Monthly Archives: October 2009

To borrow a phrase, “Markets in Everything”: Halo3 Coaching Edition

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You can actually pay someone for Halo 3 lessons. It’s like hiring a tennis pro to help you work on your swing, only you don’t have to go to the trouble of getting up off your couch.

The average market price seems to be around $35 hour, though if you want the best coaching, you’ll have to shell out $50 for a lesson. For the price-conscious Halo3 student, however, there are economy options. Such as hiring this enterprising 13 year old for the bargain rate of $10 an hour. (And for the status-conscious, you can even buy a year’s virtual friendship with a pro for only $35.)

While the websites are not “normal” professional-looking, they are probably well designed for the target market. They come complete with online payment, Halo Resumes, customer testimonials, and even little windows to click on to “Chat with a Customer Service Rep.”

Some of them seem to even be getting an education in supply and demand. Such as when there’s a shortage on a product, slide up the demand curve:

I’ve been doing lessons for Halo 2 and Halo 3 for nearly a year now and have nevered [sic] raised my prices before. However, I’ve gotten to the point where I have a constant backlog of lessons so I’ve decided to raise my prices.

Kids these days. Back in my day, there was no one you could go to for lessons on beating Bowser in Mario Bros. or shooting lessons for Duck Hunt. (Free tip: to improve your accuracy, put your gun so it actually touches the TV screen. Also, don’t shoot the dog.)

They even have helpful tactical jumping lessons. It’s like parkour for people without upper or lower body strength.

And while I recognize these 13 year olds could probably kick my butt at Halo, I do think I could be competitive with them in the Halo3 Services market. No, not as a Halo coach, no one would hire me for that. Instead, I’ll offer, for a small fee, the once in a lifetime opportunity to play Halo with a real live girl.

Judging from the Halo players I run into, the demand is certainly there. And it is most definitely an underserved market.

-Susan

p.s. Hey Michael, want to go into business with me? You can offer lessons in erudite trash talk, you’re the undisputed master of that.

Michelle Obama Doll Wears Designer Label Knock Offs

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Because clothes are ‘useful articles,’ strong copyright protections are not available to fashion designers. Essentially, so long as parts that are trademarked are not copied as well, cheap clothing retail stores can go on making knock offs of designer labels all they want. And by my reckoning, that’s as it should be — I don’t think the case can be made that we suffer from a shortage of designer label fashion lines, given how every celebrity and their dog have one, so there are no welfare gains to be had from allowing fashion to be copyrighted.

But over at Counterfeit Chic, there’s an interesting suggestion made that, even if you can’t infringe a copyright by making a knock off of a dress, making that same dress for a doll might be infringing.

MichelleObama_dolls_ChiTrib_10-14-09

These Michelle Obama dolls ‘action figures’ feature dress designs of some apparently well known labels:

And what of the designers whose dresses have made fashion history? Paradoxically, if Feinberg had reproduced the dresses themselves and sold them in a Brooklyn boutique, their original designers would have had little or no claim under U.S. law. However, the same may not be true of the 6-inch versions.

Let’s consider each dress individually. Apart from the purple Pinto, which is probably too simple to trigger any sort of protection (belt sold separately), the doll-maker may run a slight risk of playing (court)house with his creations. Either Donna Ricco herself or whoever created the black-and-white fabric pattern might have a copyright claim, depending on how closely Feinberg copied the print. And if either Narciso or Donna created a sketch of his or her respective dress before stitching it, the drawing (though not the dress) would be subject to copyright — making the doll theoretically an infringing derivative work.

As Counterfeit Chic points out, this raises another problem. An infringement claim requires proof of copying — but the copying here would almost certainly have been of Michelle Obama’s actual dresses, not the copyrightable sketches. Proof of copying can also be shown by demonstrating that the alleged infringer had access to the original work and substantial similarity, but would a copy of a non-copyrightable item that is itself a non-infringing depiction of a copyrightable work count as access?

