Tag Archives: Learning to Love the Law

SCOTUS Gets One Right and Pagans Should Be Glad

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It’s an interesting and odd bit of Americana that religious and racial rights are often first achieved in the military and the prison — two of America’s most regimented institutions. But once, the military, for example accepts that Pagan soldiers have a right to worship on the eight main Sabbats or to be buried with symbols of their faith, those rights tend to work their way into the larger society.

Although I am a member of the Supreme Court bar and an officer of that Court, I admit that I can be a bit cynical, sometimes, about certain pronouncements. However, today the Court got one right — hit it out of the ballpark, in fact. In Holt v. Hobbs, SCOTUS issued an opinion that, while directed at one of the Abrahamic, monotheistic religions, may well have positive implications for Pagans.

Holt v. Hobbs deals with a Moslem prisoner who believes that his religion requires him to wear a half-inch-long beard. Arkansas prison officials refused to allow him to do so, arguing that he could hide contraband in his beard and/or that he could grow a beard and then shave it in order to hide his identity and, then, apparently, escape from prison or evade detection within prison walls. However, those same officials allow quarter-inch beards to hide dermatological conditions and allow prisoners to grow the hair on their head longer than a half an inch.

Courts tend to give prison officials quite a bit of deference in such cases — it’s the prison administrators, after all, and not judges, who are charged with maintaining safety within the prisons. But Congress passed a law, the Religious Land Use and Institutionalized Persons Act of 2000 (RLUIPA), that provides special rights for those who wish to exercise their religion in prison.

SCOTUS rejected Arkansas’ arguments against the prisoner’s half-inch beard. It was not impressed by Arkansas’ argument that some Moslems don’t believe that they must wear a half-inch beard:

[T]he protection of RLUIPA, no less than the guarantee of the Free Exercise Clause, is “not limited to beliefs which are shared by all of the members of a religious sect.” Thomas v. Review Bd. of Indiana Employment Security Div., 450 U. S. 707, 715–716 (1981).

What this should mean is that prison officials can’t deny a Heathen the right to pour blots simply because not all Heathens pour blots. They can’t deny a Wiccan the right to worship skyclad simply because some Wiccans wear robes. They can’t deny incense to a Kemetic Pagan simply because not all Kemetic Pagans use incense. I’m not saying that each of these battles won’t need to be fought. But the Court rejected the notion that unless every member of a religion agrees with a practice, no Pagan can demonstrate a need to engage in the practice. You may not need gluten free cakes and ale, but that’s not a reason to deny the practice to incarcerated Pagans.

If they imprison me, I can practice my religion as long as I can have an few hours of solitude in the morning and some time every day with nature, even a weed, or potted plant, or the rill running underneath the prison. It won’t matter that Lady Unique Inclination of the Saturn Return announces that all true Pagans require a wand, a cup, a pentacle, and a sword to practice Wicca. And when they imprison her, she shouldn’t be limited by my demands.

Instead, as SCOTUS explained, RIULPA demands:

a “‘more focused’” inquiry [that] “‘requires the Government to demonstrate that the compelling interest test is satisfied through application of the challenged law “to the person”––the particular claimant whose sincere exercise of religion is being substantially burdened.’”

In the end, the government must show that ends it wants to achieve (stopping the flow of contraband and ensuring accurate identification of prisoners) cannot be achieved by narrower means than the ones it currently uses (disallowing half-inch beards). As SCOTUS explained:

Nevertheless, the Department does not require inmates to go about bald, barefoot, or naked. Although the Department’s proclaimed objectives are to stop the flow of contraband and to facilitate prisoner identification, “[t]he proffered objectives are not pursued with respect to analogous nonreligious conduct,” which suggests that “those interests could be achieved by narrower ordinances that burdened religion to a far lesser degree.” Church of Lukumi Babalu Aye, Inc. v. Hialeah, 508 U. S. 520, 546 (1993).

Nice to see them get one right.

Picture found here.

