The Solomon Amendment

While the big case that will be having oral arguments in front of the Supreme Court this week is Ayotte–which I will have more about later this week–another interesting upcoming case is Rumsfeld v. FAIR, which concerns the constitutionality of the Solomon Amendment. The Amendment denies funding to a university that “either prohibits, or in effect prevents’ military recruiters access to students equal in quality and scope to that provided to other recruiters,” which the 3CA issued an injunction against enforcing. The question is a difficult one, which hasn’t gotten a lot of attention on liberal law blogs yet. Fortunately, Fantasy Life has a very detailed treatment of the background to the case. It’s a close and difficult case, but like her I am reluctantly inclined to think that the Amendment–while very bad policy–does not violate the First Amendment. The state’s leeway under its spending powers are much greater than if it’s enacting direct prohibitions. I certainly agree with the made by several conservatives that any exclusion from federal law based on “expressive association” has to apply to Bob Jones University just as much as it applies to the Harvard Law School. If the Solomon Amendment cannot be applied to universities, then could schools that lose funding under Title IX sue to be exempt from that too? It’s hard to come up with a principled reason why not. Making the Solomon Amendment non-applicable could have wide-ranging effects on civil rights law, and I think that the government can use its spending power to promote these kinds of purposes.

However, there’s another question of interest: assuming that the Amendment is constitutional, do the policies of most law schools violate it? The amicus brief filed by the Harvard Law School faculty argues that the policy does not. The question turns on whether the military is being denied access “on equal terms.” A policy that banned military recruiting per se would obviously violate the amendment. But Harvard’s policy doesn’t; it has neutral rules requiring businesses that want special access to on-campus recruiting to be non-discriminatory, and the military does not adhere to these rules. If it wants access to campus, it has the option of stopping its discrimination against gay people. As it stands, the military wants a special exemption to rules that apply to other recruiters. The brief argues, quite persuasively, that the language of the statute does not require such special privileges:

In short, the government has chosen to enforce the Solomon Amendment as if it conferred upon the military a unique privilege–one shared by no other employer, including other agencies of the Federal Government–to disregard neutral and generally applicable rules designed to govern the conduct of all recruiters. There is, however, a better way to read the statute–one that could resolve this case without requiring this Court to venture into the constitutional tangle presented in the parties’ briefs. Consistent with the statute’s text, its history, and the government’s own rhetoric, the Court should hold that the statute confers no such unprecedented trump. Rather, like all of its legislative predecessors, the Solomon Amendment applies only to policies that single out military recruiters for special disfavored treatment, not evenhanded policies that incidentally affect the military. Because there is nothing in the statutory text that would support a special rule for anti-discrimination policies, the only alternative would be to hold that the Solomon Amendment confers upon military employers the extraordinary right to claim immunity from any policy–no matter how evenhanded–that they deem burdensome to their recruiting efforts.

[...]

If the government’s enforcement policies with respect to the Solomon Amendment reflected an accurate view of the meaning of “in effect prevents,” then the school’s requirement would presumably be one that “in effect prevented [the] student . . . from enrolling in a[n ROTC] unit . . . at another institution.” And if that were true, institutions of higher learning could presumably be required to modify scores of neutral and generally applicable policies to ensure that their students’ ability to participate in ROTC was not impaired. Like the Solomon Amendment, then, the ROTC provision is most sensibly read to rule out only policies that target ROTC programs and participants for special negative treatment.

This interpretation of the statute seems reasonable to me. I would be tentatively inclined to defer the complex constitutional issues, and simply rule that policies that do not explicitly single out the military for differential treatment do not violate the Solomon Amendment.

Scenes From a Philistine

TBogg notes that XFL Media (TM) co-founder Roger Simon is excited about the prospect of a pro-Iraq War film (apparently designed for those who found The Green Berets a little too subtle), which will obviously do the kind of gangbuster business that America’s Heart and Soul did against Fahrenheit 9/11. (As TBogg notes, the war movies that Willis has recently appeared in have really raked in the dough too.) Simon’s optimism seems to have a solid base. Roy has used his prodigious showbiz connections to acquire a copy of Willis’ script. I think we can all agree that if the executives don’t butcher it this movie will a classic–in the sense of a movie frequently aired on American Movie Classics between Delta Force 8: Delta Against Venus and Iron Eagle 4: This Time, We Know Lou Gosset Jr. Has A Higher Script Approval Ratio Than Nic Cage.

