Sportsman criticizes, challenges contribution

Sportsman criticizes, challenges contribution

Now, this is interesting.

The opposition to the concept that the Federal government ought to transfer the public lands to the states is really gaining opposition, as well it should.  And, I should note, not only in the West, it's gaining attention in the east as well.

Anyhow, recently the Natrona County Commissioners gave $1,000 of tax money (they have no other kind) to the American Lands Council, a Utah based group backing this concept. That squarely places the Commission behind this ill begotten idea, and with public money too.  A local sportsmen was reported taking them to task, and apparently effectively, on that.

One thing to note here is that the Wyoming Constitution expressly disavows any claims to Federal land, and its an open question if Wyoming could really accept any legally, should the offer be forthcoming.  Forever disavowing, as we purported to do, is forever disavowing.  In keeping with that, and in recognition of the growing opposition, the Legislature, which was looking at funding a bill to study taking the land instead changed it into one to study simply managing it. Even that has been sufficiently poorly thought of that at least one of the legislators backing that idea, from my district, didn't note it in his recent mail to his constituents. We will remember it, however, as I'm sure he's probably reluctantly aware.

Several months ago this same body was presented by a resolution, by one of the members who voted to spend the $1,000 in this fashion, seeking to instruct the County Clerk not to issue same gender marriage licenses to applicants after the Federal Court here found Wyoming's statute defining marriage the way its been defined forever unconstitutional.  This post doesn't seek to discuss that topic in any fashion, I'm merely noting it (a post discussing the United States Supreme Court's action will appear here tomorrow, about this time).  That measure failed as the other commissioners noted that they couldn't instruct the Clerk to act against the Federal law.

So why can the commission spend money to study something that may run contrary to the Wyoming Constitution?

Lex Anteinternet: Wyoming Adopts the Uniform Bar Exam, and why that'...

Back when I posted this item:

Lex Anteinternet: Wyoming Adopts the Uniform Bar Exam, and why that'...:     Wyoming Supreme Court in  Cheyenne. Students of legal minutia know that the phrase "to pass the bar", or "to be ca...

I noted a widely held concern that the adoption of the UBE would be detrimental to the practice of law in Wyoming in a number of ways.  So far, at least one of the concerns, the increased exportation of the legal practice in this state to big out of state cities, accompanied by a decrease in practitioners who actually know Wyoming's law, has been coming true.  Now, I work with a lot of really good out of state counsel, and this isn't a universal slam.  Certainly quite a few of those lawyers are really good lawyers, but there a lot of lawyers residing in Wyoming who are equally good.  The concern, however, was well placed and long term, this is not a good trend for Wyoming at all, as all the fine really good local counsel risk being forgotten simply because they aren't in a large city, in spite of their trial records.

Now I've read that New York is adopting the UBE with the expressed purpose of allowing transferability of its licenses.

This may seem irrelevant to Wyoming, but far from it.  I don't know how many New York lawyers there may be, but it wouldn't surprise me if the number exceeds the number of residents that reside in any one of Wyoming's larger cities.

On a plus side, however, this will impact the same out of state bars that are presently poaching in Wyoming. So, now we can expect to see Colorado and Montana firms that have been practicing across state lines complain about the same thing we're experiencing, and they certainly will experience it.  And it won't be good for the practices in their states.

I'm not going to cry about that, but we can shed a tear for one group, the legal consumer.  An irony of the practice is that practitioners in small states are often highly experienced in the courtroom, with far more trial practice than some trial lawyers in big states.  Quite often, a local litigant is better off with a lawyer from their home state, which is becoming less common, and stands to become even less and less the case as we move on.

Nothing every prevented a Colorado lawyer from taking the Wyoming exam, or a New York lawyer taking the Colorado exam.  If they took it, and passed, we knew they were qualified.  With the UBE, we don't know that.

Unsolicted career advice for the student No. 6: Stress and the law, know your mind.

Quite some time ago I wrote a couple of posts that are basically directed at people pondering the law as a career; one being a Caveat Auctor thread and the other on getting a useful prelaw education.  I'm sure that absolutely nobody who is pondering law school reads this blog, as hardly anyone does, but I recalled those when I read the most recent issue of The Wyoming Lawyer.  Then I forgot about it until this week.

 

Enigmatic message on a marble bench on the Byron White Courthouse in Denver Colorado originally penned by Francis Quarles, who also stated "No Cross, No Crown". I've never been too sure what this message actually was intended to counsel, but Quarles did not seem to be an advocate of idleness.  I suppose its supposed to inspire a person to strive on, forsaking rest, but in a life that's not long anyhow, maybe it really should be read to counsel the opposite, as some entire cultures do.*

On Monday last, I had a telephonic hearing with a lawyer I've been working against in a case. A really nice guy, we'd gotten along well in the case, which certainly isn't always the situation with opposing counsel  Some lawyers can be real jerks, but this guy wasn't.  Just prior to the hearing he asked me for a continuance of the schedule.  He'd already asked the other defense counsel in the case the same thing, and he'd agreed to it.  I had my reservations, but I agreed to it too. They both wanted one, and while I didn't need one, there were things I could do with the extra time.  All went well, counsel were friendly, the court cooperative, and everyone parted, it seemed, in good spirits.

Then, that night, that lawyer went home and killed himself.  I didn't see it coming.  I wish I hadn't agreed to the extension. With trial right around the corner, I feel he would have hung on out of loyalty to the client.  Maybe the crisis would have passed.

Back to the magazine.  The Wyoming Lawyer is the monthly magazine that members of the Wyoming State Bar receive. It's nicely done and has pretty good production values, which is more than I can say for a lot of career journals. This month's is mostly about psychological well being.  Then the ABA Journal came out, and it had an article on the same thing, maybe more than one (I didn't keep the journal around long, as it didn't appear to be that interesting of an issue).

I'm not really going to comment on the psychological well being context, but it does raise an interesting point for those pondering entering the law, that being, are you up for it?

That may seem like a silly question, but apparently the statistics are alarming for lawyers.  The depression rate is really high, apparently twice that of the general public, and that manifests itself in all sort of terrible ways, from consuming gallons upon gallons of alcohol, to taking illegal drugs, to dicey behavior.  Indeed, I think I've known lawyers, over time, who fell into all of these vices.  Additionally, apparently, the suicide rate is high for lawyers, although the statistics vary on that.  Dentists may or may not have a high rate as well.  Lawyers come out something like second or third in that grim area.  I've known quite a few dentists, but I've never known one who harmed himself.  I can't say that about lawyers, however.  Definitely not now, sadly.  Indeed, after the tragic event mentioned above occurred, another lawyer told me about a fellow that we know of, who died quite awhile back, who also took his own life.  I didn't know him that well, and I don't think that this was widely known (or if it was, I didn't know it).  And it occurred to me that I know of at least one other instance, which in that case was apparently mixed with the resort to illegal drugs, which no doubt made the situation even worse.  And in further pondering I realized I know if yet another lawyer who fell into some sort of weird situation, in another state, and ended up in an armed standoff with the authorities.  Guess I hadn't really pondered any of this until now, but it occurs.

All of this, or at least most of it, seems to be due to people's inability to deal with stress, although in the recent example I mentioned, the lawyer had suffered a horrible psychological trauma as a young man, and my guess is that is what caused his grim frame of mind, not the law.  Various state bar organizations, including our state bar, have set up programs to deal with lawyers falling into the vices noted above, and attempt to help their members, but I wonder how much of this really can be proactively dealt with.

One reason that I doubt it is that lawyers like to repeat the propaganda that our adversarial system is the best in the world.  I think there's real reasons to doubt that, and the less adversarial systems of France, Germany, Spain, Portugal, Austria, Norway, Finland, Sweden, Denmark, Holland, Switzerland, and so on, are at least as good as ours.  At any rate, a system which encourages adversarial conduct is going to be stressful in and of itself.  No doubt about it.  Beyond that, a legal education system that has flooded the market with young lawyers is also going to whack them upside the head with stress.  Most traditional legal education systems tended to weed a lot of people out, and the American system itself did at one time, but this is no longer so much the case. The schools produce the graduates and state bars are moving towards systems that let most of them in.

All that means you have a lot of people who may have entered for one reason or another but now find themselves fighting for work and fighting for a living. That sounds pretty stressful.  This would, however, seemingly be uniquely the case in litigation work, which is fighting.  I wouldn't think transactional work, for example, should be as stressful.

Having said that, one other added element of that, I suspect, is that at the end of the day, the law is about solving problems.  And that means people transfer their problems to the lawyer.  It's easy to think of lawyers as guys with expensive suits engaging in witty banter all day long, but in reality for almost every single lawyer the day is filled with attempting to solve other people's problems.  In litigation, of course, that means advancing a point that they desire, one way or another, which may be all the more stressful as the solution may not really be tailor made for their actual problem, whatever that is.