-Susan

The Law of Aliens, Part II: The Law of Post-Atmospheric Extraterrestrial Encounters By Non-State Entities

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The chairman of space history at the National Air and Space Museum has said that “[t]he idea that a private investor can put together the funds to develop rockets capable of a lunar mission is extremely speculative, verging on fantasy.” And so far, he’s been right.

But there are a fair few investors out there who want to prove him wrong, and one day, inevitably, if we ever want to truly expand into space rather than merely treat the cosmos as a glorified science lab, it’s going to take private commercial initiative to do it. So what happens if it’s a private corporate entity that first encounters intelligent extraterrestrial life?

Public international law (as opposed to conflicts of law) governs, in theory, only the relationships between sovereign states, not the actions of private individuals. The body of space law recognizes this, and rather than imposing restrictions on private spacecraft, it instead imposes obligations on states to regulate the space activities of non-governmental bodies under their jurisdiction.

As an initial matter, it is certainly legal under international law for non-government bodies to engage in space travel. The USSR, during negotiations over the Outer Space Treaty (“OST”), had originally wanted to ban all private space flight, but the U.S. refused to agree to this. However, whether private individuals can obtain property rights in space is a separate, more difficult, question. Although appropriations of resources by states is prohibited, this prohibition was not explicitly extended to cover non-governmental corporations. Many commentators have made the case that private ownership in space is therefore allowed, and have explained how ownership can exist even outside of state jurisdiction by reference to civil systems [PDF]:

The relationship between property and sovereignty differs under common law and civil law systems. The common law theory of title has its roots in feudal law. Under this theory the Crown holds the ultimate title to all lands, and the proprietary rights of the subject are explained in terms of vassalage. Civil law, on the other hand, is derived from Roman law, which distinguishes between property and sovereignty. Under this theory, it is possible for property to exist in the absence of sovereignty.

So for now I’m going to assume that, yes, private property in space is possible, based on a discovery-and-exploitation regime that grants rights to those who first make use of a new territory. (This will be partially in following with the property-ownership aspects of the Larkin Decision, from the Federation Court, holding that “the real owners [of a celestial body] were the flesh-and-blood men who had maintained the occupation.” See Robert A. Heinlein, Stranger in a Strange Land (1961).)

Read the rest of this entry: The case of Asteroid Miners v. Aliens »

The Law of Aliens, Part I: The Law of Post-Atmospheric Extraterrestrial Encounters By National or International Organizations

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In keeping with LL2’s long standing tradition of providing you with the hardest hitting and most practical legal exposés, this blog will now present an informative series on the law of alien contact.

To begin with, I should probably instead use the word “extraterrestrial” rather than “alien,” as alien is already a well established legal term of art. So this is not the law of foreigners in a state’s territory, but rather the law of contact with intelligent non-human entities that did not originate from earth.

What if First Contact happened tomorrow? How would humans react, and how would the law apply? Assuming the aliens didn’t immediately blast us out of existence, that is. I think it’s safe to say each state would want to have its own say in how things with the aliens go down, and that states would have their own individual opinions and conflicting agendas regarding the encounter. Which means, inevitably, they would each take whatever actions they deemed appropriate and then afterwords seek to justify those actions on the basis of contorted interpretations of international law. The United Nations would also want to establish a central role for itself in the fray, and because it does possess the institutional mechanisms that states tend to follow when seeking to take multinational action, the UN would likely emerge as the primary vehicle through which multilateral discussions and actions would take place.

So international law would be the natural language for states to use when framing these discussions. In this first post, I am going to examine how international law in its current form would govern an encounter in outer space between extraterrestrials and a national or international body. The next two posts will consider outer space encounters between aliens and private parties, and encounters with aliens on earth.

Read the rest of this entry: What if aliens land on a Canadian space ship? »

Why Obama Moves at a Snail’s Pace on Gay Rights: It’s Hard to Negotiate When Everyone Knows You Have No Where Else To Go

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Obama’s speech on Saturday annoyed me, but it was a subdued, anticipated annoyance. Everyone knows Obama’s done jack all for gay rights and he has no plans on immediately addressing the issue. The only semi-firm commitment he made was to not let his nominees or appointees lose their jobs on the basis of opposition to their sexual orientation — and if he actually keeps that pledge, well, it’s a start.

