If the NY sales tax exempts "dramatic or musical art performances," can it deny that exemption to strip club dancers?

The state, arguing that there's no "genuine choreographic dance performance," won in the state's highest court, but only by 4-3. The strip club, Nite Moves, is seeking U.S. Supreme Court review, saying government shouldn't be the judge of the "relative 'value' of the speech."

Once dancing counts as speech within the meaning of freedom of speech, what sense does it make to speak of a "genuine choreographic dance performance"? What is "genuineness" in dance? What does "choregraphic" mean other than "dance"? The (unlinkable) OED defines "choreography" to mean "The art of dancing." The oldest use of the word in English is:

1782   C. Burney Gen. Hist. Music II. 50   In Choregraphy, an art invented about two hundred years ago to delineate the figures and steps of dances.

Would a strip club with a more rigorously planned set of dance moves — less spontaneity — get an exemption?

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"We see the writing the wall, and we have decided that it is best for us to shut down Silent Mail now."

"We knew USG would come after us," says CEO Michael Janke.

It hadn’t been told to provide data to the government, but after Lavabit shut down today rather than be “complicit” with NSA spying, Silent Circle told customers it has killed off Silent Mail rather than risk their privacy....

Silent Circle reportedly had revenue increase 400% month-over-month in July after corporate enterprise customers switched to its services in hopes of avoiding surveillance. The company giddily told Forbes it planned to nearly double staff and significantly increase revenue this year in part thanks to the NSA’s practices coming to light.

I'm sure there's lots of money that could be collected for providing services that are impossible to provide, but that's the catch: The service is impossible to provide.

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"Plans by three Catholic hospital systems in Wisconsin to deny admitting privileges to doctors who perform abortions would 'be in active violation of federal law'..."

"Attorney General J. B. Van Hollen's Department of Justice said in a court filing last week."

Federal law "provides that hospitals accepting federal funds may not discriminate against a physician because that physician has participated in or refused to participate in abortions," the state Justice Department said in its filing in federal court....

There's a new Wisconsin law that requires doctors who perform abortions to have admitting privileges at a hospital with 30 miles of their clinics.  That law is being challenged in federal court, as an undue burden on abortion rights. And now the state law — oriented toward religious (and moral) objections to abortion — is having this side effect of burdening religious hospitals.

Seven doctors who provide abortions in the state lack privileges, and at least four are applying for them at religiously affiliated hospitals, according to their employer, Planned Parenthood of Wisconsin.

Is Planned Parenthood targeting the religious hospitals? Its lawyers observe that many Wisconsin hospitals have religious affiliations, so this is what they law has driven them into doing.

Note that Van Hollen isn't arguing that federal law requires that the abortions be performed in religious hospitals. It doesn't. He's only saying that the hospitals can't refuse admitting privileges to doctors on the ground that they perform abortions elsewhere.

IN THE COMMENTS: MayBee asks some key questions:

What are the admitting privileges for? To admit a patient in the midst of a botched abortion?

Will a hospital that does so be forced, then, to participate in an abortion? Can they ensure the baby will be saved if the mother is brought in during an abortion that is going wrong? Or will the doctor have the "right" to complete the abortion? 

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FireDogLake calls out Kos: "Markos Moulitsas’ Ugly, Reverse-Racist Smear."

Kos: "NSA spying is bad! So is stop and frisk. So is splitting up families by deporting children to countries they’ve never been to and don’t speak the language. So is harassing American muslims. Government overreach is bad. But to act like having the government track who you call is the height of government abuse is a very white privileged view of the privacy issue. But as for Greenwald and Snowden? Seriously, I don’t give two shits."

FDL: "Please, Mr. Moulitsas, tell us, what is the proper, non-privileged, multi-cultural view of the 'privacy issue'? Is it one that stays within the confines of what’s allowed by the Democratic Party? Is it one that is relevant to the war on women, or voting rights, or immigration, but ignores the collapse of the rule of law and the justice system (which is far from a 'white privileged' issue)?"

