Law and politics worldwide, etc. (That description should stick for a while)
There is a good amount of english-language commentary on the recent German Constitutional Court ruling allowing, for now, teachers to wear head scarves in the classroom. See NYT here, WaPo here, and FAZ in english, here. For my discussion, go here, a post which has some translations of key passages from the majority opinion. I'll say more about this later. Now I'm off for the weekend to see Anita.
Some leads deserve not to be written. Some deserve to be banished from the collective memory of humankind. You decide which one the lead from this article is, from your talented (?) yet resentful WaPo sports writer, Dave Sheinin.
Yesterday's announcement of the German Constitutional Court's decision that existing law does not allow for a prohibition on head scarves worn by teachers in the classroom has not won the Court many friends, but it does seem to have had the desired effect: increasing public dialogue about the issue.
In a 5 to 3 decision, the Constitutional Court divided primarily on the question of whether existing law allowed school authorities to prohibit muslim teachers from wearing headscarves in the classroom. According to the opinion, which you can read here (see also the press release, here) a thirty-year old German citizen (originally from Afghanistan) had successfully completed all the formal requirements for becoming a public school teacher in Baden-Wuerttemburg, a large state in the southeastern corner of Germany. She was nonetheless denied a post because, in the judgment of the Stuttgart school authorities, her refusal to remove her head scarf was incompatible with the rights of school children, the rights of parents, and the requirement that the state be neutral with respect to religion and "world views" in general. The school authorities argued that students had few opportunities to change teachers and hence were required to "come to terms with" the religious views that the head scarf represents; muslim students might also feel compelled to wear head scarves or to comport themselves in a certain way with respect to their teacher's beliefs, and this might work against the "pedagogical task of the school" with respect to their "integration." The teacher-to-be argued that the state's refusal to employ her amounted to discrimination based on her religious beliefs, which is forbidden according to Article 33 of the basic law: (3) Neither the enjoyment of civil and political rights, nor eligibility for public office, nor rights acquired in the public service shall be dependent upon religious affiliation. No one may be disadvantaged by reason of adherence or nonadherence to a particular religious denomination or philosophical creed.2) Every German shall be equally eligible for any public office according to his aptitude, qualifications, and professional achievements.
She also referred to the more general equality protections and protections of religious freedom from Articles 1 - 4 of the Basic Law. You can read the text of Germany's Basic Law here (and this site is also my source for the above translation of the sections from Article 33).
The majority view on the Constitutional Court was that mere administrative prohibition of head scarves and refusal to employ those who wish to wear them is contrary to Article 33 as well as general rights of conscience and equal treatment, but that the state could reasonably (and permissibly) conclude that there are sufficient grounds for such a prohibition.
It seems that the Court saw itself in the position of requiring a wider political debate on these issues. Probably Cass Sunstein's "democratic dialogue enforcing" role for courts was the kind of thing that they were aiming at here. Sunstein is not cited, but he might as well have been. In Sunstein's view, constitutional courts act legitimately when they require the legislature to engage in deliberation before rights claims can be rejected by either the legislature itself or by administrative bodies that act under its authority. The German court made explicit reference to the desirability of a broader social and political discussion on the question of religious plurality in the classroom. Here are some key passages from paragraphs 64, 65, and 68 of the opinion, in my rough translation: The Constitution reserves to Parliament the restriction of basic rights-related freedoms and the balancing of colliding basic rights, in order to determine that decisions that have such significance emerge from a process that [1] allows the public an opportunity to form and to express its positions, as well as [2] requires the representatives of the people to clarify the necessity and extent of actions that hem in basic rights [Citation omitted]The social changes that are accompanied by increased religious plurality can provide an occasion for a new specification of the permissible amount of religious references in school. . . .The religious diversity that has grown up in society is mirrored [in schools] in a particularly clear manner. The school is the place where different religious conceptions are forced to meet each other and where this fact of being together in the same space has particularly sensitive effects. An ability to live with each other in a tolerant fashion could be practiced, through education, in a particularly effective manner. This would not necessarily require the denial of one's own convictions; instead, it could provide an opportunity for a recognition and strengthening of one's own positions and an opportunity for reciprocal tolerance. . . . Thus, there could be reasons why one would open up schools to increasing religious diversity and use it as a means for practice in reciprocal tolerance. . . .Nonetheless, this development that we have just described is also combined with a greater potential for conflict in the schools. Therefore, there could be reasons for affording a stricter interpretation of the state's neutrality-related duties in the schools by giving those duties a meaning that places emphasis on more distance and on keeping students away from religious references that emerge from the external appearance of certain teachers in order to avoid, prospectively, conflicts with students, parents, or other teachers. . . .