Copyrights and the Court

The discussion of copyrights chez Ygelsias and Atrios compelled me to take another look at the Supreme Court’s recent decision in Eldred v. Ashcroft. One of the things that’s fascinating about the case is that, as Atrios notes, the Copyright Clause in Article I essentially requires itself to be read pragmatically and consequentially, granting Congress the power to grant copyrights only for the purpose of promoting “the Progress of Science and useful Arts.” As many of you may remember, the case concerned the “Sonny Bono Copyright Term Extension Act,” which (among other things) gave a 20-year extension to most existing copyrights, extending them to 95 years. The question of the case is whether this extension was consistent with this limitation on Congressional power. The Court ruled 7-2 that the Act was constitutional. This is a tough case, at least for a non-libertarian such as myself, because Congress is entitled to a large degree of deference when it comes to determining what constitutes scientific or artistic progress. While it’s certainly terrible public policy, I would probably even go along with the Court in upholding the extension of the term of new copyrights; as long as the grant isn’t literally perpetual, I don’t know of any principled way of adjudicating when, exactly, a new copyright is too long.

Where I would unquestionably vote with the dissenters, however, is with respect to the extension of existing copyrights. Particularly given how long the original grants are, there simply isn’t any remotely rational connection between expanding existing copyrights and artistic progress. The artistic products in question have already been created; extending the existing copyright cannot contribute to “progress,” and indeed can only inhibit it. The really striking thing about this case is the dissent by Breyer. As many of you are aware, Breyer is famous for his deference to Congressional power, sometimes upholding it by constructing elaborate ex post facto rationales for legislation whose relationship to the actual purposes of Congress are often highly dubious. When even Breyer can’t come up with a halfway plausible story to connect an act of Congress to the public interest, you know you’ve got nothing. As he points out, this is nothing but corporate rent-seeking that simply doesn’t have any connection whatsoever to the ends required by the Copyright Clause:

The economic effect of this 20-year extension–the longest blanket extension since the Nation’s founding–is to make the copyright term not limited, but virtually perpetual. Its primary legal effect is to grant the extended term not to authors, but to their heirs, estates, or corporate successors. And most importantly, its practical effect is not to promote, but to inhibit, the progress of “Science”–by which word the Framers meant learning or knowledge…I would find that the statute lacks the constitutionally necessary rational support (1) if the significant benefits that it bestows are private, not public; (2) if it threatens seriously to undermine the expressive values that the Copyright Clause embodies; and (3) if it cannot find justification in any significant Clause-related objective. Where, after examination of the statute, it becomes difficult, if not impossible, even to dispute these characterizations, Congress’ “choice is clearly wrong.”

I think Breyer is right. On all three points, which I think represent a reasonable standard, the legislation clearly fails; it’s not even close. Moreover, the copyright clause is fairly narrow; the possibility of a less deferential reading of the standard by a future court would not have the dire consequences that, say, returning Commerce Clause jurisprudence to its pre-New Deal state would have. As both dissenters point out, to uphold this Act would be to essentially render the Copyright Clause judicially unenforceable, and I don’t think that this is wise or necessary. But I turn the discussion over to you.

Sexual Assault Myths: More Comparative Perspectives

Shakes Sis has an interesting post about various social and legal problems with enforcing rape laws in Britain. Such problems are of particular interest to me, since a large part of my MA thesis was about an important Canadian Supreme Court decision that impeded an attempt by the legislature to restrict the extent to which myths and stereotypes affected the enforcement of sexual assault law. One of the major problems with enforcing sexual assault law is that a victim’s past sexual history would often be discussed in open court. This both made it difficult to secure convictions based on the appallingly sexist myth that having consented to sexual relations in the past somehow provides evidence of current consent, and also made victims reluctant to pursue legal claims in the first place–who wants irrelevant details of their past sexual lives discussed in open court? Parliament, after studying the issue and finding that a previous law that left a great deal of discretion to judges wasn’t working, passed a “rape shield” law that would 1)prevent the defense from introducing evidence about a victim’s “sexual reputation”–such as was used in the infamous OC rape case–and 2)prevent a victim’s sexual history from being adduced unless it met very narrowly drawn standards of probative value. The Canadian Supreme Court, however, struck down the latter section. The problems with this conclusion are clear–you can’t call a rape victim a slut in open court, but many judges may allow you to discuss her sexual history and hope some members of the jury will draw the inference for themselves–and the Court’s reasoning isn’t very persuasive. What was particularly odd about this is that the Canadian Supreme Court is ordinarily very sympathetic to feminist arguments; I was interested in explaining the case because it was so anomalous. Basically, it’s a classic case of asserting judicial supremacy; even where the court accepts the legitimacy of Parliament’s goals, the Court essentially argued that the legislature had to trust the courts to achieve these goals (despite extensive evidence that the courts couldn’t be trusted to exercise their discretion appropriately in this case.)