But this whole hoopla over the “internet left fringe,” no matter how significant the misstatement truly was or whether it was just an extremely clumsy paraphrase by NBC’s Harwood, set me off like dry tender. And apparently it had the same effect on all those pajama-clad bloggers.

Obama’s generically supportive speech leaves a lot of room for criticism:

“I greatly appreciate the support I’ve received from many in this room. I also appreciate that many of you don’t believe that progress has come fast enough. I want to be honest about that. Because it’s important to be honest amongst friends.”

Man, Obama is good at this whole “let’s be candid” thing. See, he’s admitting, indirectly, that he’s been a little slow; he’s softening the blow for when his detractors introduce that irrefutable criticism. And, “It’s not for me to tell you to be patient,” Obama acknowledges. He’s not counseling patience — in a round-about, politician-speak way, he’s telling supporters of GLBT rights that they need to keep doing their thing and not sit around waiting for Obama to get on board. Because it is more efficient for him if he waits for a more opportune time to set his sights on the issue.

The problem is, the problem has always been, gays have no where else to go. They can’t redirect their monetary donations, they can’t start voting against the Democrats — because their only other option is a party that has made clear its choice to court the vote of those motivated by fear and prejudice rather than of those motivated by a desire for equality and human rights. So no matter how much Obama fails to come through for the GLBT wing, he knows — they ain’t going anywhere. Most people aren’t going to vote for someone who denies their equal dignity as a human being, just to make a political point.

Sure, they can reduce funding and grassroots support, but that’s a cost he is clearly willing to accept.

And you know what, I get it. I really do. Obama’s got a giant agenda, and a limited amount of time to do it. There are certain temporal orderings of the issues to be addressed that will allow more overall to be accomplished.

And I don’t necessarily disbelieve that Obama fully intends to come through on his promises — some day. But he has deftly avoided providing any sort of a time table he can be held accountable to, and if I had to guess, plans on making this a cause to take up when/if he’s a lame duck in his second term. By then, not only will there be less political risk for him, but the voter support for such a move will almost certainly have increased as well.

But that’s seven goddamned years away. I liked the fierce urgency of now better.

-Susan

Saturday Evening Rap Break: Pimp My Satellite

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Yo Russia it’s me, your arch-nemesis,
We the G’s over seas with Micky-D’s stains on our T’s,
with luxuries like you wouldn’t believe,
we’ve got more ringtones on our iPhones than China’s got Chinese,
We’re America biyatch, the land of the free
We gave you Michael Bolton and Jurassic Park 3
Our soccer teams suck and our beers taste like pee pee
but our rhymes are so phat they get type II diabetes

But enough about us, how come you ain’t been callin me?
I guess you’re trying to stabilize your volatile economy,
preoccupied nationwide with new domestic policies,
psych, ya right, I know you tryin to follow me
You’ve been
Disgraced in the space race, trying to save face after comin in second place,
Just enough to taste victory, chase history, ace Kennedy, but ya lost pace with your enemy,
and now you’re layin low, plottin’ for as long as we’ve known ya,
You hold you’re head up like Neil Armstrong didn’t pwn ya,
that secret space ride that you’re tryin to hide isn’t something I would publicize with any pride, I’ll tell ya why…

-Susan

The United States Are An It: How Big Government Nationalized Grammar

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Via Language Log, here’s a neat article on how the U.S. went from a plural to a singular: Supreme Court Usage and the Making of an ‘Is’.

Immediately after the founding of the United States of America, it was standard practice to refer to the entity in the plural, as a grouping of states rather than a singular body. Then, by about the mid-1800’s, use of “is” or “are” became pretty much interchangeable, though the frequencies at which was more favored varied. You could even use both in the same breath if you wanted to, as displayed in an 1882 case: “[T]he doctrine [of sovereign immunity], if not absolutely limited to cases in which the United States are made defendants by name, is not permitted to interfere with the judicial enforcement of the established rights of plaintiffs when the United States is not a defendant or a necessary party to the suit.”

areis

Today, anyone over the age of four stating that “the United States are located in North America” would be looked at funny, or possibly suspected of taking that whole states rights thing a little too far. Contrary to folklore wisdom, it wasn’t the Civil War that effected the change, but it was rather the result of a gradual semantic shift.