Recently I ran a series of letter snippets here between my grandmother and grandfather, on my mother's side, all of which related to either World War One or riding horses.  I didn't, by any means, put up all those letters.  But I know, from family stories and what not, how things were and went.  My grandmother, at the time she wrote those letters, was 26 years old and hoping to get married to my grandfather, who was struggling to get a start in business.  They did get married, but about five years later, when he'd returned home to Montreal.  I note that, as if you read the letters in their entirety, you can see that he was frequently ill in his 20s and obviously very stressed out. The family well knew that.  At the time those letters were written he'd already received a discharge from Canadian service due to ill health, which was mostly due to a very nervous disposition, and he'd struggle with that his entire life.  Indeed, he ultimately turned to drinking himself, until my grandmother told him to knock it off, and he did, simply quitting.

My point here is not to condemn him.  By all accounts, his children loved him greatly and the family was a very noted family.  But rather something that was noted at the time, and was noted later, is that he was an extremely intelligent man whose constitution just couldn't endure high stress.  He would probably have been better off as an academic or something. But, coming from a family of very high achievers, and being uniquely afflicted in this sense, nobody really understood that and he followed along the well trodden family path of business.  Ultimately, it did work out okay, but it was hard on him.

I wonder how many other people find themselves in situations like that.  From groups of high achievers, and uniquely oppressed by such a condition.  Now, there's all sorts of things that can be prescribed for such people, although I'm personally bothered by the degree to which Americans resort to pharmaceuticals for everything now days.  I wonder if a person should take something like this into account. 

Over the past year or so I've run across lawyers who were drinking too heavily, one who was engaged in an improper relationship with a female employee which resulted in the end of his marriage, one who seems to be on the constant edge of a nervous breakdown (assuming that's still regarded as a real condition), one who writes nasty letters but who won't answer his phone, one who quit law work, went into policing, and then had an improper relationship with another policeman while at work, and now one who killed himself.  I can't say that all of these are reactions to stress, but all but the last one are so common in this line of work, I wonder.

Some lines of work require psychological testing before entering them, I'm told.  Law enforcement now does, I guess.  I know that American submariners and missile crewmen do.  I kind of wonder if law schools ought to at least require some sort of testing to inform the student of if their makeup is suitable for the law, before they invest in their education.  But then law schools generally aren't very good about informing students about the practice of law in general, and have low interest in discouraging people from entering law school.

Be that as it may, a person whose prone to bad reactions to stress maybe ought to think twice about some aspects of the law, assuming that they know that they have that character trait, which I suspect few people do, until their really under stress.

___________________________________________________________________________________

 Postscript

On this topic, because I think its significant, and because  I recently saw an example of how this is true that brings it to mind, I thought I'd amplify something that's mentioned above, but which wasn't expanded on much when I noted it.  That's the element of responsibility in the law.

I hear all the time, from people contemplating a legal career, that "they like to argue", as if that somehow qualified anyone to be anything.  Make no mistake, it isn't whether you like to argue or not that makes you qualified to be a lawyer, or makes the law an ideal career for you. If you truly like to argue, that may just make you a jerk.

The bigger question is whether you like to take on the responsibilities of others.

That's the key aspect of a legal career and legal personality.  Everything else is ancillary.

Most people don't, quite frankly, like to take on the hopes, dreams and burdens of others, and carry the full weight of them.  Some do, but most do not. But that's what an awful lot of lawyers do, and that's what all lawyers do to some extent.

That, for litigators, this is done in an adversarial setting doesn't change that.  A lawyer arguing in court his hoping to win something for somebody else, and that person is depending on them.

That's the key thing, I think, that causes stress in the law.  A lot of people who have entered the law because they were smart, analytical, etc., may not have realized that what they were signing up for was to be completely devoted to the causes and hopes of other people. And that can wear on a person.  It wears on some more than others.

And it's something that people don't understand at all.  For that reason, there's little relief from it at any stage.  Family, which should be the primary refuge from this, provides one of the main areas where it doesn't occur.  The lawyer, being a person who solves problems for others all day, is expected to keep on doing that at night.  Men and women who travel weary hours for others are asked to turn around and do it for those at home. All that is reasonable enough.

But that gets to some very much, and that's something that a person entering this field should be aware of.

The paradox of it is that if a person is motivated by a "desire to help others", in my view, this is also the wrong career. That suits a person for social work, or perhaps for the seminary, but not really for the law.  That's a greater type of calling, and this is a more narrow one. The work of the lawyer is more at the pick and shovel end of things, but none the less the work is often desperate and important, and a lot of weight if carried on that person's shoulders.  Just because a person liked to compete in high school or college debate doesn't mean that they want to take on the desperate causes of other people. That's something that at least all lawyers do a little, and some lawyers do a lot of, and that's something to consider.

__________________________________________________________________________________

*On the other side of the building are the words "Alternate rest and labor long endure."

Senate File 108 and the addressing of the unnecessary.

While I'm sure the Legislature gets more heat than it deserves, it is occasionally really hard not to cringe at certain legislative acts.  

Indeed, it's hard not to cringe at certain legislative commentary.  This year, for example, the local paper has been really upset by a couple of bills that seek to carve out a freedom of conscience defense for people who feel that they cannot perform services at same gender weddings, in spite of that having already been proven to be an issue in other states, but there's been no commentary in the paper, as far as I'm aware (and due to business travel, I may have missed it) seeking to restrict the Game and Fish from doing what it already cannot do.  

That bill, Senate File 108, seeks to prevent Game Wardens from entering private lands without the permission of the landowners.  In other words, it seeks to restrict what already can't be done.  The draft bill states.

What motivates this is unclear, but a law enforcement officer already can't just walk onto private lands, so this bill is wholly unnecessary.   Why somebody was worked up enough about this to write a bill preventing what's already prevented is not clear to me, but by taking this step, the law actually would preclude a Game Warden from entering any private land, such as Walmart for example, or the local sporting goods store. Clearly, that isn't what was meant, but the law in seeking to address a situation that doesn't need to be addressed, by extension could be acting to create a legal oddity that's a bit absurd.

Hopefully this bill will fail.

The return of a perennial bad idea, the transfer of Federal lands to the state.

Every few years Wyoming and the other western states get the idea that the Federal government ought to hand over the Federal domain to the states.  The states don't propose to buy, please note, but just get it.

For those who aren't aware, starting really in the 1860s with the Homestead Act the Federal government started taking a different approach to vast tracks of land it acquired by the surrender, acquisition or simply the theft, of lands held by aboriginal title. Aboriginal title was that title held by the native inhabitants, i.e., the Indians.  The Federal government recognized that title, as the Crown had also, but regarded it as a subservient, less perfect, form of title.  Basically, it was inferior as people who lived a wild, aboriginal life, weren't regarded as civilized, and therefore they couldn't have a civilized title.   The concept sort of was that they didn't really know what they had or how they had it, but they did have something.

From very early in the country's history it was the law that only the Federal government, heir to the rights of the Crown, could dispose of aboriginal title.  States and territories couldn't do it.  Up until the Homestead Act, the Federal government generally handed over most of the land it had to the new state upon statehood, but not all of it.  The land it kept were "reservations", and not just of the "Indian Reservation" type.  Washington D. C., which it acquired by donation, is one such Federal Reservation, or was, in spite of its ceaseless nonsensical whining about wanting to become the only city state in the country, thereby elevating a bad idea to statehood level.

Starting with the Homestead Act, however, the Federal government decided that it would keep much of the Federal domain and allow farmers to acquire it directly from the Federal government. This was done in order to encourage the settlement of lands otherwise regarded by most people as wastelands.  The thesis was that by making the land free, or darned near free, people would be encouraged to give farming or livestock raising on it a go.  The Homestead Act was followed by the Mining Law of 1872, which did the same for mining, with mining given a preferential place over everything else.

This was the system for most of the West until the Taylor Grazing Act when Congress recognized that the Dust Bowl conditions in the West then in play, combined with darned near full homesteading, was wrecking everything.  So, it operated to prevent further homesteading entries and to lease the land to agricultural interests.  A law that provided for leasing of oil and gas rights was already in existence. Finally, in the 1980s (I believe) the Mining Law of 1872 was altered to prevent further land patenting.

This system has worked really well. The  Federal government has been a really good steward of the land and the fact that it belongs to all of us has meant that its been open to agriculture, hunting, fishing, and recreation.

So why would the state's have a problem with that?

Well, they do.  Partly that's because the state's see the Federal domain as a source of income, and partially its because local interests always naively imagine the land ending up in their hands.  People who depend on the Federal domain often have a problem sharing it, and they somehow imagine that if it went to the state, it'd go to them, and they'd own it.

And that's why this is a hideously bad idea.

In reality, allowing Wyoming to own the Federal domain would mean, sooner or later, that it would sell it into private hands.  Those backing the bill in the legislature to support this concept deny that, but that is what would happen.  Local pressure from local interest would scream and cry for this until hit happened. And then they'd be stunned when the land all went to big monied interest elsewhere.

For those who support agriculture, mineral extraction and recreation in this state, which is darned near everyone who lives here, there's no better way to mess that up than to support transferring the Federal domain to Wyoming.  Wyoming is always selling little bits and pieces of what it does own, and sooner or later, it'd do that with all the land it owns.  And at that point, locals would basically own nothing, and be able to go nowhere.

This idea is terrible.  The legislature will almost surely pass it.  Let's hope that Congress doesn't support it.  If it were ever to get through, however, this would be the time.  If that's the case, when the day comes when you can't go anywhere on what the Federal government once owned, remember the names of those who proposed this idea and ask them what they were thinking, unless of course you support the concept, and then you can ask yourself.