The problems with the Supreme Court’s “trust us” approach can be seen in the Ewanchuk case in 1998. A woman went for a job interview with Ewanchuk, who after it was completed repeatedly made physical sexual advances although she told him to stop several times and never expressed consent. Despite the fact that Ewanchuk didn’t even testify, and that the trial court found the complainant to be a credible witness, Ewanchuk was acquitted based on a defense of “implied consent.” The government appealed, but the Alberta Court of Appeal upheld the trial court. Judge John McClung–a wingnut who was a hero to reactionaries based on his anti-gay rights rulings–argued that:

…it must be pointed out that the complainant did not present herself to Ewanchuk or enter his trailer in a bonnet and crinolines. . . . she was the mother of a six-month-old baby and, along with her boyfriend, she shared an apartment with another couple…the sum of the evidence indicates that Ewanchuk’s advances to the complainant were far less criminal than hormonal…In a less litigious age going too far in the boyfriend’s car was better dealt with on site with a well-chosen expletive, a slap in the face or, if necessary, a well directed knee.”

It would be difficult to get a better summary of all the various sexist myths that have hampered the enforcement of sexual assault law. By this time, however, Parliament–in response to the Seaboyer decision–had made sexual assault a “reverse onus” defense–if a defense was based on consent, then the burden of proof rests with the defendant to prove that consent was obtained. Obviously, this makes the evidence-free “implied consent” defense the court accepted a non-starter, and the Alberta courts were unanimously overruled by the Supreme Court. Which brings us to our Sunday sermonette, from the concurring opinion by Justice Justice L’Heureux-Dube:

Both the trial judgment and that of Justice McClung do not make the basic distinction that consent is a matter of the state of mind of the complainant and belief in consent is, subject to s. 273.2 of the Criminal Code, a matter of the state of mind of the accused.

This error does not derive from the findings of fact but from mythical assumptions that when a woman says “no” she is really saying “yes”, “try again”, or “persuade me”. To paraphrase Fraser C.J. at p. 263, it denies women’s sexual autonomy and implies that women are “walking around this country in a state of constant consent to sexual activity”.

[...]

Even though McClung J.A. asserted that he had no intention of denigrating the complainant, one might wonder why he felt necessary to point out these aspects of the trial record. Could it be to express that the complainant is not a virgin? Or that she is a person of questionable moral character because she is not married and lives with her boyfriend and another couple? These comments made by an appellate judge help reinforce the myth that under such circumstances, either the complainant is less worthy of belief, she invited the sexual assault, or her sexual experience signals probable consent to further sexual activity. Based on those attributed assumptions, the implication is that if the complainant articulates her lack of consent by saying “no”, she really does not mean it and even if she does, her refusal cannot be taken as seriously as if she were a girl of “good” moral character. “Inviting” sexual assault, according to those myths, lessens the guilt of the accused…

Finally, McClung J.A. made this point: “In a less litigious age going too far in the boyfriend’s car was better dealt with on site — a well-chosen expletive, a slap in the face or, if necessary, a well-directed knee” (p. 250). According to this stereotype, women should use physical force, not resort to courts to “deal with” sexual assaults and it is not the perpetrator’s responsibility to ascertain consent, as required by s. 273.2(b), but the women’s not only to express an unequivocal “no”, but also to fight her way out of such a situation. In that sense, Susan Estrich has noted that “rape is most assuredly not the only crime in which consent is a defense; but it is the only crime that has required the victim to resist physically in order to establish nonconsent.”

All exactly right–this opinion provides a good basis for legal reform, but also explains why, as Shakes Sis explains, even good laws are often so difficult to enforce. These myths are disturbingly resilient.