Only in the 1900s did the plural usage fade entirely from Supreme Court opinions. This comports with a contemporaneous account from a commentator in the Yale Law Journal, who observed in 1900 that “the plural use of ‘United States’ is gradually passing, under stress of the ever-increasing sense of unity in the national life.”

“The United States are” has only been seen in a Supreme Court opinion on two occasions since 1901, the last occurrence being in 1935. Unsurprisingly, the sole judicial hold out for the plural form, Justice McReynolds, was one of the Four Horsemen that fought valiantly against the New Deal and the federal tyranny of the commerce clause.

-Susan

The Website Theory of Statehood

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Although the definition of statehood under international law has not been definitively resolved, traditionally, per the Montevideo Convention, “The state as a person of international law should possess the following qualifications: (a) a permanent population; (b) a defined territory; (c) government; and (d) capacity to enter into relations with the other states.” In addition, recognition of a state by other states arguably plays a more important role in the statehood process.

However, I would like to propose a new criteria by which the claims of would-be sovereigns can be evaluated. In today’s world, e-governance is rampant. Politicians stay in contact with their constituents via their homepages, agencies administer regulations online, and court filings can be done with the click of a mouse. So whether or not an autonomous region has a permanent, defined web presence that has the capacity to assist its governmental activities is a vital consideration when examining claims of statehood. So, using the Website Theory of Statehood, how do existing unrecognized states stack up?

Taiwan: Taiwan’s somewhat unique status in the “Is it or is it not a state?” debate makes it a good starting place to test the theory. Taiwan’s pseudo-official statehood is reflected in the fact that it has its own country code top-level domain, of .tw. However, ccTLD’s are poor indicia of statehood in themselves; they are distributed by ICANN, and substate regions can also be issued them, such as Jersey’s .je and the Virgin Island’s .vi.

Still, Taiwan starts off on a good note by displaying two strong hallmarks of internet statehood — numerous web domains for each different branch of government and the use of the .gov subdomain for its various state webpages. For instance, the president is located at http://www.president.gov.tw/en/, while the National Assembly is at http://www.na.gov.tw/en/index-en.jsp. (Bonus Trivia Fact from the president’s web page: What do the U.S. and Taiwan have in common? Both out presidents have law degrees from Harvard.)

None of the websites of the various Taiwanese government branches get particularly high marks for style, but they aren’t offensively ugly at least, and they amply satisfy all requirements for accessibility and content.

Verdict: Although Taiwan may not be a recognized sovereign under international law, it is a thriving Internet State.

Somaliland: Although Somaliland’s website is not nearly as sophisticated as the Transitional Federal Government of Somalia’s, Somaliland gets credit for the fact it actually operates from within its own territory. The prominently placed waving Somaliland flag image is annoying, but by itself, not particularly offensive. All in all, in terms of web design, it’s about on the level of a page created by a marginally talented middle school student.

Of course, the webmaster’s yahoo email address is a significant mark against a finding of web sovereignty. And although the fact it maintains a separate website for its Upper Parliament might have won it back some points, as the website does not appear to have been updated at any point in the past three years, it’s really more of a net loss.

Interestingly, the neighboring autonomous state of Puntland has a much more sophisticated web presence, although it is not seeking sovereignty but rather continues to maintain it is a part of Somalia. Aside from the annoying page intro, Puntland’s website is respectable and decent looking. It actually reminds me of the websites of several county governments from my home state of Georgia: clearly governmental in nature and reasonably active, but still small-time government.

Verdict: Not a state, but I’ll give them a solid E for Effort. Somaliland ought to seek advice from Puntland on how to manage its e-statehood.

Kosovo: The websites for the various government branches of Kosovo are all clean, sharp, and authoritative, with a faint air of bureaucratic staleness. In other words, they look exactly like what you would expect for a sovereign state government’s website.