FDL supplements its posting with a word from our leader, from the days when he was free of the burdens of leadership and leveraging our antagonism for the previous leader:




That video, from August 1, 2007, comes from this speech. Here's the text of the clip. "This Administration," of course, refers to the Bush Administration:

This Administration also puts forward a false choice between the liberties we cherish and the security we demand. I will provide our intelligence and law enforcement agencies with the tools they need to track and take out the terrorists without undermining our Constitution and our freedom.

That means no more illegal wire-tapping of American citizens. No more national security letters to spy on citizens who are not suspected of a crime. No more tracking citizens who do nothing more than protest a misguided war. No more ignoring the law when it is inconvenient. That is not who we are. And it is not what is necessary to defeat the terrorists. The FISA court works. The separation of powers works. Our Constitution works. We will again set an example for the world that the law is not subject to the whims of stubborn rulers, and that justice is not arbitrary.

This Administration acts like violating civil liberties is the way to enhance our security. It is not. There are no short-cuts to protecting America....

I'm sure the Obama Administration can argue that it hasn't lost track of any of these fine abstractions,  and that the Obama who spoke all those words in 2007 simultaneously knew the leftist critique of what he was saying — that law protects those already in power and manipulates the electorate to support the continuation of that power. Rhetoric about reverence for law is the way to acquire power in America, and Obama was great at that.

Both FDL and Kos are doing political theater here. They are both on the left and both attacking Obama for not skewing further left. They seem to be diametrically opposed, but they are not. It looks like FDL is devoted to the rule of law, all the time, on every issue, but Kos is saying the rule of law is a con, and powerful people use it selectively, to protect what they want. But I think both want the rule of law to protect all the things they think matter and then to be applied consistently. FDL is trying to pressure Obama to do that, and Kos is expressing dismay that it is not being done.

The stuff about race is just to stir you up. As usual. Don't take the bait.

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"It’s not the content... We don’t regulate content."

Said Madison's Building Inspection Division Director George Hank about the order to remove an 8-foot depiction of a stripper with one hand on a pole and the other holding a dollar. He says the law bans signs painted on buildings. But aren't there murals painted on all sorts of buildings in Madison.

The drawing is considered an advertising sign rather than an artistic expression because it directly promotes the business, [Hank] said.

Could Hank explain the gigantic head of a manic, mustachio'd chef painted on the wall of Lombardino's restaurant?

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"To adapt H.L. Mencken, nobody ever went broke underestimating the cynicism and self-dealing of the American political class."

"Witness their ad-libbed decision, at the 11th hour and on the basis of no legal authority, to create a special exemption for themselves from the ObamaCare health coverage that everybody else is mandated to buy."

... The lesson for Americans is that Democrats who passed ObamaCare didn't even understand what they were doing to themselves, much less to everyone else.

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"One of the few advantages of dying from Grade 3, Stage IIIC endometrial cancer, recurrent and metastasized to the liver and abdomen..."

"... is that you have time to write your own obituary. (The other advantages are no longer bothering with sunscreen and no longer worrying about your cholesterol.)"

It was a paid obituary, but The New York Times noticed and ran a story about Jane Lotter. That was enough — along with the adorable photo booth pictures of her and the man she married — to make me begin this blog post. As I go along — you have to get to the last third — I see what I think is the real goal of the article: presenting a postcard picture of suicide.

Ms. Lotter took advantage of [Washington state's] Death With Dignity Act.... On July 18, the couple and their two children gathered in the parents’ bedroom. Ms. Lotter asked to keep in her contact lenses, in case a hummingbird came to the feeder [her husband] had hung outside their window.

The last song she heard before pouring powdered barbiturates, provided by hospice officials, into a glass of grape juice was George Gershwin’s “Lullaby.” Then she hugged and kissed them all goodbye, swallowed the drink and, within minutes, lapsed into a coma and died.