Postscript

This bill has now been amended such that the proposal is no longer to study the transfer of the lands, but rather transfer the management of them.

That's certainly a much more reasonable, sort of, prospective, but this too is a poor idea.  After all, if the Federal government is paying for the management of the lands, why opt to take on the expense and burden of that task? The answer would no doubt be that there would be more local control, which is true, and which is why the state has chosen to administer such things that it can, such as the Occupational Health and Safety regulations.  Nonetheless, taking on this burden here, which is well done by the Federal government, seem to be a rather poor idea.

Would the ABA please gete over its "Big Law" Obsession? And over itself too?

This is a post I started, actually, some years ago, but I never finished it for a variety of reasons.  Nonetheless, as I am an ABA member, and as I get disgusted with the ABA from time to time, I haven't "trashed" the old draft, and I'm finally completing it.

Anyhow, this, no doubt, is something that only matters to lawyers, and quite frankly only to a tiny number of lawyers at that, but the ABA needs to get over its obsession with "Big Law." At the same time, "Big Law" needs to get over itself, and so does the ABA.

Now, no doubt many non lawyers, upon hearing that term, would wonder what "Big Law" even is.

Well, Big Law is a term that legal commentators, within the legal community, have tagged on Super Sized East Coast law firms.  Like many Super Sized East Coast things, they're irrelevant to people in the country otherwise, but those who are located there are seemingly so fascinated with them, that they can't grasp the irrelevance.  Think of it like New York City. . . a vast metropolis that has passed its importance long ago, but doesn't realize it. And think of the ABA, in these regards, as a The New York Times, a once great public organ which is now a local newspaper, but which still believes that it speaks to the world, rather than wrap fish in Queens.

The ABA is constantly obsessed with what's going on in Big Law.  Members of the ABA can subscribe to some email lists which supposedly will inform you in on this or that, and one of the things you are going to see constant commentary on is Big Law.  Some big partnership back east will be laying people off, or the starting salaries of Big Law associates will be lower this year than last.

Well, so what?  It doesn't matter to most lawyer, or most clients.  Indeed, it doesn't matter to most "big time" lawyers.

But the commentary on it is so constant that other legal venues have picked it up. The legal Blawgs are full of "Big Law."

A dirty little secret of all of this is that a lot of Big Law commentary isn't about Big Law at all, but just regular old firms.  If all the people who claim Big Law angst really worked for law firms employing the same number of people who lived in the Ottoman Empire, there would be no lawyers left employed by anyone else.  I suspect that people who Blawg have, in their minds, converted their former occupation in a mid sized Mid Western firm to Big Law.

And maybe they should have, because much of the commentary and angst expressed about Big Law is really just stuff about general law.  Big Law seems mostly distinguished from regular old law by its size, salary, locations, and probably the deluded corporate desire of big corporations to make sure that they they hire big.

For the most part, Big Law doesn't matter.  Even the really big firms in big cities that handle lots and lots of important stuff in most places seemingly don't qualify as Big Law. So lawyers in a the Denver firm of Big, Huge, Giant and Titanic, which might have an office up in Casper and down in Albuquerque, don't count.  And certainly that century old firm downtown employing ten or twenty lawyers doesn't count either.

Frankly, except to the ABA, for most of us, Big Law doesn't count.  I don't care what some white shoe firm in New York does.  It doesn't matter to me.  Shoot, chances are good that I'll have a higher career total number of trials than most of them do, if I don't already.  I'll never make the money their lawyers do, but I've never paid New York rent nor have I had to live in a place so undesirable as New York.  I win.

But the ABA looses.  It should just ignore the Big Law firms this year and focus on what most real lawyers do.

And while the ABA is at it, it can dump social activism for the year.  I don't care, and nobody else does, on what the shining lights at the ABA think about gun control, or any such thing. Frankly, just because we're lawyers doesn't make us experts on social issues of any kind, and lawyers have been on both sides of every issue that ever was.  The fact that the ABA feels itself compelled to bother with issues is one of the reasons that its becoming increasingly irrelevant to real lawyers.

Indeed, if the ABA wants to make itself relevant, it ought to go back to its century old roots and focus on practice standards.  It could do that by working towards making legal education more rigorous and less frequent.  As shocking as it may sound, it would be doing the law a favor if it advocated for fewer people to go to, and get through, law school. And it should do something about the fact that in an increasing number of American states bar applicants aren't tested on their state's own laws.  If they want to be really bold, they could argue that judges should never be elected to office and ought to go off the bench when they hit 70, even if their Federal judges. I don't see the ABA making any of those arguments soon, however.

At the same time, we'll we're at it, perhaps everyone can just get over the Ivy League law schools.  Yawn. 

Protection is sometimes not needed until it is. A bill to protect the clergy

Yesterday I commented on one of  Wyoming's, indeed the entire West's, perennial bad ideas, that being that the Federal government should give (not sell) its land holdings in the West to the state's where they're located.  My suspicion is that this makes us look foolish in the extreme in the East, where the citizenry wishes that they had what we had, and also knows that they are included in the putative landowners whose property we seek to expropriate gratis from the Federal government.

Today, however, I'm commenting on something that goes the other way, that being a bill that's in the legislature which would protect a person from suit who will not preside over a same gender marriage.  The Tribune editorialized in opposition to this bill the other day.

That editorial was extremely telling, really, as it shows the mindset of those who just don't grasp this issue. Starting off with the claim that there are no worries, as the 1st Amendment to the U.S. Constitution protects anyone in that position, it then goes on to express the view that the bill is just sour grapes as a Federal judge forced this on the state, and that same gender unions are good for marriage overall.  So, in one fell swoop the editorial actually states the fears that this bill seeks to address, those being that:  1)  the Federal courts can make something that was never conceived of as being legal the law overnight, and 2) if you don't agree with this change you ought to, so you have no legitimate complaint anyhow.

Beyond that, this is the first inkling of a concern by those who backed this change (as the Tribune did) that its likely be extremely temporary.  The elephant in the room on this issue is that that U.S. Supreme Court hasn't ruled on it yet, but is likely to do so in the next two terms, and when it does, it's probable that the ruling will either uphold prior state laws or the Court will hold that the entire issue doesn't belong in Federal court at all, and remand all of it to the states.  In that case, the local ruling would basically evaporate overnight and it would become a state issue.  Nobody really knows what the Wyoming Supreme Court would do with this issue, but its pretty certain that the legislature would not be in favor of any changes in the reading of the law.

So what about the first point in the editorial. Is the Tribune right?

Well, maybe it is, and maybe it isn't.  We need to also keep in mind that there's a bill also pending in the legislature which would prohibit discrimination based upon a person's orientation.  People everywhere in the US tend to already think that this is the law, and most people aren't in favor of any kind of real discrimination, but that actually isn't the law.  Chances are that it will be, either legislatively our through court action in the foreseeable future.

For most people, that actually won't matter, but there are a collection of people for whom this creates a moral crisis.  And its one that isn't often understood and is unfairly dismissed by those who don't look at it.

To start with, its very clearly a problem for ministers of most monotheistic religions that hold the long established theology of their faiths.  Judaism, Christianity, and Islam all regard the conduct that this surrounds as sinful, and none of them regard marriages between same gender couples as valid.  Now, before somebody seeks to correct me, I do concede of course that there are present examples of individuals in Judaism and Christianity, including their ministers, who hold the opposite view, but they are all reformist in some manner.  That is, in order to take that view, they have to qualify or reinterpret part of what was very long held doctrine.

Now this post isn't intended to be a theology treatise, which I'm not qualified to attempt to do in depth anyhow, but rather to note the next item, which is that Conservative and Orthodox Jewish Rabbis, Muslim mullahs, and ministers in the Catholic, Orthodox and some Protestant denominations hold the view that same gender unions cannot be regarded as marriages and that they cannot perform them.  Indeed, they'd regard preforming them as an immoral act with enormous personal consequences.

Beyond that, members of these various faiths, at least in some cases, also hold the views that cooperating in such unions is itself a species of religious fraud, as it gives evidence that they, as loyal members of their faiths, disagree with the faith.  Frankly, the average person in most faiths seems able to ignore big chunks of it if they're average members, but for those who are serious about their faiths, this can present a very real problem if they're asked to participate in some fashion, which can include everything from simply attending to being asked to provide some sort of service, like photographs or a cake.

Because so many people have very casual views about everything in this area, the fact that this can in fact create a moral crisis is lost to many people.  Indeed, many people are pretty comfortable with a judge ordering a priest or rabbi to do something, as they feel "well, he doesn't have to believe. . but what's the harm. . .".  And a larger group yet is very comfortable with the idea, for example, that a Jewish bakery can be ordered to provide a cake, as to not do so would be "mean", or that a Catholic flower shop can be ordered to provide flowers, as to not do so is hateful.

But if any of those individuals feel otherwise, and they stick to their guns, the full sanction of the law could impact them, as it already has in some states where the law has changed, in so far as laymen are concerned.