Der mit zunehmender religiöser Pluralität verbundene gesellschaftliche Wandel kann Anlass zu einer Neubestimmung des zulässigen Ausmaßes religiöser Bezüge in der Schule sein. . . .Die gewachsene religiöse Vielfalt in der Gesellschaft spiegelt sich hier besonders deutlich wider. Die Schule ist der Ort, an dem unterschiedliche religiöse Auffassungen unausweichlich aufeinander treffen und wo sich dieses Nebeneinander in besonders empfindlicher Weise auswirkt. Ein tolerantes Miteinander mit Andersgesinnten könnte hier am nachhaltigsten durch Erziehung geübt werden. Dies müsste nicht die Verleugnung der eigenen Überzeugung bedeuten, sondern böte die Chance zur Erkenntnis und Festigung des eigenen Standpunkts und zu einer gegenseitigen Toleranz. . . . Es ließen sich deshalb Gründe dafür anführen, die zunehmende religiöse Vielfalt in der Schule aufzunehmen und als Mittel für die Einübung von gegenseitiger Toleranz zu nutzen. . . . Andererseits ist die beschriebene Entwicklung auch mit einem größeren Potenzial möglicher Konflikte in der Schule verbunden. Es mag deshalb auch gute Gründe dafür geben, der staatlichen Neutralitätspflicht im schulischen Bereich eine striktere und mehr als bisher distanzierende Bedeutung beizumessen und demgemäß auch durch das äußere Erscheinungsbild einer Lehrkraft vermittelte religiöse Bezüge von den Schülern grundsätzlich fern zu halten, um Konflikte mit Schülern, Eltern oder anderen Lehrkräften von vornherein zu vermeiden.
Nach der Verfassung sind die Einschränkung von grundrechtlichen Freiheiten und der Ausgleich zwischen kollidierenden Grundrechten aber dem Parlament vorbehalten, um sicherzustellen, dass Entscheidungen von solcher Tragweite aus einem Verfahren hervorgehen, das der Öffentlichkeit Gelegenheit bietet, ihre Auffassungen auszubilden und zu vertreten, und die Volksvertretung dazu anhält, Notwendigkeit und Ausmaß von Grundrechtseingriffen in öffentlicher Debatte zu klären.
The dissenters disagreed that existing law -- particular the existing law relating to the status of civil servants -- did not allow for administrative refusals to employ individuals who refused to take an outwardly neutral stance toward religious belief. They argued that civil servants are not allowed to claim the same kinds of individual rights protections that private individuals can claim; the special situation of civil servants as administrative agents of the "generality" of the people requires them to give up some individual rights claims. This requirement is fully expressed in existing legal standards for civil servant behavior. The dissent argued that school authorities have sufficient discretion under existing law to make rules within their realm of responsibility -- here, rules that can be considered as directed toward the end of keeping schools free of conflict. The dissenters also note that a law may not be able to do justice to the individual cases that arise on the border between administrative discretion and individual religious freedom. In addition, the state legislature of Baden-Wuerttemberg had refused to pass a law regulating teachers' head scarves -- probably because the far-right Republican Party had proposed the law.
Today the papers are filled with stories about school authorities and politicians from all parties contemplating legislative action. Members of the SPD (here and here), CDU (here) and CSU (here and here) have all argued that legal prohibitions are now on the table. The teachers union is not happy with the ruling, according to this article in the Sueddeutsche Zeitung, which notes that speakers for the union favor a clear legal standard in order to reduce conflicts with parents. Legislative responses are likely throughout Germany, although the Sueddeutsche reports that leaders in some eastern states have said that they are not likely to act because the issue has not arisen in their schools, which draw on a population with comparatively fewer minority group members. The Greens and the FDP were happy with the court's ruling: the FDP, apparently, would welcome a prohibition, while the Green party position is not clear to me yet.