Leap and the Net Will Appear

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I don’t talk a lot about my job on this blog.

I can’t, although it’s not as if right livelihood isn’t a huge part of being a Witch.

But, a lot of what I do for my clients is confidential and, even once it’s public (as in: has been filed in court or has won a case), I still can’t identify myself with it because being represented by a Witch may not be helpful to my clients and I have a solemn duty to vigorously advocate for their interests.

But, in essence, what I do is write legal argument for a living. I produce persuasive prose, as I sometimes say, for pay, and it’s honorable work, work that helps to ensure that justice may be done, and work that I feel privileged to get paid to do.

There are two kinds of legal argument. The first involves laying out my arguments for why I’m right and why the judge should interpret the evidence and the law the way that I want hir to, in order to rule for my clients. The second involves answering the arguments of other lawyers to the judge, or of the judge to the next highest tribunal.

I’d almost always rather do the first. I can take the evidence and the law and arrange them in a logical progression in order to show why I’m right, why my clients should win. I’m in control and the “only” fee that that mystical entity known as “The Law” requires is that I delve as deeply as possible into the statute, the legislative history, the cases, and the evidence. It can be excruciating, but it’s also, in my own experience, almost always mystical and wonderful. There’s always a point at which it feels like dancing with something wonderful, and lovely, and right.

Answering someone else’s arguments can be fun, but it’s almost always, in my experience, more difficult. That’s because most other people don’t delve, as far as needed, into the statute, the cases, the rationale behind the law. (Or, if they have, they’ve found that their case is just wrong. That’s when, again, in my experience, an ethical lawyer suggests settlement. If you think a tribunal is difficult to convince, try convincing your own client that s/he may not have the case s/he imagined. But I’ve done it; oh, Goddess, have I done it.) And trying to answer an argument that’s less than logical is hard; it’s, in W’s words, hard work. It’s more difficult than it is to answer an argument that simply misapprehends the evidence or that understandably failed to catch a subsequent development in the law.

All of which is a long-winded way of saying that, lately, I’ve had bad writer’s block because I’ve been trying to answer a sketchy and less-than-well-developed argument. Finally, in the last few days, I just punched through the writer’s block and started an almost stream-of-consciousness writing marathon. I ranted. I copied pages of earlier argument based on case law. I wrote in circles trying to explain why an illogical argument was illogical.

But, by this afternoon, I had written myself into enough dead-ends and enough spirals to have a large hill of debris. And I’ve learned to trust myself and to trust the writing process enough to know that I’ll be able to climb atop that hill of debris and have the long view into another country: that country where there IS, in fact, a logical way to write this argument. And then, once I had that view from the heights, it took me only an hour or so to create a new outline and to show the evening secretary how to take a bit from here and a piece from there and to shove them into the new outline in order to create, well, actual persuasive prose.

It takes practice and experience to learn to trust the writing process and your own ability to do law. It takes having thrown yourself off the cliff and learned, in Christine Kane’s words, to leap and to trust that the net will appear.

And, even now, I sometimes wonder — as I did this past week when I just couldn’t face the work and had to play hookey, when I journeyed night after night through nightmares about not being able to clean up a mess, about not being able to find my way out of a giant hotel, about being unable to get a class of misfits to settle down, when I played multiple rounds of Mah Jong — if I’ll pull it off. But I’m old, I’ve been doing this for decades, The Law and I are old, if embittered, lovers, and while there may come a day when the courage of men fails, it is not this day, at least it never has been, so far, for me.

May it be so for you.

Picture found here.

You Can’t Start a Fire, Worrying About Your Little World Falling Apart

I think there’s a message there. As my brilliant friend E. says about tattoos, “Go big or go home.”

Spending Privilege

Sunset at the Capitol Med

I was in a strategy session today with some lawyers, all but one of whom are men. This group knows me, has worked with me for years, and its members, I’m honored to say, have a lot of respect for my work. One of the men was describing another party and said, “They’ve got several in-house women lawyers and she [the lawyer being discussed] is one of them.”