And, as touched on earlier, this is already a present problem, at least on a theoretical basis, for those who hold clerk positions.  If a young Muslim woman is working in a county clerk's office and is asked to issue a marriage license, can she get canned if she refuses and it has to go to another clerk?  What if a Greek Orthodox judge decides that he doesn't want to preside over civil unions in his courthouse?  Is that the end for him?

It could be.

The Tribune, which has sued more than once when it feels its Constitutional rights are being trampled upon, feels that the 1st Amendment neatly solves all of this.  The 1st Amendment states:

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

All the 1st Amendment really says, of course, regarding religions is that no U.S. state was to go down the same road that England, Scotland, Norway, Sweden, or Denmark had, and make a certain religion the state religion.  Indeed, of significance to this discussion, in each of those instances the establishment of a state religion came about when the state acted to overthrow the religions establishment of the country and get it to do something it wasn't going to do voluntarily, so in essence the state acted to tell the established church what to do.

The First Amendment has been interpreted, of course, to allow "the free exercise" of any faith, and the Tribune's thought is that as this is the case, everyone is protected. And the Tribune might be 100% correct.  Having said that, the states in fact do already restrict the free exercise of religion  and always have.  While I'm not advocating for a change in this particular aspect of state law (although that's coming about through court action anyhow) one such example is in that marriages are limited to one spouse a piece.  What are sometimes referred to as "fundamentalist Mormons" believe that one man should be able to have multiple wives.  Muslims believe that one man can have up to seven wives, although their faith doesn't mandate that they do so.  Other examples could be found.

It's safe to say, in any event, that sooner or later some priest, rabbi or mullah would get sued for refusing to preside over a same gender union.  And some flower shop, bakery, caterer, or banquet hall would as well.  It'd be inevitable.  Maybe the First Amendment would operate to protect them, it probably would, but to be concerned that it might not, or to feel that added protection might be in order, isn't unreasonable.

The truth of the matter is that Americans have sort of a dual religiosity and the United States is a fairly religious nation.  But part of that is that there's sort of a widely held civil religion that's relativistic and which holds tolerance of everything and being nice to everyone as a primary virtue, without looking at any one topic too deeply.  For the thousands, and maybe millions, who also take the tenants of their faiths seriously, however, there are lines they cannot cross.  For most Americans, up until now, that's mattered little, although again there are tens of thousands and maybe millions who have actually do face trials of one kind or another of this type everyday, where things that they'd reject have crept into civil life over the decades.  But what we've seen recently has come as a court made, in part, revolution and has placed these conflicts squarely in issue.  The early history, indeed over half of our history, was marked by extremely deep religious bigotry  in which certainly Catholicism and Judaism were deeply despised, and even Puritans could find themselves facing the death penalty for passing over a colonial boundary (giving us a rare early example of women being executed in what would become the United States).  Without some protection for those who hold deeply held believes that do not square with civil trends, we face returning, to some degree, to that era in a more minor way, with the enforces of the civil religion oppressing the holders of other religious views.

Now, of course, the bill might not actually be effective.  But some protection is at least worth affording.

LLB, LLM, JD, oh my!

The other day, I was reading the biography of a long practicing lawyer which noted that when he'd graduated from law school (from another state) in the early 1950s, he'd received a LLB degree, which is a Bachelor of Legal Letters, a now extinct degree.  When the US uniformly went to JD's, i.e., Juris Doctorates, his school allowed that holders of LLBs could exchange them for JDs, which he did.  I probably wouldn't have, but that's just me.  Still, that there were other degrees, and now are not, is an interesting fact and it actually says something about the history of the practice of law, and maybe something about where we are today.

Law degrees, as a professional degree, date back to the 11th Century in Europe, which is stunningly early, and they were actually doctorate degrees at the time.  This certainly doesn't mean that every practitioner of the law held one, but such degrees did exist.  Indeed, as sort of an interesting and peculiar aside, you can find quite a few references in the lives of various Saints to their having studied or obtained a law degree. St. Francis de Sales provides such an example (and you can read about him here, in the They Were Lawyers page on this site).

We in the United States, save for Louisiana, use a Common Law system, so we're heirs to the 1292 decree of King Edward I that lawyers actually be trained for their professions, but that didn't mean that they had to be university trained by any means.  Indeed, that gave rise to the "reading the law" system which predominated for most lawyers in the Common Law countries for eons.  However, even as early as the 1700s in both England and the American Colonies there were those advocating for university education for lawyers, with such a significant figure as William Blackstone taking that position.

In both England, and the United States, the first law degrees were bachelor's, not doctorate, degrees, something that set us apart, for good or ill, from continental Europe.  In England, the LLB became the common degree, while the first degree offered in the United States was the Bachelor of Law, which soon became a LLB, but without the training in classical liberal arts that the degree included in England.

J.Ds started to appear around the turn of the previous century, and they reflected the fact that law school had already become a post graduate degree. Therefore, people in the US graduating with LLBs already normally  had one bachelor's degree, and it was felt that medical degrees, such as the MD and DDS degrees were sort of unfairly elevated by title, when all the post graduate degrees of that type were in fact doctorate degrees. And the fact that Germany at that time (but no longer) had a practice that required a doctorate in law influenced American academic thinking.   However, not every school changed, and so it was still the case in the mid 20th Century that there were LLBs, LLMs, and JDs, all of which were basically more of lest the same, even if they bore "bachelors", "masters" and "doctorate" titles respectively.

Meanwhile, in England, things went the other direction and things evolved to where law was a bachelor's level course of study, but one of a more traditional nature mixed with other disciplines.  A more academic degree than that in the US, it's none the less one that a person can simply go to university and major in.  Canada and Australia, on the other hand, have followed the US post graduate model.

JDs became the US norm, indeed absolute, at some point in the late 1950s, as the bodies that concerned themselves with law, such as the ABA, pressed for that to be the universal degree.  While already mentioned, there was a certain pitiful aspect to this in that the profession's bodies felt cheated that physicians had doctorates and lawyers didn't, which is a rather odd concern.  At the same time, the same bodies pressed for the elimination of "reading the law" or admission to the bar by people without JDs, which of course raised their importance.  At some point by the 1970s the old practice of allowing people to simply take the bar had died off, and in most, but not all states, a person is required to have a JD from an ABA approved law school before being admitted to the bar.

Ironically, perhaps, the US JD is the least difficult of any of these degrees to obtain, contrary to what American lawyers imagine.  Indeed, law school has increasingly become a sort of trade school in the United States, but not in the other Common Law nations.  Given the origin of the law as a "profession" in the Common Law, this is truly ironic, and probably not good.  On the other hand, its no surprise that JDs are not as "broad" as English LLBs, as American law school students already have a BA or BS, and therefore (hopefully) obtained that broad education there.  Indeed, looked at that way, American lawyers, by the time they graduate with their professional degrees, probably have a broader education than English lawyers do.

And they'll be a bit older as well, rather obviously, as they're in school longer than their English counterparts.  Indeed, as I've often wondered how well suited any person is to find a career just out of law school, I've wondered how many English lawyers really knew that this was their career aim, accurately, when they started off and then later completed their degrees.  It would seem to be the case that American lawyers, maybe, would have accessed their career goals somewhat more accurately by being older when they entered a post graduate program.

Or maybe not, based upon what little I've read about it, as it shows up in bar journals and legal websites, career questioning is pretty high in both the UK and the US in regards to the law, so perhaps being 22 instead of (presumably) 18 when a person enters law school isn't that big of difference, although it would be hard to see how it wouldn't be.  Or perhaps that says something about a legal education in both countries.  I'm not that familiar with it in other countries, but at least here in the US law schools have been criticized for being divorced from real practice to some degree, and therefore poorly preparing their charges for the practice.  Of course, if they did focus on that more, and they are indeed working on it, they risk become more of a trade school than they already are, which would not seem to be a good thing.

Added into this odd mix the various bodies that so concerned themselves with raising the standards of practice have seemingly passed their prime and their relevance declines.  The ABA still certified law schools, and is still a power, but not like it once was and membership is not nearly as universal as it once was.  A quick look at the organization is telling, as its clearly a left coast liberal entity that many lawyers do not really subscribe to in terms of views and its taken up bothering itself with social concerns that lawyers are really no more qualified to spout off about than anyone else.  JDs, that doctorate degree, became increasingly easy to get over the years and more lawyers were produced in recent years than there was work for.  Bar exams, which didn't even exist in some state's mid 20th Century, are now universal but they've gone from featuring a nationwide Multistate exam combined with a state exam to, in at least ten or so states, including mine, to a "Universal Bar Exam" which removed examination on the state's own law completely.  One state, Iowa, has returned to no bar exam for local law school graduates.

Not that much of this matters to the average person.  In the end, people in the UK, US, Australia, Canada, etc., all have a common law system that works pretty much in the same way, and in all those locations practitioners schooled in that system have little concept of changing it to any other, which of course would seemingly raise the question of whether competing systems, and there are others, deliver justice more, or less, efficiently.  Or maybe it does matter, or at least in the US perhaps it matters.  With a general perception that the quality of a college education isn't what it once was, which may or may not be accurate, and law schools that are perceived as not being as rigorous as they once were, combined with a trend towards bar admission without even a state test being administered, the "doctorate" and "professional" quality claimed by lawyers will start to mean less than it currently does, and already doesn't mean what it once did.