Does this picture make you more likely to take the barbiturate way out if you knew you were dying? Would you dissolve the powder in grape juice or some other liquid? Would you play Gershwin's "Lullaby" or something else? Would you be in your own bedroom, hoping to see a hummingbird one last time? Would you include only your closest family — hugging them in a planned sequence — only your most loved one, or would you go alone? As you imagine the theater of a controlled departure — with details corresponding to Lotter's details — are you more favorably disposed to the "Death With Dignity" approach or not? Are you still thinking about yourself, or did you, at some point in reading this paragraph, shift to picturing other people getting enthusiastic about early check-out time and thinking of yourself as one of the taxpayers and insurance buyers — us the living —  who stand to benefit?

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"He blamed his mother for chewing her food too loudly and his sister’s bad accent as part of a plan to drive him mad."

Said the teenager, who killed his parents and sister 46 years ago. He spent 6 years in a mental institution, then changed his last name, studied psychology, and became a professor.

The pony-tailed professor, Dr. James St. James — the head of Millikin University’s psychology department — was outed by a Texas reporter with the Georgetown Advocate, a newspaper based in the town where St. James fatally shot his parents and 17-year-old sister on Aug. 4, 1967.

One student said: "He really is a good guy. I have really fond memories, and I feel sorry for him, because now his life is all turned upside down."

ADDED: More here.

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"This legislation ensures that local communities have a say in the roundabout process..."

"... and ensures that Madison bureaucrats — many of whom will never use the roundabouts they design — cannot trample on the voice of those who will actually navigate these roadway projects."

Republican legislator, quoted in a Treehugger post titled "Roundabout Rage in Wisconsin," which insinuates that conservatives oppose roundabouts because they're French.

Here's the Wikipedia article on roundabouts. Excerpt:

Numerous circular junctions existed before the advent of roundabouts, including the Bath Circus world heritage site completed in 1768, the 1907 Place de l'Étoile around the Arc de Triomphe in Paris, the 1904 Columbus Circle in Manhattan, and several circles within Washington, D.C., however, the operating and entry characteristics of these circles differs considerably from modern roundabouts.... Contrary to modern roundabouts, its centre originally was intended partly as a traffic island for pedestrians....

And here's that Yes tune.

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"Jake Tapper reveals classified information about CIA in Benghazi - should his sources go to prison? Should he?"

A tweet from Glenn Greenwald, part of a collection of tweets at Twitchy under the headline "Jake Tapper: Remember when Rand Paul asked Hillary about gun running in Libya?"

(I invite your comments, which must pass through moderation. Comments must relate to the linked article.)

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"Wealthy gay dad, Barrie Drewitt-Barlow, says he and his civil partner Tony will go to court to force churches to host gay weddings."

Read closely now:

He told the Essex Chronicle that he will take legal action because “I am still not getting what I want”.

A Government Bill legalising gay marriage passed Parliament recently but it included measures to protect churches from being forced to perform same-sex weddings.

"Legalising" — with an "s" not a "z" — that was the giveaway, even before you get to "Parliament." Yes, it's the U.K.

Last year the Church of England warned that the Government’s plans to redefine marriage could trigger legal problems and end the 500-year link between church and state.

They've got an established church over there. We have the separation of church and state, freedom of religion, and freedom of speech, and a legal tradition of defending these rights. And that makes all the difference, in case you are worried that as gay marriage becomes the legal norm, our churches (and other religious organizations) will be required to perform weddings for same-sex couples.

Advice from this American to England: You should end the link between church and state. But this is a tawdry and embarrassing reason to make the change. 

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Supporting gay marriage because one's son is gay.

Something that distinguishes me from Glenn Loury:



Why is it considered persuasive that someone in your family has an interest in one side of a contentious issue? I think it counts against one's position and that you need to be able to defend your side to those who don't have a family member who's implicated.