Meanwhile, the website for the Serbian Government of Kosovo is, while passable, somewhat clunkier. More importantly, the dismal imagery and content of the site is all extremely negative in tone, focusing on pictures of bombed out buildings and emphasizing the fear, instability, and chaos of the region.

The contrast between the two certainly weighs in Kosovo’s favor. Kosovo’s website is professional and businesslike, and gives the impression that it is the model of responsive and diligent governance. In direct opposition to this is the Serbian website, which stresses its inability to control the region and is primarily concerned with advancing a political agenda rather than engaging in ah actual governmental capacity.

Verdict: Although the facts on the ground may be drastically different, in terms of its website, Kosovo qualifies for Virtual Statehood.

Cabinda: The wannabe sovereign territory of Cabinda, located in Angola, is a classic example of the self-deluded unrecognized state. Cabinda’s inability to exercise sovereign governmental control over the region is rivaled only by its complete incompetence at web design. Tiled backgrounds, flying bird gifs, scrolling text, spinning “email” icon, images unapologetically created by MS Paint? My god. I’d call this a sad excuse for a geocities webpage, but that would be a gross insult to Geocities webpages everywhere — Cabinda hasn’t even yet progressed past the Angelfire-level of web design.

Verdict: Does not meet even the most minimal of qualifications for Internet Statehood.

Western Sahara: The proclaimed government of Western Sahara has no access to a ccTLD, but .eh has been specifically reserved for the nation once it manages to obtain a unified voice. In 2007, the Sahrawi Arab Democratic Republic, the government that claims to speak for the sovereign territory of Western Sahara, tried to lay claim to the domain, but Morocco objected. As a result, ICANN refused to release .eh, stating that because of competing claims,

ICANN does not see a way to approve the .EH ccTLD delegation to one of the applicants without violating its long-standing policy unless the contesting parties are able to reach an agreement.

The Sahrawi Arab Democratic Republic still has a website, however: http://www.rasd-state.ws/

Note the .ws in the domain name. Now that’s actually a rather clever bit of statehood marketing right there. The .ws ccTLD is in fact registered to Samoa, although the Sahrawi Arab Democratic Republic is cleverly passing off the “ws” as standing for Western Sahara. Who needs .eh, the intended ccTLD for the nation you claim control over, when your Samoan buddies will lend you a domain name that sounds like it was actually meant for you?

Sadly, the website is in Arabic, which I don’t actually speak. The page gets medium marks: although it is simple, it manages to avoid being hideous, and I am reasonably confident that if I could read Arabic the site would be easily navigable. However, judging by the page URL’s (in Spanish, which I can pretend to read), the website does not provide anything in the way of government services, which is a mark against it. However, there do appear to be “official government documents” in PDF form, which gives it a little cred.

Verdict: Although Western Sahara’s separatist government displays some promising signs of Virtual Statehood, they are still a fair distance away from achieving internet sovereignty.

Abkhazia and South Ossetia: Aesthetically speaking, South Ossetia’s webpage is my favorite of all the unrecognized states’. It is official looking and professional in appearance, and yet still manages to be friendly and pleasantly warm and inviting. You’d totally want to vacation in a country with a website like that — they seem like such nice people. Also, it’s got snow leopards.

Abkhazia’s website is slightly more severe in appearance, comes across as a no-nonsense kind of nation, and may or may not have been a law firm before it decided to declare itself state. The blue-grey color scheme? The overlapping boxes lay out? That is seriously every D.C. small-to-medium sized law firm homepage ever.

Tellingly, however, both Abkhazia and South Ossetia lack their own ccTLD, do not have separate web pages for different branches of government, and do not employ the use of.gov subdomains.

But this doesn’t rule them out entirely. One major point in the break-away regions’ favor is that their websites far outclass Georgia’s websites for the region. Just take a look at Georgia’s Abkhazia homepage: http://www.abkhazia.gov.ge/. It is ugly, slow to load, and contains graphics that appear to have been created by the same MS Paint artist that provided the images for Cabinda. Most of the English language pages are labeled “under construction,” and I’m honestly surprised they didn’t also include those little animated gifs of smileys wearing hard hats to show that. South Ossetia doesn’t even appear to have a .ge website that I could find, perhaps because Georgia revoked South Ossetia’s autonomy? At any rate, not having a web presence for it at all is a dismal way of showing your Internet Sovereignty over a region, Georgia.