Random Snippets: Western law schools

The University of Wyoming's College of Law was founded in 1920 with classes being held in the library.

Denver University's College of Law was founded in 1892.

Today In Wyoming's History: December 29 Updated

Today In Wyoming's History: December 29:

2014  The Special Master issues his report on Tongue River allocations in Montana v. Wyoming. Wyoming newspapers report this as a victory for Wyoming, but Montana papers report that both states won some points in the decision, which now goes to the Supreme Court for approval or rejection.

Everything old could be new again: Letters of Marque and Reprisal

In the old days, when a nation went to war, it issued piracy licenses.  I.e., letters of marque and reprisal.

Letters of marque and reprisal were just that.  In times of declared belligerency, nations licensed individuals to outfit their own vessel for the purpose of raiding enemy shipping, by which we mean commercial shipping.  It was legal, and it was lucrative, as the raiders claimed the enemy ship and its content as a prize and divided it up amongst themselves.  Indeed, the practice was so lucrative that navies occasionally had trouble recruiting men to their national navies during wartime, as signing up for a privateer was a better economic bet.

Letters of marque and reprisal are provided for in the same section of the Constitution; that the never used and nearly forgotten section providing for Declarations of War, are.  Specifically, it states that Congress has the power to:

To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;

Congress is too chicken to declare war anymore, and hasn't since 1941.  The Korean War, the Vietnam War, both Gulf Wars, etc., were all without declaration.  This has been addressed here a couple of times before, and clearly some of the non declared wars shouldn't have been declared, and we've always experienced that to some degree.  So, while I suppose its only musing, I left wondering why Congress can't issue letters of marque and reprisal in situations of near war.

For example, I wonder what issuing them following 9/11 would have been like?  Piracy licenses to that new type of pirate, the Cyber Pirate, might have cleaned out Al Qaeda's bank account in about a week.  And now that we've been raided by pirates ourselves, in the form of oversensitive North Korean Clown College pirates, and as we've seen what private hackers can do to a country like North Korea's internet just for entertainment, I have to wonder what they'd do if they feared that Congress might debate letters of marque and reprisal?

Today In Wyoming's History: December 18 Updated.

Today In Wyoming's History: December 18:

2014.  Nebraska and Oklahoma filed a petition with the United States Supreme Court seeking to have leave to sue Colorado on a Constitutional basis.regarding Colorado's state legalization of marijuana.  The basis of their argument is that Colorado's action violates the United States Constitution by ignoring the supremacy nature of Federal provisions banning marijuana.

While an interesting argument, my guess is that this will fail, as the Colorado action, while flying in the face of Federal law, does exist in an atmosphere in which the Federal government has ceased enforcing the law itself.

Lex Anteinternet: Contempt of Court

For the second time in a little over a  year, we've been treated, or perhaps mistreated, to examples of large sections of the American population rejecting the rule of law, for the concept of mob rule.  This is, to say the least, disturbing in the extreme.I commented on the last instance in July 2013 here, in this post, Lex Anteinternet: Contempt of Court: As I noted there, I don't follow criminal trials as a rule, but the case of Florida v. Zimmerman proved impossible not to follow.  In that case, the jury found the accused, Zimmerman, innocent by way of an application of the traditional doctrines of self defense, but which resulted in widespread public outcry, including a comment by President Obama.

Now the nation, and indeed the world, has been witness to the degree to which quite a few Americans resort to the old concept of lynching crowds over the jury system, to which we supposedly all claim happy allegiance.  Americans are fond of saying that we have the best justice system in the world, but we're pretty quick any more to demonstrate that we'd really rather return to the old, old days of trial by local majority or even economic result.  To anyone who actually believes in any sort of justice system, this should be disturbing in the extreme.

This arises, of course, in the context of Ferguson Missouri man Michael Brown being shot by Ferguson police officer Darren Wilson.  

Worth noting, the way that this has been framed in the public mind seems to have been in error from the very onset.  Brown, in the public mind, is often portrayed as a child, but he was an adult man of 18 years old. For those who think that's a child, we should keep in mind that at 18 you are old enough to vote, old enough to serve in the armed forces, old enough to be treated as an adult in every fashion except for the purchase of a handgun, and of the age where if you are charged with a crime, you are charged as an adult.  Officer Wilson wasn't really much older, only being 28 years old at the time, a difference which seems large when  you are 28, but not so much later.

Nobody will ever really know what happened that night, but what seems to be the case by way of credible evidence is that Wilson stopped Brown, who had just stolen cigars from a convenience store.  That Brown wasn't a saint is really glossed over in this, but by the same token the theft of cigars is a misdemeanor and not of the crime which, under the common law of old, entitled an officer to use deadly force by its simple existence.  Felonies, for what its worth, did fit into that classification at one time.  But theft is theft and to be detained by an officer following a theft is always something of concern to the thief, which at that point, Brown was.

This resulted in some sort of a scuffle.  We'll never know what happened, but by the end of it, Wilson had drown his sidearm, after having been hit at least several times by Brown, and shot him.  Wilson fired something like 12 rounds from his sidearm, hitting Brown six times. 

Now, generally a person would focus on the number of rounds expended, which seems high, but quite frankly its been the police norm for several decades.  At one time police officers carried revolvers of small caliber, and generally they operated in a world in which simply hitting a suspect usually meant he'd give up. The exception for decades was the FBI, which operated in a world in which suspects were usually extremely dangerous and would fight it out, sometimes with some surprisingly heavy weapons.  In turn, FBI agents usually carried .45 ACP handguns, a heavy handgun that did big damage if you hit a person, anywhere.

Staring in the 1970s, however, police forces switched to semi automatic handguns which was coincident with the rise of drug use. Drug use made a lot of suspects really dangerous, as they'd lost all reason as a result, and so they'd keep on keeping on.  Most police handguns are anemic, however, and so the training that has come up over the years, starting first with the training in New York City, has been to have officers keep on firing until a suspect goes down.  Frankly, in my view, most forces might be better off with a bigger handgun that required a single shot, but that's not what most departments use, save for some specialist within large departments, and in some sheriff's offices.

So, was the use of force excessive?  Well, we weren't there.  So the matter was sent to a grand jury.  The answer isn't clear from these facts alone.  We can't say its excessive based on number of rounds fired alone, and we can't say that Wilson didn't act excessively either. After all, Brown is dead.

Here's where the disturbing trend comes in.

Grand juries deliberate in secret.  Not all states use them, but Missouri must.  They can take in all kinds of evidence, nearly without restraint. At the end, they have the call on whether to charge or not.

Here, they decided not to.

The mob isn't accepting it. But the mob didn't hear the evidence. And the protest has spread around the nation, and there are calls to charge Officer Wilson with Civil Rights violations.

This is no different than the lynch mob of old.  The mob has decided what is right and wrong and it wants its decision carried out. But, should we heed the mob, we have no justice system.  A justice system which cannot render an unpopular decision isn't a justice system, it's a farce.  People protesting this decision are arguing for a type of jurisprudence found in Fascism, or Communism.  They should be ashamed.

This would be different if we had any reason to believe that the grand jury ignored the law.  But on the contrary, it appears they did not.  They had a difficult decision to make but they appear to have made it properly.  Nobody who wasn't in the grand jury really knows what the evidence in this matter even is.

This entire trend has become increasingly common in the United States in recent years.  We already have seen people charged with crimes that are really economic class crimes, or even simply political crimes, as the population feels good about them.  Those trends are hugely disturbing as they suggest that success in business or in politics risks being criminal.  Now we're seeing the old, old concept of revenge revived as a basis for judicial action, and it should never be.  People who feel strongly that we need a just system of justice should be disturbed.

Americans Hate the Bill of Rights

Americans claim to love the Constitution.  Politicians, judges and public office holders swear an oath to "protect and defend it", and loudly declare their great admiration of it and its drafters.

Well. . . .baloney.  Americans absolutely despise the Constitution and particularly the Bill of Rights.  They loath it.  Sound too strong?  Well, consider each article of the Bill of Rights and what you really hear.

The Bill of Rights are the first ten amendments to the Constitution.  They came about because, after having given up on the Articles of Confederation, Congress grew worried that it had created a system in which the new Federal government would be so dominant that it could override the primacy of the states.  To address that concern, therefore, they came back and added the first ten amendments.  At first, they only restricted what the Federal government could do, not the states at all, but through a doctrine entitled "incorporation", which arises via the 14th Amendment, the first ten amendments have slowly come to be regarded as restricting both the Federal government and the state governments.  Early on, Congress just couldn't imagine a state abusing its citizens, as democracy was regarded as so direct at the time, but time proved the opposite, hence the doctrine of incorporation, which arose both due to amendment and interpretation of the Constitution.