Reader Dan Gordon called my attention to the ruling, and he also notes that the question of the status of the symbols here is important. In French law, apparently, patriotic symbols have an established place, so the question of the significance of symbols is crucial in the French discussion of such issues. German law is cognizant of the power of symbols (the swastika is banned, for example), and the possibility that the scarf could be seen by students as a symbol of state endorsement of religion is at the forefront of the widespread political push to ban it in the classroom. The Court did get expert testimony as to the meaning of the head scarf, and in general the testimony seemed to indicate that it has a plural meaning (it can be seen as an expression of individual identity along a variety of dimensions). Appropriately enough, given the ruling, the court is also very interested in the head scarf as an opportunity for cross-cultural dialogue and cross-cultural tolerance and understanding. But my impression of the debate is that most politicians seem to take the view that the head scarf can and should be banned in order to safeguard state neutrality in matters of religion (sort of like Justice O'Connor's "endorsement" views on religious symbols). Those on the left want to safeguard neutrality as such, and those on the right (like the CSU) also want to safeguard a specifically non-muslim state position so that the state can at least be seen as not rejecting catholicism. The Catholic Church has been mum, as far as I have read.
See my earlier posts on related issues here and here.
The CSU website reports that Bavarians voted to change their constitution in several ways, including eliminating unfunded mandates from the state government directed at counties and towns, lowering the right to be a candidate for office from 21 to 18 (same as age for federal offices), and clarifying the scope of constitutional protections for children. For an overview of the process of popular lawmaking in Bavaria, go to the Bayerisches Rundfunk page here.
Didn't watch the CA debate. Steve Smith shows his Libra-esque balance by praising McClintock's performance. Dan Weintraub is unwilling to say that anyone did particularly well. Robert Tagordia has got some interesting analysis as well.
If I were living in California, every time I heard Arnold Schwarzenegger say the word "special interest" I would find another California resident friend to call up to beg them to vote for anyone but him. That might be a good opportunity to renew some old friendships, I suppose, if in an instrumental fashion.
MORE: And Will Vehrs expresses his preference for either McClintock or Camejo (who seems to be getting even less coverage than Huffington).
The German Constitutional Court punted on the issue of whether teachers can be forbidden from wearing head scarves in the classroom as an expression of religous faith. The Court seems to have said that head scarves cannot be forbidden absent a law to that effect, but left open the possibility that such a law would be found constitutional. There was a (relatively rare) dissent in the case which took the majority to task for avoiding the issues. Read the International Herald Tribune article here, Reuters here, and this wide-ranging article from the BBC. See also this article in the Sueddeutsche Zeitung. If you want to read the full opinion, it's here. I'll have some more to say about this later. My post on the court's earlier ruling in favor of a woman who was fired for wearing a head scarf in private employment as a salesperson in a department store is here.
To the Dutch speaker looking for "air-hostess sex" on Google, I don't have what you're looking for. Sorry! But I have a link to an Air India air hostess sex discrimination suit story, here. Sex is really not a topic of conversation here all that often, to be honest. Sorry to disappoint you. I did have a somewhat risky link to an article on orangutan response to pornography a while back, but the link was to a German article that I didn't want to translate, and I wasn't really sure that I should have posted on that anyway. I'd like to think that I've carved out a little corner of the web where porn and sex are usually pretty far from people's minds, even when they involve air hostesses. Next semester, when I'm teaching civil liberties again, I may provide a few thoughts on such burning topics as the regulation of pornography, obscenity, nude dancing (versus dancing with pasties and a G-string), collective nude football watching in a big stadium (from one of Scalia's spicier opinions if I remember correctly), and the like. But you'll have to wait for that, and I'm really not sure that I want to post on all that stuff anyway. So if you've come here looking for sexy topics, you'll have to go elsewhere. The most exciting and exotic thing I've posted about this week is probably German dentist advertising, below. Well, I've got a link to the "playboy puggies" below as well, which I suppose is kind of exotic in the same way that out-of-the-way places in Nebraska are exotic. Oh well.
Jim at OTB links to this piece from Stuart Taylor on judges and elections.