But — and this isn't discussed in the clip — I do see one thing different about gay rights, which is that because gay people could and did hide from public view for a long time, many people felt comfortable with oppressing them, which gave them all the more reason to hide. That dynamic changed over the past 5 decades or so, and as more and more gay people became visible, more and more people grew uncomfortable oppressing them. That has had a big effect on public opinion, to the point now where the holdouts — the ones who would continue the oppression — have resorted to crying that they themselves are oppressed.

Now, I think good people should not have needed to see the victims of oppression all around them in order to figure out that gay people should not be oppressed, but that increased visibility was an essential part of the political dynamic we have witnessed. Glenn Loury, in that clip, openly admits that the dynamic made him switch sides. I'm glad that happened and is happening in our political culture, but I think the argument based on principle should have been enough.

ADDED: St. Croix connects this to my earlier "seen and unseen" post about abortion. 

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I ask Glenn Loury if he thinks it was a mistake to select the George Zimmerman case to be a racial cause célèbre?

It takes a while to get to the point here, but that's part of what makes it so fascinating. Take a look:



ADDED: Here's a pithy minute of response to the question:

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The verdict in the Bradley Manning case.

From the NYT:

A military judge on Tuesday found Pfc. Bradley Manning not guilty of aiding the enemy, but convicted him of multiple counts of violating the Espionage Act....

Manning pleaded guilty so some other charges, but the government went forward with the more serious charges.

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"Spain's first-ever town councillor with Down Syndrome is set to start work..."

"... in the Spanish city of Valladolid on Monday, but many people with her condition in Spain... many find themselves unable to [vote] after they are declared 'incapacitated' by a judge."

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"A Closer Look at ‘Nonhuman Personhood’ and Animal Welfare."

"Nonhuman Personhood." Not to be confused with human nonpersonhood.

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"Seriously? The mere image of eight women and one man puts you in mind of '... a high-class escort service and an ad for Charlie’s Angels LLP'?"

"Then how about this caption: 'Staci Zaretsky — get a sex-change operation already. You're embarrassing the rest of us!'"

Wow! What a sexist screwup at Above the Law.

I noticed that today, as Zaretsky had to deem somebody the winner of what was an embarrassing-from-the-start caption contest. Here's the photo that was supposed to inspire hilarity:



This reminds me of the blind judging I did back in 2008, when Above the Law had a contest to determine who would replace David Lat as the chief writer at the blog. I criticized one contestant for racism, and the contestant — Elie Mystal, who won — turned out to be black. He thought I'd be embarrassed to have said that, because ha ha he's black:

I’m male. I’m liberal. I’m Catholic (of the “a la carte” variety). I believe in evolution and global warming. I’m happily married. I’m African-American (Althouse. “Racism alert.” What does that even mean? Go jump in a Great Lake)....

Note the similar defense made by Staci Zaretsky, in her apology here:

Old stereotypes persist within the legal profession, and as Above the Law’s sole female editor, even I am guilty of propagating them, for which I sincerely apologize (some of the resulting entries in our recent caption contest were despicable)....

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A much-criticized WaPo headline: "What motivates a lawyer to defend a Tsarnaev, a Castro or a Zimmerman?"

That still runs atop an article by lawprof Abbe Smith which explains the role of the defense lawyer within the criminal justice system. The explanation is familiar to anyone who's considered the topic beyond the shallowest level, but the article appears in the Washington Post because of all the attention to the Zimmerman trial, which explains the presence of the acquitted neighborhood watchman alongside the names of the evil Castro and the accused terrorist Tsarnaev.

The headline drew fire. At Breitbart.com: "the Washington Post outlandishly sought to equate the acquitted Robert [sic] Zimmerman to accused serial rapist Ariel Castro and Boston bombing suspect Dzhokhar Tsarnaev." At Instapundit: "Which one of these things is not like the others?... 'Tsarnaez = Castro = Zimmerman? Why not just throw in a Hitler? That’s usually how the question is posed at cocktail parties.'"

So look at how this article is teased on the front page at WaPo right now:



Quick! Roll out the Kaczynski!