Here's the Bill of Rights:

Congress of the United States
begun and held at the City of New-York, on Wednesday the fourth of March, one thousand seven hundred and eighty nine.
THE Conventions of a number of the States, having at the time of their adopting the Constitution, expressed a desire, in order to prevent misconstruction or abuse of its powers, that further declaratory and restrictive clauses should be added: And as extending the ground of public confidence in the Government, will best ensure the beneficent ends of its institution.
RESOLVED by the Senate and House of Representatives of the United States of America, in Congress assembled, two thirds of both Houses concurring, that the following Articles be proposed to the Legislatures of the several States, as amendments to the Constitution of the United States, all, or any of which Articles, when ratified by three fourths of the said Legislatures, to be valid to all intents and purposes, as part of the said Constitution; viz.
ARTICLES in addition to, and Amendment of the Constitution of the United States of America, proposed by Congress, and ratified by the Legislatures of the several States, pursuant to the fifth Article of the original Constitution.

 Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

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Amendment II

A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

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Amendment III

No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

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Amendment IV

The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

---

Amendment V

No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

---

Amendment VI

In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

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Amendment VII

In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

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Amendment VIII

Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

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Amendment IX

The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

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Amendment X

The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

Americans really dislike these provisions.  Each and every one of them, in spite of what they think they believe.  Politicians, who have sworn an oath to uphold them, will rail against some of them on occasion.  Let's take a look at each one.

Amendment I
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The first amendment was designed, in part, to prohibit the establishment of a Church of the United States, the way that  England had the Church of England. This was recently discussed on this comment at the Ramblings of a Teacher blog, including some commentary by yours truly, so I'll just refer the history, etc., of that out to there.  But, basically, being aware of the titanic series of struggles that had resulted from Henry VIII's declaration that he was head of the Church in England, followed by years of struggle between those who conceived of that as a mere separation and nothing else, and those who were true Protestants, and those who sought a reversal of Henry's VIII's actions  in separating London from Rome, and the suppression of competing Protestant groups by the whoever was in power, and the suppression of Catholics by everyone, the new American nation wanted no part of it.  So, in order to avoid that, it prohibited  Congress from declaring an official state religion, and it prohibited Congress from suppressing any other religion.  It didn't say that religion would have no role in publish life. . . the founders were French revolutionist.

We love that, right?  No we don't, or it sure doesn't seem that way if you listen to public discourse. There's plenty of people who would gladly suppress another religion if they could, or even create a state one if they were allowed to.  Anti religious folks, for their part, would gladly prohibit any governmental interaction with any religion, no matter what the nature of the association would be.  So the Freedom of Religion clause is constantly under the gun from both sides and hardly ever looked upon rationally.

Did the founders expect religion out of the public discourse?  No, of course they didn't. Did they feel it inappropriate for a Bishop, for example, to comment on, and try to influence the law?  No, they didn't expect that.  They just didn't want there to be a Church of the United States, or a Church of Virginia, basically.  And wise they were indeed.  State churches, such as found in Europe, have not done well recently.

Well what about the Freedom of Speech. Everyone can agree on that surely?

Well, apparently not.  Even from day one in the country we've seen folks who would be happy to run over the top of the right to speak freely.  Anti Sedition laws came in under John Adams, one of the founders.  And we've revived them from time to time.  Even now we'll occasionally take a run at restricting speech if we can figure out a way.

But we'll also pretend that it applies to speech in a civil context that the founders would have regarded as libelous. The provision, really, is to allow political speech, not to speak vile things about member of the public or the public at large no matter what civil libertarians may wish to pretend.

Same thing with Freedom of the Press. The Press is super zealous in protecting this right, and they should be, even where they use that freedom to argue that other freedoms ought to be stamped out.  But lots of folks despise the press and figure it ought to just shut up.  And they'd legislate it into shutting up if they could.  The Press doesn't help it cause much here either, as the Press is often pretty loud about wanting to wipe out some other freedom, as if Freedom of the Press was the only freedom there was.

Okay, well there's no dispute over peaceably assembling, surely. Wrong again.  This basically amounts to protesting.  People don't like that much, unless they're protesting.  And lots of governmental entities regulate it to the extent they can.

Basically, people like their own faiths and faiths like them, like what they have to say themselves, and figure any gathering they go to is legitimate.  As to everyone else. . . well they're not so sure.

Amendment II
A well regulated Militia, being necessary to the security of a free State, the right of the people to keep and bear Arms, shall not be infringed.

The Second Amendment is no doubt the most debated amendment to the Constitution and the one about which the oddest things are said.  People often treat it like its reading the Rosetta Stone and full of mystery.  It isn't, if you understand the times it was written in.  Just like those times informed the drafting of the First Amendment's Establishment Clause, they informed the Second Amendment.  A little history, therefore, is needed.

In Colonial America, and up until the 1880s, every American male was in a colonial militia or state militia.  Everyone.  We often read that the United States had no draft until the Civil War. That's just baloney.  The United States had universal conscription, into state militias, up until about 1880.  Every American male bore arms.  Basically, if you were 16 years old, you were in the state militia where you remained until you were about 60. As many men didn't make it to 60, that meant that most of them were in the militia for life.

The way militia's worked, for the most part, in both Colonial times, and up until the 1840s or so, and later in many places, is that they mustered annually.   That was it.  Basically, the militia mustered and drank a lot of beer.  Truly.  That's about as "well regulated" as they were.  Some states provided arms, some uniforms, but quite a few militiamen, ie., all men, showed up in their workaday clothing with their rifle or fowling piece.  They "drilled" a bit on the courthouse lawn, i.e., formed up into a military formation and marched a wee bit, and dismissed to drink beer.  Truly.

Now, as the militia existed to protect the state against attacks by Indians, the British, or the French, that worked pretty well actually.  People like to make fun of the old militias now, but some of them gave French, British, or Indian combatants terribly bruisings.  For that matter, Canadian militia really kicked US forces in the teeth during the War of 1812, and they were no different in nature.  The British held some American militia in contempt for poor performance, but thought that other militia units were a bunch of unfair baddies due to their effective use of rifles and unconventional warfare.

The reason for the Second Amendment is that the states feared that the Federal government would take away the right to own firearms in times of stress and leave the states defenseless.  As its now been determined that the Second Amendment has been incorporated, that now applies to the Federal government as well, although at least one court case from the 1930s had long ago forecast that.  And what that case from the 30s makes plain is that the Second Amendment specifically applies to the type of weapons that a state would use to defend itself, i.e., military weapons.

But people don't like to believe that in some instances.  For example, New York's Mario Caumo was railing the other day that "you don't need ten bullets to kill a deer," his point being that he wasn't going to act to ban deer rifles, but "assault rifles."

Well, the Second Amendment actually wasn't drafted to apply to deer rifles, although it would apply.  It actually was designed to apply to military weapons, or at least weapons that could be used that way.  All the talk about protecting weapons that only have a sporting purpose is completely missing the point.  A person could argue that we need not fear an attack from the British anymore, or even if Prince Harry does show up with a raiding party we're not going to repel him with a militia muster (the paparazzi would probably do), or it could be argued that the republic has withstood the test of time and the citizenry no longer needs military arms to potentially take action against a tyrant, but that's arguing that the Second Amendment should be repealed, not that it doesn't exist.  Folks who take an oath to defend the Constitution should be honest about that.

Amendment III
No Soldier shall, in time of peace be quartered in any house, without the consent of the Owner, nor in time of war, but in a manner to be prescribed by law.

Okay, we all like this one, right?

Well, we probably do, but the Army hasn't tried to quarter soldiers in homes, ever.  The Supreme Court did find the government could condemn property for big box stores, so you do have to wonder what we really think here.

We may actually get to find out.  A very rare case is presently pending in the Federal system on this very topic, in which he presents a case arguing that a police occupation of his home fits the bill here.  My guess is that the Courts will say the police aren't the military. Still, it's interesting to ponder.

Amendment IV
The right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated, and no Warrants shall issue, but upon probable cause, supported by Oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.

 We really hate this one, which is why we're testing it all the time.

More than any other amendment, there's constantly an effort to run roughshod over the Fourth Amendment, and generally the courts are regarded as a bunch of namby pamby do gooders when they uphold this amendment and strike down some law. That doesn't stop people from trying to figure out a way around it.

People who aren't breaking the law are really pretty comfortable with the idea that the police should be able to stop you and search you, your car, or whatever, because you look pretty darned suspicious.  And they ought to b able to enter your house too.  They should only be stopped form searching the houses of honest people.  That's basically the way most people view this.  If you listen to discourse on this topic, nine times out of ten, that's how people see it.

But the flip side is also true.  People feel free to feel that legitimate police actions should be controlled by mob rule, no matter how legitimate and procedurally correct they may be in some instances.  Whole communities will riot over legitimate due process, just because it doesn't equate with their notions of what the result should be.

Amendment V
No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a Grand Jury, except in cases arising in the land or naval forces, or in the Militia, when in actual service in time of War or public danger; nor shall any person be subject for the same offence to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

Okay,  now surely we're all in agreement on this one, right?  We love this, it's a hallmark of American culture.

Nope, we don't care for it either.

For starters people are actually pretty comfortable with the idea of people being accused of "infamous crimes" and being hauled off to court for them with as little effort as possible.  Indeed, people whine and cry that actions which might be civil offenses at best, but which are more likely simply bad political or business decisions, or just good luck some times, should be felonies.  After every Presidential Administration goes out of office, if there's a party switch, there's howls of protests that one politician or bureaucrat or another should be prosecuted.  And big economic events, like the banking collapse, or the earlier Enron type events, result in the cry of 1798 France; "off with their heads."