Verdict for Abkhazia and South Ossetia: Have not yet achieved Internet Statehood, but are clearly serious contenders for the title. Recommend that Georgia take immediate steps to overhaul its own websites for the regions in order to firmly establish its claims of sovereignty.

Nagorono-Karabkh Republic: The website for the Nagorno-Karabkh Republic contains flashing banners and animated .gif files. This is an instant disqualification for statehood.

Verdict: Not a state. True sovereigns avoid anything that might induce epilepsy in their web visitors.

North Korea: Under International Law, North Korea is a recognized nation. However, under the new Website Theory of Statehood, North Korea should be considered a failed state. This may sound harsh, but given that the Admin of the website acknowledges that there is no internet access in North Korea and that no one in North Korea can actually see their own website, and that therefore the only people who use it are foreign North Korea enthusiasts, http://www.korea-dpr.com actually has more in common with a Beanie Babies fansite than it does a government webpage.

Although the website does at least exist and is moderately functional, it appears that a 13 year old goth boy was hired to design it. Sadly, the forum that was once featured on the site has since been removed. Apparently a web forum was too democratic for North Korea, as the old forum was replaced by a blog, which announced the change by stating: “Today we launch the new KFA Forum, which will mainly be driven by a few select moderators. Of course, everyone can still contribute with their thoughts, ideas, articles, etc, but we’ll be sure to have much more quality content for you.” In other words, the proletarians were not generating enough ‘quality content,’ so a more restrictive approach was adopted for their own good.

Notable features of the site include a FAQ, with helpful answers to questions such as, “Is North Korea a Dictatorship?”, “Is it true everyone in North Korea is starving?”, and “How can I join the North Korean army?”

Verdict: Not a state. I don’t care if the United Nations recognizes North Korea; when Transnistria, Puntland, and Nagorno-Karabkh have better web presences than you do, your statehood is officially revoked.

-Susan

Can you reuse a stamp from a mailed letter that did not get postmarked?

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Sadly, no.

I was guessing that would be the answer, but I figured it was worth checking. For some reason, the stamps on the DadMail I receive seem to go unmarked by the post office an unusually high percentage of the time. I received a letter from him today with four forever stamps on it, all unmarked, which seemed like a waste. So I wondered… I don’t suppose I could scrape those off and slap them on another letter?

According to 18 U.S.C. § 1720, paragraph 3,

Whoever knowingly uses in payment of postage, any postage stamp, postal card, or stamped envelope, issued in pursuance of law, which has already been used for a like purpose—
Shall be fined under this title or imprisoned not more than one year, or both[.]

So it looks like the Post Office is way ahead of me on that one.

But now here’s another question. I am reasonably certain the letter my dad sent me was not nearly heavy enough to warrant four stamps. I’m pretty sure it could have gotten by on two. If I were to go to the trouble of weighing it and checking the requirements, and found two of them were in fact not needed, would it be a violation to use just those two? Tragically, I think even the unnecessary stamps are now forfeit, as “which has already been used for a like purpose” suggests yes, their use for the purpose of mailing — even if the use was not required — now makes them tainted.

And anyone else remember hearing about that old trick where you write the receiver’s address in the sender space, and the sender’s address in the receiver space, so that when you don’t attach any postage it gets “returned” to the intended recipient? I wouldn’t exactly recommend trying it, but it looks like that’s only punishable by a fine under 18 U.S.C. § 1725. Although I am sure there is a fraud statute lurking out there you could tag that under as well.

-Susan

I see your dissent, and raise you a re-dissent.