As a disgraceful coda to the Ewanchuck case, after his arguments were demolished by the Supreme Court McClung wrote a letter to the National Post claiming that the reasoning of L’Heureux-Dube (whose husband had committed suicide) “could provide a plausible explanation for the disparate (and growing) number of male suicides being reported in the province of Quebec.” Lovely fellow.

Why I Am Not A Studio Executive (Or A Populist)

Tom the Dancing Bug asks a good question: what’s the dillio with all these lame movies about big families? If I’m not imagining it, the terrible-looking Rene Russo vehicle this weekend will be followed up in short order with a sequel to the same movie when it was made with Steve Martin. But looking at the boxofficemojo dailies, the question answers itself: Cheaper By The Yours, Mine and Ours is making almost as much per-screen as Walk the Line. Depressing. On the other hand, I’m definitely going to see The Ice Harvest (black comedy? Ramis? Cusak? Thornton? Yes please!), which seems to be belly-flopping. Generally, if you want to know what’s going to make money, put out exactly the opposite of what I like and you’ll be in good shape.

Speaking of which, there’s Rent. I’ve never seen the musical, and…well, I guess I should keep quiet, as nothing can ignite a comments firestorm like criticizing popular middlebrow musicals that provide Uplifting, Morally Edifying Thoughts about Important Social Issues, so I’ll just say that 1)although I was going to say after seeing the preview that Chris Columbus was the ideal director for the project, that’s not strictly accurate–given the redeeming social value, this seems more like a Schumacher gig, and 2)particularly since I once was exposed to the score on CD, I’m entirely persuaded by Carina Chocano (“”Rent” is commodified faux bohemia on a platter, eliciting the same kind of numbing soul-sadness as children’s beauty pageants, tiny dogs in expensive boots, Mahatma Gandhi in Apple ads…How is anyone supposed to get behind a guy whose “films” are just home movies of the homeless and his soon-to-be homeless friends?…Or behind a blocked songwriter who spends an entire year agonizing over a song that turns out to be a bunch of moldy cliches set to power chords?”). But I’m willing to say nothing further on the subject if its partisans will stop claiming that the score has anything to do with “rock” in anything other than the way that Good Charlotte has something to do with punk…

What do you mean "Special Provenance: Christianity and the American Republic" doesn’t fill my social science requirement?

Urgh. Fortunately, I missed this.

The suit, scheduled for a hearing on Dec. 12 in Federal District Court in Los Angeles, says many of Calvary’s best students are at a disadvantage when they apply to the university because admissions officials have refused to certify several of the school’s courses on literature, history, social studies and science that use curriculums and textbooks with a Christian viewpoint.

The lawyer for the school, Robert Tyler, said reviewing and approving the course content was an intrusion into private education that amounted to government censorship. “They are trying to secularize private Christian schools,” Mr. Tyler said. “They have taken God out of public schools. Now they want to do it at Christian schools.”

[...]

A lawyer for the Association of Christian Schools International, Wendell Bird, said the Calvary concerns surfaced two years ago when the admissions board scrutinized more closely courses that emphasized Christianity. In the last year, the board has rejected courses like Christianity’s Influence in American History, Special Provenance: Christianity and the American Republic, Christianity and Morality in American Literature and a biology course using textbooks from the Bob Jones University Press and A Beka Book, conservative Christian publishers.

The suggestion that refusing to recognize as legitimate quasi-courses built around Christianity constitutes unfair discrimination is rather new to me. As far as I’m concerned, Christians should feel free to educate their children in any manner they see fit, and if their courses fail to measure up to collegiate standards, then too bad. This is what happens when you decide to wage war on secular knowledge and general education standards. The price of demanding absolute ideological conformity from your kids is idiot children.

I’m certainly not looking forward to that first student who asks why I haven’t included any texts on the special place of the American Republic in God’s plan in my American Foreign Policy class. Since I predominantly teach graduate and professional students, hopefully it will be quite a while.

Via Jaundice James.

Friday Cat Blogging… Bud

Token Thanksgiving Blogging

Greetings from bucolic central Connecticuit, as I luxuriate in the afterglow of the kind of delicious down-home cooking and family togetherness that a New York bachelor is so rarely able to savor. Alas, such a day leaves one with little to blog about, so enjoy this satire of 76BucsMedia (TM) from TBogg and be infuriated by Sam Alito’s proud membership in an orgainization dedicated to keeping Princeton male, white, and larded with the idiot sons of alumni instead. Happy Thanksgiving to the L,G&M community!