This amendment was designed to prevent torture and to keep the accused safe from the mob.  Right now, however, Americans are getting pretty comfortable with the mob as the arbiter of justice, and governments are pretty comfortable with even outlawing good luck.  Insider trading provides us with an example. Why is it illegal?  A person with inside information who wasn't inclined to use it would be stupid, and it shouldn't be a crime to use information you have due to your position.  Everyone actually does it, as a person would have to be a machine not to.

And people are pretty comfortable with other people's property being taken for government use.  Even the Supreme Court is, as the recent decision allowing property to be seized under eminent domain for use as a mall demonstrates.

And as we have also seen, people feel free to resort to mob rule where the mob feels that there's been an injustice, rather than allow the legal process to work as it should, and usually does.  A community can go into days of riots over a result it feels to be the wrong one, even where they have not heard all of the evidence, and they have not allowed the courts to operate.

Amendment VI
In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial, by an impartial jury of the State and district wherein the crime shall have been committed, which district shall have been previously ascertained by law, and to be informed of the nature and cause of the accusation; to be confronted with the witnesses against him; to have compulsory process for obtaining witnesses in his favor, and to have the Assistance of Counsel for his defence.

Nobody should doubt how hated this one.  It's so hated that right now the President of the United States, who was a Constitutional Law Professor, was, earlier this pat year busy spouting off about the finding that a criminal defendant was innocent.

In this particular instance that's disgusting and shameful, in my view, but its hardly unique.  I've heard plenty of public outcry about verdicts of innocence before.  Perhaps the most amazing thing is that criminal juries still work, by and large, protecting the rights of us all against, amazingly, us all.

Amendment VII
In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise re-examined in any Court of the United States, than according to the rules of the common law.

Same deal here.  As a lawyer, I've often heard either "what was that jury thinking?" or "wow, what a great system" based simply on  the results.  Juries are declared to be "dumb" or motivated by improper factors, simply because their results don't square with the speaker's views.

Indeed, we should decide whether we want juries, or not.  Not all modern legal systems use them by any means.  Most continental European ones, for example, do not, although we find it odd to watch those systems operate.

Amendment VIII
Excessive bail shall not be required, nor excessive fines imposed, nor cruel and unusual punishments inflicted.

People are generally happy with any high bail amount that a court might order.  It's only low bails that people complain about.  I don't think people have any problem with "excessive" bail.

Likewise, I think people are pretty comfortable with cruel and unusual punishment as well, and I've heard it occasionally espoused as a good idea.

Amendment IX The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.

Amendment XThe powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.

I'll handle these two together, as they are similar. And surely no rational person could disagree with these, right?

Oh yes they can, and they often do.  Plenty of people would rather resort to the courts and Federal government rather than all "the people" or "the States" to decide anything as, of course, they might decide the wrong way.  Sure, that's an anti-democratic view, but plenty of people think just that way.

Well, thanks goodness for the Bill of Rights.  Countries without similar provisions haven't always fared so well, in that effort to save people from their worst instincts.

The law gets larger over time.

Wyoming Statutes, the 1910 and 1920 volumes.  All the state's statutes, in one volume.

The 1945 statutes, five volumes.

Top shelf, the statutes today.

Today In Wyoming's History: Federal Court rules on same gender marriage case....

A few days ago I wrote a post here about the history of marriage. Last Friday, one of the three Federal judges in Wyoming struck down Wyoming's statute on marriage, which I've written about here:

Today In Wyoming's History: Judge Skavdahl rules on same gender marriage case....:

I haven't actually read Judge Skavdahl's decision, so my commenting on some aspects of it may be bad form, but I'm going to do so anyway.  One of the things I've often struck by in legal matters is how people and the press often fail to understand what a ruling actually does, or may do, and that even lawyers fail to understand how the law of unintended consequences tends to apply to big legal decisions and even the amendments of laws. For example, it's probable that the original proponents of no fault divorce never guessed that it would help usher in an age when many people would live in the same circumstances that previously would have been regarded as a common law marriage, but with no recognized marriage at all.

Anyhow, amongst the interesting questions is this. Does Judge Skavdahl's ruling operate the way he probably intended it to operate, or is the door now open to just argue that henceforth marriages in the state can't occur until a new law is drafted?  The existing law starts off reading as follows:

20-1-101. Marriage a civil contract.

Marriage
is a civil contract between a male and a female person to which the consent of the
parties capable of contracting is essential.

If that's what a marriage in Wyoming will be until Thursday, when Judge Skavdahl's ruling takes effect, can it now be argued that the definition of marriage fails under his ruling, and they just won't be at all?

It's an interesting question, but it's one that nobody is actually asking. And nobody will unless somebody tries to argue that in court, which would be unlikely.  Generally, nobody has an obvious interest in arguing that, which doesn't mean that it won't occur.  Probably if it were to occur, the Court would just "fix" the ruling to fit the desired goal.

That's basically what's happened in the overall context of the same gender marriage issue.  No matter what side of the issue a person is on, it's really basically an example of judicial legislation, although people aren't arguing that.  For those who take an original intent approach to Constitutional interpretation, the fact is that under the Natural Law marriages were always regarded as strictly male/female.  I know that people like to cite some odd examples, but they are extremely rare and usually rapidly break down under analysis. At the time the Constitution was written, the drafters were all familiar only with marriage as it then existed, and same gender unions would not only have been regarded as impossible, but illegal.  So any originalist interpretation of the Constitution would have to take that view into mind.  A person might still be able to reach the same results, by citing changes in other states and the Equal Protection provisions of the 14th Amendment, and that might be what the Court has done here, but that's a different position that what people conceive as having occurred.

Okay, on unintended consequences, it's almost certain that the one I noted above will not occur, but there are a host that I suspect will, and it will be interesting to see how they develop.

One that I'm almost certain will now occur is that "poly" marriages, i.e., more than one man or woman in a union will become inevitable.  I just don't really see how the courts can't find them constitutional under the same set of rationales that were used here.  At least one Federal Court has already issued that ruling, but then held its decision in abeyance.  This may seem far fetched overall, but only to people who don't live in the West where there are religious groups, presently small in number, that already espouse this view and always have.  So I think that's a given.

One unexpected probable result, however, is that in really thinking about the issue in a civil context, I suspect that the actual impact of the decision only effects something in actual legal terms to a very, very small degree, and ironically, in a way that the proponents of the change probably wouldn't fully want.  The real impact, in so far as I can tell, is mostly just on the division of property in a divorce.

The reason for this is that the civil law impact of marriage has been reduced pretty much to the provision of naturally born children (although even here it is greatly diminished) and property.  These features of marriage as a civil institution have always been part of the reason that it is a civil institution.  At first blush, a person might think that well of course, now those apply here, but that might not be fully correct.

It's incorrect, to be sure, as the "natural born" children part of it doesn't occur with same gender couples.  Yes, they can adopt and they can use surrogates, but they could before and the legal relationships that causes are already controlled by the law. So there's no changed there.

There is, however, in regards to property acquired during a marriage as opposed to a couple simply living together outside of marriage. Generally, the law doesn't control the distribution of property by break ups or death of couples that aren't married but living together, save for circumstances in which they'd contracted in some fashion to address that or there's a dispute about who owns what, which is fairly rare.  Now the law of marriage will apply.

That probably will have relatively low impact in testamentary proceedings, but it will now definitely bring in the law of divorce.  So an irony now exists in that one of the first impacts of a law changing the definition of marriage also expands out just a bit who is subject to the law of divorce.

Another area it will definitely impact is the area of insurance and benefits where a general "spousal" benefit exists, although that impact will be smaller than supposed because in the case of governmental employees it seemed to be expanding towards a "partner" definition in general.  It'll also impact the couples tax structure, although again a person has to wonder at which point a "partner" definition is brought into that, or at what point single people complain that tax benefits to the married no longer serve their original purpose and are themselves unconstitutional.  I think that effort would fail, but a person could at least argue that.  Probably not very successfully, however.

Another irony of this is that it takes this issue away as one that existed, to the extent it did, in the current Governor's race. Governor Mead is almost certain to win reelection, but he was getting asked about this a fair amount by the press.  At least the local Casper Star Tribune was clear in its view that the state should change the definition of marriage, and as the Tribune is present at every debate, this was going to come up every single time.  Mead, to his credit, was clear that he based his views both on his philosophical  position and his his religious views.  Not every candidate would be willing to admit this his religious views (Mead is an Episcopalian) had a role in it.  And citing to conservative Episcopal views in a state where the Episcopal church has really declined in numbers, and where that church has been in turmoils over this issue amongst others,is a pretty frank and bold position to take.  Now, however, this is removed as an issue for him, and should he decide to run for this or any other office in the future, he can take credit for his views but not have to live with the matter, maybe, as a continuing controversy. That all presumes, of course, that the Supreme Court doesn't enter into this debate soon, which is not a safe assumption at all.