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I was trying in my last post to stick mostly to issues of remedy in the hypothetical world where a violation is assumed, because Establishment Clause jurisprudence ain’t my forte, but I’ll try and respond a little. (Except respond in that wishy-washy way where y’don’t actually cite many laws because y’don’t actually know that many…)

First off, hey, I am more than happy to abandon Lemon. To quote dear buddy Nino, “As to the Court’s invocation of the Lemon test: Like some ghoul in a late night horror movie that repeatedly sits up in its grave and shuffles abroad, after being repeatedly killed and buried, Lemon stalks our Establishment Clause jurisprudence once again, frightening the little children and [government] attorneys.” If the one thing to come out of Salazar is a final stake through the Lemon test’s heart, that wouldn’t be too shabby.

But Scalia lost me a bit during the oral arguments yesterday, with his apparent bafflement with the idea that a cross might somehow not represent everyone. If you want to test that theory, just imagine a national monument to veterans that was a Wiccan symbol — and watch the fur fly and howls of fury ring out.

A cross is Christian. I do feel there’s ample leeway for crosses under the First Amendment when, like Argonne, a cross is erected — specifically at the time it was created — as a deliberate memorial to war, but there is some serious retconning going on with Sunrise Rock. And this is where I really agree with Buono — it is not the cross per se that is so offensive, it is the strong arm tactics that prevent the display of any other religion. As for the MLK Jr.’s church example, that would not be at all problematic, because the history there makes it abundantly clear that the governmental intent would not be promotion of any particular religion. The same can just as adamantly not be said to be the case for Sunrise Rock, where legislative protection has never been prefaced as anything other than protection-of-a-cross-because-it’s-a-cross.

And I’m not really sure Kagan was right about that when she said during the oral arguments that the VFW was free to change the speech, but I can’t find the article I was reading yesterday that covered that in more detail, so maybe I’m the one mixed up. (And if she is right, the government made a serious error. What if the VFW turned it into “a monument for the dead killed by the traitorous U.S. government on 9/11”?)

What bothers me most about the whole deal is the blatant bad faith of the government in all of these instances. I don’t think it’s really arguable that:

1) The overwhelming majority of these cases involve the government defending Christian symbols and refusing to allow the display and placement of non-Christian symbols; and,

2) If the Sunrise Rock cross had not specifically been a “cross,” Congress would not have wasted so many man hours writing new laws to defend it.

The fact the government can do this over and over and over again and then still put on the innocent act and breathlessly proclaim, “Oh! But it’s not about Christianity! It’s just about the memorial and our heritage!” every time it gets litigated bothers the hell out of me. And the bad faith in Sunrise Rock is even more apparent — this whole issue started up because they wanted to avoid having to let other religions also be displayed in the park. “Bad faith” almost doesn’t go far enough in describing the government’s tactics — they aren’t being subtle about their promotion of Christianity and they don’t even care.

To summarize: The government cannot weasel its way into promoting a particular religion by abusing loopholes, engaging in legislative creativity, and bending over backwards to escape black letter restrictions that prohibit the substance of what they are doing.

(And to clarify that statement a bit — no, I do not believe there is any “conspiracy” or deliberate intent to do this. It’s just the result of a series of unconnected acts by a largely-Christian legislative branch which results in an emergent pattern of Christian favoritism. But that doesn’t make it okay.)

As for the standing, I’m completely with you, and I think I may have came across more strongly than I truly feel. (Although the “is standing really-truly jurisdictional-in-the-classical-sense, particularly when its prudential” line of thought is an awesome subargument all in its own I might address later…) Still, what would happen in a case where the government did blatantly establish a religion? But in such a way as to not directly infringe on anyone else’s rights to practice? The injury would resemble some version of “mental distress” or “offended sensibilities,” but I don’t think it should be dismissed solely on that ground. We proved from Roe v. Wade that we can invent new standing tests when faced with sui generis injuries that don’t quite pass the standard test, and there are already allowances on tax payer standing when it comes to religion. So I think a reasonable argument can be made to recognize a different set of injuries that can provide for standing in the Establishment Clause context. “I’m offended” is never sufficient, but something more along the lines of “I am severely offended, and the Constitution protects me from having my religious sensibilities trampled on by the government in narrow situations that involve the state promotion of religion.” Only written so it sounds prettier.

-Susan