendum Est!


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