I often let that kind of nonsense pass, especially if I think I’m about to have to spend some of my credibility arguing an unpopular point related to the case or our strategy, but, this time, I didn’t.

I winked, smiled (because we have to go out of our way to show that we’re not “humorless,” and that we’re all good friends here) and said, “Women lawyers. As opposed to the real ones.”

There was some uncomfortable shuffling and joking. The youngest male lawyer went out of his way to jump in and say, “No, he’s just pointing that out to show who he’s discussing,” and I smiled, tapped my pen, and moved on. I’d made my point.

On the way home, my driver pulled up the hill and I saw the setting sun turning Columbia gold atop the Capitol. We drove along the Potomac, turned an orangey-gold by the setting sun, and discussed how lovely this city is. I do feel unbelievably blessed to practice law in this city of Equal Justice Under Law.

I realized that I’ve somehow come to a point in my career where I have a bit of privilege to spend. I don’t mean privilege in the sense of being more privileged than the men with whom I work. I mean privileged in the sense of knowing that I can occasionally stand up for women and not pay too high a price, career-wise. I mean that, while there are clearly limits, I have got a certain amount of lee-way based on the cred that I’ve built up over years and years of doing, well, good law.

I think that, for women my age, it’s important to look for these opportunities. Life, as Sara Teasdale said, has loveliness to sell and I, it turns out, have some privilege to spend. I hope to spend it to good advantage.

Picture found here.

How a Witch Spends Her Day Off

I finally filed a big brief yesterday and I have meetings beginning tomorrow (yes, that would be Sunday) for a major hearing starting on Tuesday.

So today was pretty much IT as far as catching a break goes.

And I did, you know that I did, think about spending today at the farmers’ market, grocery store, dry cleaners, mulch-pick-up-place, bank, credit union, hairdresser. I did, you know that I did, think about spending today mulching and weeding my own garden, cutting down the sunflowers gone to seed, deadheading the daisies, harvesting and carefully labeling seeds from the sunflowers, hollyhocks, fox gloves, voodoo lilies. I did, you know that I did, think about doing lots of laundry, filing financial papers, cleaning out the garden shed, sorting and labeling pictures, baking bread and making gazpacho.

But what I did, instead, was go to a garden.

(My original plan was to go to the National Gallery of Art and see an exhibit that I’ve been trying to get to see for months, now. But today was the 50th anniversary of Dr. King’s March on Washington, and most of the bridges and streets that I’d have used were closed. (If I weren’t tired to the point of tears, I’d have gone and stood in that crowd remembering an event that, fifty years ago, at only seven, I was too young to go to. But they didn’t need my weepy Pisces borders there today.))

Gardeners need to see other people’s gardens (OPG), just as cooks need to sometimes eat food cooked by other people, just as lawyers need to sometimes read briefs written by other lawyers, just as poets need to sometimes hear music or see dance. Instead of weeding my own garden today, I headed out to a local garden that I’ve somehow never seen.

I’m so glad that I did. I spent a lot of time wandering around among plantings that gave me ideas and I spent a lot of time sitting on various benches and looking out over vistas that reminded me that I live inside a landbase and that I am a part of a larger whole than the bit that I see everyday.

Where do you go for inspiration?

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I need to ask Landscape Guy what this is.

I need to ask Landscape Guy what this is.

The bees were mad for this.  I don't know what it is.

The bees were mad for this. I don’t know what it is.

Cardoons.  I'm going to see if I can grow these.  I think Victorian Englishmen and women used to eat them.

Cardoons. I’m going to see if I can grow these. I think Victorian Englishmen and women used to eat them.

One thing that I love about cell phone cameras is the ability to capture names of plants.  Wish the black plantings had possessed such good labels.

One thing that I love about cell phone cameras is the ability to capture names of plants. Wish the black plantings had possessed such good labels.