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What if a black widow spider were to nest in a prisoner's dreadlocks?

That happened once. There might also be a fungus hidden in the hair-covered scalp. Weapons might be stowed in the hair, and guards searching for them by hand are afraid of getting cut by razor blades. Moreover, if a long-haired prisoner were to escape, he'd have a ready means of disguise: cut off that hair. These and other reasons were the "compelling interests" that worked for the government in the 11th Circuit Court of Appeals, which rejected a claim for a religious exemption to the no-long-hair policy in prison.

The suit wasn't based on the Constitution's Free Exercise Clause, which doesn't require religious exemptions as long as the government applies the same rule equally. It was based on the Religious Land Use and Institutionalized Persons Act, a federal statute that provides for exemptions. Here's the main U.S. Supreme Court opinion, Cutter v. Wilkinson, rejecting an Establishment Clause challenge to RLUIPA but nudging lower courts to remember "that prison security is a compelling state interest, and that deference is due to institutional officials’ expertise in this area."

The plaintiffs in the 11th Circuit case, Knight v. Thompson, were followers of a Native American religion. Back in 2009, when I used the prison haircut problem for an exam in my Religion and the Constitution course, I presented 5 prisoners, with different situations, intended to highlight the problem of giving special treatment based on religious (as opposed to secular) needs. (Hot links added.)

Prisoner #1 is a musician serving a 2-year sentence who hopes to return to work playing in bands where long hair is traditional.

Prisoner #2 is a young man who believes that his wife loves his long hair. He is hoping that when he is released from prison after serving 3 long years she’ll still want him.

Prisoner #3 was arrested at an anti-war protest called “hair peace” at which he, along with others, chanted “grow your hair for peace.” When a passerby approached him with scissors, a scuffle ensued, and he was arrested for assault. He is serving a 1-year sentence.

Prisoner #4, serving a 5-year sentence, has been a Sikh all his life. For centuries, Sikhs have believed that to cut one’s hair is to reject the love for God and respect for God’s creation that hair symbolizes.

Prisoner #5, also serving a 5-year sentence, decided on his own — before entering prison — to embark on a “spiritual journey” that would be manifested by growing his hair and never cutting it. He isn’t a member of any group, but he was inspired by learning about the Rastafarian movement, which, as he quotes from his readings, is “not a highly organized religion,” but  “a movement and an ideology.” Rastafarians wear their hair in a distinctive uncut way, showing “patience… a journey of the mind, soul and spirituality.”

I asked:

Can the new forcible haircut policy be applied across the board to all 5 prisoners (and any other prisoner that refuses to consent) or will at least one exemption be required? If any exemptions are required, explain which prisoners are entitled to an exemption. If the state wants to make an exception for one or more of the prisoners, will it have to make an exception for more than one? For all of them?

It was very interesting to me to see how students would respond to the 5 different needs for long hair. If I remember correctly, most students found the Sikh's interest so strong that they began there. But then what happens? Do you include all? Just the Rastafarian-inspired man?  None of the others? And does thinking about that make you want to exclude the Sikh too? If your answer is yes, then you may be an 11th Circuit judge.

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"I’m just asking you to wrap your mind around that, wrap your mind around: No prom for Trayvon."

"No high school graduation for Trayvon. No college for Trayvon. No grandkids coming from Trayvon, all because of a law, a law that has prevented the person who shot and killed my son to be held accountable and to pay for his awful crime."

That's terribly sad, but what law? George Zimmerman was acquitted because of the due process law that requires the state to prove guilt beyond a reasonable doubt, and I don't think Trayvon Martin's mother Sybrina Fulton means to attack that law. There's something sickening about seeing this poor woman wheeled about in her tragedy to mouth words of attack on the Stand Your Ground law that had nothing to do with Zimmerman's acquittal. Subjectively, perhaps Ms. Fulton gets satisfaction, but those who are using her should be identified, shamed, and denounced.

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