If Mead is off the controversy hook here a bit, a group that may not be are people with strong religious convictions on this issue who hold public office in some fashion.  This is an issue that has been little explored, but this ruling might spark a crisis of conscious in some of these people, or perhaps might not, I honestly don't know. What is the case now is that we will have a situation in which County Clerks and Circuit Court Judges will be asked to issue marriage licenses and perform civil marriages and some of the people in those office, and perhaps more importantly some future potential office holders, may now have to reassess their ability to hold these offices, I'm just not sure. At least Catholics, Orthodox Christians, Muslims, Mormons  and Orthodox Jews hold religious views that regard some unions as immoral.  At the current time Catholics and Mormons are a significant portion of the state's demographics and also a significant portion of the legal community, with representatives on the bench as well.  Greek Orthodox Christians are a significant demographic in some, but not all, Wyoming towns and likewise are fairly well represented in the legal community, although the only Greek Orthodox judge, a District Court judge, retired some years ago.  Muslims are a very small demographic in the state at the present time (as opposed the Catholic and Mormon demographic which are growing), although they're interestingly well represented in the medical community.  Orthodox Jews, however, are nearly completely absent from the state.  How this shakes out I do not know, and it should be noted that none of these demographics has so far found it morally objectionable to issue marriage licenses in the case of divorce, which some also have moral objections to, so perhaps its a non issue.  It comes to mind, however, as a County Clerk in an eastern state just resigned from that office last week, feeling morally obligated to do so, so perhaps this issue might exist.  If it does, this will actually be a real problem as demographics that are very well represented in the state should not be excluded from holding office, and if they do this will operate as  type of prejudice that will have real, although as yet unknown, negative consequences.

On other things about the decision, while I'm not in the habit of criticizing Federal judges, I do think that Judge Skavdahl was very unwise issuing his decision so rapidly as the rapid release inevitably discredits it.  Those who are familiar with this process know that whenever a judge released a decision that quickly, he basically had his mind made up going into the hearing.  Generally, that doesn't bother lawyers, but it does bother the members of the public in matters of significance.  That should have been on his mind as the general history of public respect for Federal decisions on decisive issues is that the public doesn't respect them.  The Federal courts already have pretty low credit in Wyoming, as they're constantly overruling the state on matters of importance to the state, although that's usually the D. C. Circuit.  But beyond that, big socially divisive issues, while the Federal Court has jurisdiction over many of them, generally do not sit well with those on the loosing side if they are judge made.  The case of Roe v. Wade is the classic example, as its never been accepted by a large portion of the American public and this line of decisions is unlikely to with those who disagree with them either.  It's probably partially for that reason that the U.S. Supreme Court chose not to take it up right away.  People on both the left and the right are constantly complaining of "judge made law", and here in this area the change in the definition of marriage is becoming increasingly judge made.  When so many people feel alienated from the courts and disrespect them rushing to a judgment was foolish.

It was also frankly foolish to take the matter up on an expedited basis.  The better course would have been to take it up when it came up in the natural progression of the case and then rule on it. That does involve a lot of delay due to the naturally slow progression of a case, in the eyes of the public, but it doesn't look that way like the judge made his mind up immediately and forced a rapid decision, which is how this otherwise will look to many. Additionally, there was no real harm in delay in the legal sense, as changing the definition of something that's been read one way for centuries can't rationally create an emergency situation.  Of course, the argument would be that the 10th Circuit's decision created that emergency, but that too would have been a reason to go slow, as if the court had, chances were good that the 10th itself would have taken this matter up or perhaps the U.S. Supreme Court, and the local Federal court would never had to have done so, maybe.  Now it has, and some are celebrating, others are upset, and yet others will note that the same judge recently made a ruling on the Federal health care act here that didn't sit really well with everyone.  Sometimes proceeding slowly is a better approach to take.

Postscript

A couple of additional comments, as this story moves along.

The impact of the ruling came a couple of days early, as the Attorney General determined not to appeal. Given the recent 10th Circuit Court of Appeals decisions that Judge Skavdahl relied upon, the Attorney General was correct.  No point in doing a doomed appeal.  It wouldn't even serve to try to get these issues to the U.S. Supreme Court, for those who hope to do that, as the existing opinions already  stand and that did not occur.

However, the Federal District Court in Peurto Rico issues an opinion going the opposite directly that was scathing in its view of the recent decision such as the 10th Circuits.  Whatever a person may think of this issue one way or another, that decision is undoubtedly the most legally correct.  Whether it will stand or not is yet to be known, as presumably the loosing parties will appeal to the 1st Circuit Court of Appeals. For those hoping in a split in the circuits, this might be it, or it might actually present another basis for a Petition for a Writ of Certiorari, as its so clear in its views.

On another matter, here in this county we saw the spectacle of a non denominational woman cleric loitering around the courthouse all day hoping to find some same gender couples to marry, and finding one.  There's something unseemly about that.  Presumably any same gender couples that determined to marry weren't really looking into just bumping into a person commissioned to do it casually, which another female cleric who was supporting this movement noted in an interview yesterday.

Postscript

The other day I was looking at some old statutes, and in doing that I was curious as to how this set of laws originally read.  I couldn't find the absolutely oldest variant, but here's one that dates to the 1890s:

As we can see, the original text defined marriage similarly, but omitted the "between men and women" language.  Not that this is surprising, as marriage would have been conceived of in no other way at the time.

The language that follows is sort of interesting, and clearly is cast in terms of male and female.  It's odd that males could marry only upon reaching 18, but females needed to only have reached the age of 16.  Minors could marry, however, with the consent of apparently one parent, with the father given the veto power on that if he was alive.

Postscript II

What my personal prediction on this was has come true.

A lot of judicial decisions on any one big social issue have a certain "me too" quality to them, which shouldn't be the case but which does tend to be. That is, no one Federal judge wants to seem to be the last man left on the boat when a social issue seems to be going one way in the courts.

But some don't seem to be influenced by that, and some will stick with a reading of the law as it exists, rather than jumping on a trend. That's happened twice now since the Wyoming decision.

The first time happened with a Federal District Judge issued an opinion in Puerto Rico, which of course has Federal Courts. That opinion was pretty scathing towards other Federal decisions, and noted that Supreme Court precedence doesn't really allow for the district courts to overturn the law in this area. Really, the Federal Courts have been acting in contravention to precedence.

Now the Sixth Circuit Court of Appeals has done the same thing. 

This was inevitable.  Sooner or later, and more likely later as has happened rather than sooner (although quicker than I supposed) a Federal Court was actually going to apply the law accordingly to existing case law, which is what they are supposed to do.  The Court noted that social concerns were not supposed to be part of its opinion at all:

Of all the ways to resolve this question, one option is not available: a poll of the three judges on this panel, or for that matter all federal judges, about whether gay marriage is a good idea. Our judicial commissions did not come with such a sweeping grant of authority, one that would allow just three of us—just two of us in truth—to make such a vital policy call for the thirty-two million citizens who live within the four States of the Sixth Circuit: Kentucky, Michigan, Ohio, and Tennessee. What we have authority to decide instead is a legal question:  Does the Fourteenth Amendment to the United States Constitution prohibit a State from defining marriage as a relationship between one man and one woman?

This means that this will now go to the Supreme Court, probably in the next term.  It nearly has to, now that there's a split in the circuits.  My guess is that the Court will hold as the 6th Circuit has, that there's no Constitutional basis for changing the definition of marriage that has always existed as being a male/female union.  The Court's decision will be in part based upon its prior decision in Baker but also on the fact that the Court is well aware that big Federal decisions on social issues discredit the court and become societal disasters, and moreover they open up the door to endless successor cases as the boundaries of the change in the law are tested.  That would undoubtedly be the case here, should the Court go the other way.

One of the things here that has concerned me about this decisions going on the other way is that its my feeling that judicial decisions on social issues are very rarely accepted by the populace, and that people who rely on them under the theory that it means they've achieved some real victory fail nearly completely to understand that achieving a legal victory does not equate with actually winning an argument in the larger society.  Moreover, in a matter like this, in which people are relying on the decisions of judges in opinions that are pretty poorly based, they're really risking them being upheld.  Here, they are unlikely to be, and the law as it is actually written will blast back into existence literally with the stroke of a pen.  It's highly probable that same gender couples that believe they are married in the states with laws that don't recognize those marriage, but which are being conducted under the fiat of judicial authority, will find that they were never married in the first place.

That will undoubtedly result in a lot of protest and decrying of the Court, but the irony of it is pretty thick.  Having failed to really achieve what they wanted in most places through the legislatures, and having grown impatient with that process, they resorted to the Courts, which by their nature are, at the end of the day, non democratic. The Vox Populi is not supposed to be heard in court.  And not only is it not supposed to be heard, it tends to shut it up.  In a divisive issue, the group that gets shut upped tends to grow in strength if its view is widely shared, as there's the sense that a few jurists are substituting their personal views for that of the electorate.  People who had no prior strong feelings on an issue will develop one at that time as Americans really don't have that much respect for the judiciary really.  It was for that reason that the liberal The New Republic opined years ago that Roe v. Wade should be opposed by Liberals.  Here, in a year or so, the 6th Circuit opinion is likely to be upheld and the law of the states which found their law suspended by their Federal Courts will be restored, and this debate will return to the legislatures, but with positions very much hardened.