Taylor is unclear on whether or not the Supreme Court should have intervened in the 2000 election controversy. On the one hand, Taylor likes the idea that equal protection should be safeguarded by federal courts during presidential elections, and he believes that voters in Florida were not afforded equal protection by the FL Supreme Court's actions. On the other hand, Taylor thinks that the Supremes should have left it up to Congress to figure out what to do with the slates of electors. (How courageous to say that now!) And since he can't decide which is better -- and he thinks that federal courts are extending the equal protection rationale that he finds so tempting in Bush v. Gore -- he wishes that the Supreme Court somehow could "strike a blow against government by judiciary while putting the Bush v. Gore unpleasantness behind them. "
Here's a hint: you can't have both, Mr. Taylor. Bush v. Gore was an instance of government by judiciary. And as the Good Book says, approximately, by their fruits shall you know them. It is absolutely unprincipled to decry judicial activism and praise Bush v. Gore at the same time. You've got to chose.
It seems to me perfectly reasonable to criticize all judicial activism, or to frankly declare that you only want conservative activist decisions (either in terms of the principles applied or the results). But if you don't see that conservative activism is also quite reasonably described as "judicial tyranny," then you've got to go back to school again and take "LIFE 101: Listening to People You Disagree With."
I'm off to bed soon, but before I go: from my sitemeter reports, I've noticed that the hits from the Justice Department seem to have dropped off a bit, but that I do have at least one regular reader from Enron, where, apparently, there are still a few job openings if anyone is interested (see here). Excellent.
Welcome! This is a big tent, so make yourself at home and tell me what you think! And if you're from the Justice Department, I'd love to know what you think of my occasionally intemperate rants -- for a variety of reasons, as you can imagine. . .
Diebold apparently tries to shut down its critics. If true, not good. I don't think that in the wake of recent ballot controversies, any of us should give a flying flip about Diebold's copyright claims. If their voting machines are crappy, then we've got a real problem. Can anyone say "Diebold = an example of a 'faction' from Madison's Federalist #10?" Again, if Diebold is trying to shut down its critics by waving the copyright litigation flag, then it is engaging in unconscionable behavior. Shame on them. If you're a Diebold investor, I'd say: run for the hills, both because it's the right thing to do and because they're (hopefully) going to crash and burn on this one.
See also slashdot, here, and this salon article, the full text of which I can't read because I'm not a subscriber, but you might be. See also this article in the Kansas City Star.
There's some sympathetic cringing going on over at Balasubramania's Mania, here, in reaction to the light atmosphere in the 9th Circuit yesterday.
Maybe my sense of humor is way off, but I generally thought that the judicial jokes went off pretty well. If Judge Kozinski always quips thusly -- "I thought you would say that" -- then it might be a little tedious. On the other hand, it's good to have a few trademark quips, and based on yesterday's video it seems to me that Judge Kozinski is good at being funny partly because he is so smart. In addition, the humor in the courtroom is often dependent on the jokes being at the lawyers' expense, so, since I don't think that I'll ever be an appellate lawyer, I can safely chuckle from the sidelines and enjoy the spectacle of it all.
Most of the lawyers who argued in the 9th Circuit yesterday seemed to be pretty good at rolling with the punches and even getting off a few zingers themselves. Woe to the lawyer who misjudges the situation, however. If you have never heard the oral argument from Roe v. Wade, check it out now, in particular the beginning of Texas's argument, about 35 minutes in:CHIEF JUSTICE BURGER: Thank you, Mrs. Weddington. Mr. Floyd?
MR. FLOYD: Mr. Chief Justice, may it please the Court: It's an old joke, but when a man argues against two beautiful ladies like this, they are going to have the last word.
There's no annotation in the transcript for annoyed and embarrassing silence (I think that Peter Irons described the
Court's reactions along these lines in his audio collection).
The transcript is here, and the oral argument can be accessed here, both from Northwestern's Oyez site.
Greg Goelzhauser attempts to explain why students don't remember what you think they should. In short, it's because you expect too much. Greg's claims apply to law school in particular, but there's no reason why they should hold only there:[P]eople tend to unjustifiably attribute the level of knowledge they possess to others. . . .a specialized knowledge in a particular area would only serve to worsen this baseline error. . . .In law school, the professor is often an expert in the field being taught. Moreover, what is often being taught in the classroom are the basics of any given subject. Since these basics are so obvious to the professor, once they are taught the professor might unknowingly attribute his or her baseline to the students.