I know we're all supposed to hate lawns -- bad lawns!  bad! -- but if you could have seen the children rolling down the hill here to the pond, you might not hate lawns so much.  One little boy, here from Korea w/ his family, kept rolling down it and laughing that healing little child laughter over and over again.

I know we’re all supposed to hate lawns — bad lawns! bad! — but if you could have seen the children rolling down the hill here to the pond, you might not hate lawns so much. One little boy, here from Korea w/ his family, kept rolling down it and laughing that healing little child laughter over and over again.

Have to ask Landscape Guy what this is.  The underside of the leaves is the loveliest violet.

Have to ask Landscape Guy what this is. The underside of the leaves is the loveliest violet.

Brilliant black garden.

Brilliant black garden.

More black planting.

More black planting.

Have to ask Landscape Guy.  Lovely and large black leaves.

Have to ask Landscape Guy. Lovely and large black leaves.

Too twee? I don't think so, as long as these are hidden in unexpected places.  Waited to take this pic behind a family of little kids who were entranced.

Too twee? I don’t think so, as long as these are hidden in unexpected places. Waited to take this pic behind a family of little kids who were entranced.

Photos by the blogger; if you copy, please link back.

Dead DOMA Potpourri

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* Yesterday, I posted about chef & historian Michael Twitty’s wonderful letter to cooking show personality Paula Deen. He’s posted a follow-up today and it’s every bit as wonderful as yesterday’s. Discussing how he learned about his ancestral history, Twitty says:

Now I know we were enslaved. Slave is an identity, enslaved is a condition.

You should definitely read the whole thing.

And you can listen to Twitty discuss Baltimore’s Afroculinary history and current food deserts here.

* I had serious plans to get to sleep early last night.

Then, Wendy Davis’ filibuster hit Twitter.

I’m an old woman with a once-broken ankle that still swells by the end of the day and demands to be elevated. I need to sip water just to get through a conference call. I can’t imagine standing, without even sitting or leaning on my desk, and with no water or bathroom breaks, for 13 hours.

But Wendy Davis did it.

One fifty-year old woman put her ankles and her back muscles and her vocal cords directly in the gap and said, “You. Shall. Not. Pass.

I can’t do what Wendy Davis did, but I am a Witch and what I can do is work magic. And so I cast a circle and called those whom I call and I did what I do and I sent what I send. And today I wore a scarf with both Coyote and Hare.

And although Rick Perry has called another special session for Monday, at which the abortion restrictions will likely pass, Wendy Davis won an important victory last night.

I think that it’s really important to reward good behavior. You can donate to Wendy Davis’ re-election campaign here.

*BTW, grammar and law nerd that I am, I was fascinated with Motivated Grammar’s discovery about the Texas Rules.

Claire Cardona wrote at the Dallas Morning News’s filibuster liveblog:

“Sen. Tommy Williams, R-The Woodlands, raised a point of order on the filibuster because Davis had help from Sen. Ellis to readjust her back brace. […] but Sen. Judith Zaffirini, D-Laredo, brings up a part in the rules that would permit Davis to sit. […] Zaffirini notes that the rules said ‘may not lean on his desk, his chair, and that note doesn’t apply to Sen. Davis.’”

The rule in question, which I think is Senate Rule 4.01 [PDF, p. 8-9], reads:

“When a member has been recognized and is speaking on a motion to re-refer a bill, he must stand upright at his desk and may not lean thereon (61 S.J. Reg. 1760, 1762 (1969)). When a member has the floor and is speaking on a bill or resolution, he must stand upright at his desk and may not lean or sit on his desk or chair (61 S.J. Reg. 1059 (1969)).”

Of course, we all know what is meant there, that the intended interpretation is gender-neutral he. We see such usages regularly, probably think little of it, and move on. To claim that the use of he in this rule means it doesn’t apply to a woman is crazy, surely.