New Look

We have a new look. If you notice any serious problems (causes seizures, can’t read the font, won’t load up or looks really weird on a particular browser), please advise in comments.

Aesthetic comments are also welcome.

UPDATE: And thanks very much to Shakes’ Sis for the nifty new logo!

I Hated Me Some of That Movie

Amanda, by IDing my top choice, reminds me that I’m never one to turn down a pointless list, so I might as well get to it. My one condition, which seems implicit, is that the movie have some reputation for quality; otherwise, how are you going to piss people off? Generally, to hate a movie it has to be more than inept. So, a few movies I’ve always hated:

Natural Born Killers Saw it at the opening night of the Monteal Film festival, leading to an intense public argument with friends who considered it a masterpiece. Exemplified what it’s allegedly satirizing. But will be very instructive for those of you who were unaware that tabloids cover the news somewhat differently than the National Journal.

Dances With Wolves I can’t top Pauline Kael: “This film was made by a bland megalomaniac. They should have called him ‘plays with camera.’”

Pretty Woman I admit, this movie is so creepily misogynist it brings out the left-Medvedite even in me. But having said that, from D.H. Lawrence to the Rolling Stones to Phillip Roth to Spike Lee I’ve admired the work of countless artists who have serious issues with women; aesthetic quality makes up for a lot. Needless to say, that’s not an issue here. (Honorable mention: True Lies. Worse than the grossness of the sexism is that is stops the movie dead for a significant period of time to engage in it.)

Dead Poet’s Society Prettily made, and taps into a particular teenage solipsism so ruthlessly, that many seem not to notice that it’s conceived and written on the level of an after-school special, particularly with respect to its one-dimensional morality play; the evil parents and teachers anticipate Sean Hannity’s books about liberals.

Before Sunrise Perhaps not the worst movie I’ve ever seen, but certainly way, way up there on the pretention-to-achievement ratio. Boring as church, too.

Absolute Power There are some people who consider Clint Eastwood the country’s pre-eminent filmmaker. I would like to think that they haven’t seen this.

The Rock There seems to be some impression that Michael Bay is unfairly picked on, because he makes good popcorn movies. But the thing is, he doesn’t. The action sequences are completely inept (and as pretentious as any art-house wanker), edited to draw attention to the technique while not giving you any sense of where people are or what’s happening. Plus, this movie was the one millionth to feature an interminable car chase through the streets of San Fransisco; I expected to see Walter Matthau behind the wheel.

Batman Forever The movie that turned me into the kind of person satirized in The Squid and the Whale; after being dragged to it has become almost impossible to convince me to see “event movie” Hollywood product absent some promise of cash or sexual favors. Like paying 10 bucks to watch a 2-hour McDonald’s commercial. Runner up: Independence Day.

Mallrats/Chasing Amy/Dogma Please don’t make me choose among Kevin Smith movies. Dogma is the most pretentious and dull, while Chasing Amy and Mallrats are where to go for arch misogyny, and also feature Mr. Smith’s exceptionally annoying and untalented significant other.

The Sound of Music That ain’t music; it’s the sound of me puking. Runner-up: West Side Story.

On the other hand, since it shows up on virtually everybody’s list I’m contrarian enough to note that I kinda like The English Patient. Haven’t seen The Talented Mr. Ripley.

…in comments, Matt asks about the source of Bay revisionism. The ur-text is this Slate article, which hauls out every bad argument I’ve ever heard on the subjetct. (Particularly specious is his point that “[i]n fact, patching a bunch of quick cuts together is a massive undertaking in the editing room.” So it is. And then, making a good-looking commercial requires a lot of technical skill too. So what?) Note too that The Island scores a 50 at Metacritic and The Rock a 59, (Ebert is a fan of both, calling the latter “first-rate”) –pretty generous for genre pictures of no aesthetic distinction (scroll down the list on the left and you’ll note that these are certainly not films the critics generally hated.) And note that Pearl Harbor–which in my experience even Bay’s apologists won’t defend–got a fairly large number of respectful notices from major critics, with outright pans a minority. Critics have generally treated him far more generously than he deserved, and his movies are hardly the cultural touchstones that, say, Lucas’ are.

…I don’t know how I could have forgotten Braveheart.