Or is it? During a filibuster, pedantry is everywhere. I learned but one thing from the time I volunteered at a Model Congress convention: intent and common usage mean little as the parliamentarian sifts through Robert’s Rules of Order to decide which of the fourteen simultaneous objections takes precedence over the rest. Grammatical pedantry, so often out of place, is only fair in this situation.

. . .

I’m no legal expert, and I’m certainly not an expert at what terminological choices are taken as given in the Texas Senate rulebook, so take this discussion with a grain of salt. But Zaffirini’s argument isn’t without merit. I found no declaration at any point in the Senate Rules that he is to be assumed as gender-neutral. In fact, there are eight instances of “his or her” in the rules — one occurring in the first sentence of Rule 4.01, the very rule being debated. If he is understood to be gender-neutral in the third and fourth sentences of Rule 4.01, why is he insufficient in the first?

. . .

It’s all hair-splitting, of course, but it’s a hair that may need to be split. When the issue at hand is so entwined with gender, maybe it’s a good time to examine our assumptions, starting with a little pronoun.

* Dear Xians, Please listen carefully.

Your bible (or, more accurately, your current interpretation of your bible) is not a Get Out of Bigots’ Jail Free card. We all get that your new meme is that you’re being persecuted simply because when you try to persecute other people those other people now fight back and sometimes call you on your bigotry. It’s such a transparent and fifth-grade-style ruse that it’s really amazing you’d even imagine that it would work. Sure, you have First Amendment guarantees of freedom of religion and freedom of speech. You’re free to adopt a religion based upon bigotry and hatred and you’re free to talk about it. But others are also free to adopt other beliefs and to talk about what bigots you are.

Waving your bible around won’t change that. Besides, people who supported slavery waved their bibles around. People who opposed equal rights for women waved (and still wave) their bibles or korans around. Antisemites waved (and still wave) their bibles or korans around. And you know what we call those people today? Bigots.

Obviously, bigots don’t stand up and say, “I hate gays because I’m a bigot, and I get off on hating them, and it helps me to displace my own shadow issues.” No, they always stand up and say that their bigotry is based upon god’s law, or the bible, or whatever.

You’re on the losing end of history, the backwards curve of the arc of the moral universe, but, yes, you have First Amendment rights to hate in the name of your god and to express your hatred.

And we have the right to call you bigots.

Get over it. Be gone, before someone drops a lion on you, too.

* David Whyte writes:

The very shape we make with our bodies when we hold the conversation between the solid ground we stand on and the horizon to which we go, is the complete journey in itself. Our body’s intent, the way we hold that strange and very passionate here to there, far inside us, is the momentary representation of the whole conversation, the whole journey. There is no need to move a single inch. From that place we are ready, once again, to get up and go.

~ Thoughts from Avignon: © David Whyte 2013.

I want to remember this tomorrow morning on the treadmill.

Picture found here.

Or Else, to Alter Plato’s Parable, Into the Yolk and White of the One Shell

I’ve been pulling all-nighters and working like a mad woman on a brief, but, early this morning, aching and taking a hit of coffee the way that I imagine a junkie injects heroin, I came across this picture.

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Dawn was just breaking, rainy and beautifully grey, over Columbia’s District. And for a few deep moments, I remembered what’s real.

All day, at odd moments — in between fights with co-counsel, waging politics, comforting secretaries about misplaced footnotes, encouraging associates who’ve done good work, pushing for better answers from the cases — the image kept returning, tugging at me and saying, “There’s a deeper truth here.”

It may be sleep exhaustion talking, but, to me, this picture is about the deeper reality of all of our lives. Every minute of every day. We’re busy paddling along while, silently, the entire time, deep mystery is just beneath us, inhabiting the very waters that hold us up, swimming in communion with us. It’s visible, if we just peer through the water. And the mystery longs for us to dip our fingers into the icy water and to stroke it.

What WAS that whale thinking about the kayack? Am I the leaf, the blossom, or the bole? (Maybe it’s the reference to blear-eyed wisdom born out of its own despair that calls this poem to mind just now.)

May it be so for you.

/Picture found here.