Let me suggest another explanation that's more simple but more gratifying for me, at least, in a sense. Because it's hard to learn stuff, students don't always do it when they should. They probably also estimate that the risk of being called on in class is low enough in any given class to justify drinking a beer or going to the gym (or studying something else) instead of trying to figure out whatever it was that you tried to tell them about. In addition -- and perversely -- asking for clarification is often assumed by students to be a sign of inability rather than a sign of curiousity or effort, and (sadly) it's probably not always the case that clarification questions are welcomed, explicitly, in the classroom. In graduate school I remember having the distinct impression that there was a certain baseline knowledge that was required from me that I didn't happen to possess already, so silence was a safe option -- I could always portray my ignorance as a temporary phenomenon on those days on which I did happen to lose the professorial selection game. . .
So, I know the tricks already. Get back to your lecture notes, folks!
Especially if you're in my classes.
I love to call on people.
And sometimes I'll make you write out answers to questions I think you should have already thought about.
THEN THERE WILL BE NO ESCAPE. [cue evil laugh] HA HA HA HA HA.
MORE: Steven and Jim are on my side on this one. Steven even says:Teaching at a university is sometime like psyops.
I'm afraid that Bailey might never forgive us if we try to put him in one of these. Check out the "Playboy Puggies" in particular for some really bad taste. (Link from Anita)
Check out the "interactive city map" of Berlin, here. My host family lived in this neighborhood.
Ah, memories. . .
The three-judge panel decision in Southwest Voter was overturned today after en banc review. Here's the opinion (PDF file). See Larry Solum's thoughts here and here, and Rick Hasen's here.
If nothing else, this controversy showed that Bush v. Gore is lying around like a set mouse trap, ready to be sprung by courts that are inclined to do so. In my view, this is only fitting in a cosmic sort of way. I am waiting for the pro-Bush (and pro-Bush) commentators to admit that the decision was a mistake -- a judicially "activist" decision of a high order -- and that the federal courts now are likely to be involved in election disputes in a way nearly unimaginable in 1999 except in Robert Bork's dreary nightmares. I'm not so sure that I think that courts shouldn't get involved in elections, but I'm pretty sure that people who liked Bush v. Gore should at least admit that they're in danger of hypocrisy if they only like the involvement when their candidates win big.
After watching the oral arguments yesterday, I am grateful to the three-judge panel for giving the 9th Circuit an excuse to bring cameras into the courtroom. And once the cameras were allowed in, lo! and behold, instead of finding judges defiantly dressed in "re-elect Gore-Lieberman" or "Dean in 2004" campaign outfits, we found serious and intelligent men and women trying hard to probe the outer limits of very difficult legal questions. Most of them had already made up their minds, to be sure, and as Rick Hasen notes, a close reading of the opinion shows that the unanimous opinion masks internal divisions that may (perhaps) track ideological preference. Still, perhaps it is a lot easier to paint judges in a poor light when they're hidden from public view.
One additional result of the oral arguments, however, is that attentive viewers might learn to be even more skeptical about the supposedly neutral effort to "distinguish" cases from one another, as in, the attempt to argue that Bush v. Gore is really only about the unique situation of a state-wide court-ordered hand recount of ballots in a disputed presidential election with deadlines looming. An hour into the oral argument, in questioning Charles Diamond (Costa's lawyer, who was doing an admirable job, in my opinion) Judge Kozinski said:I know it can be distinguished. It was also in St. Louis, and the guy's name was Roberts rather than Costa. I know it can be distinguished.
See the oral argument from c-span, here (realplayer). It might be a meaningless aside from Judge Kozinski, to be sure, but I think that his statement here is evidence for the proposition that judges can feel justified in seeing a lot of discretion in how broad a view of principles they are required to find based on precedent -- and it's not just liberal judges who see that discretion, either.
In case you missed it: German dentists now have an easier time of advertising in the yellow pages and in the internet. Earlier this month, the German Constitutional Court [Bundesverfassungsgericht] agreed with two dentists who sought to overturn two fines (4000 and 1500 Marks) meted by the "professional district court for dentistry" (Bezirksberufsgericht fuer Zahnaerzte) for "advertising that is unworthy of the profession." The decision is here (in German). The internet advertising in question was apparently a colorful home page with personal information on the dentists (including hobbies), depictions of the tools used by the dentists, descriptions of various procedures, and the claim that "regional dialects" are spoken in this particular practice. The state-level professional dentistry court sided with the lower court and ruled that the dentists included elements in their advertising that had nothing to do with dentistry itself but rather aimed at encouraging "sympathetic emotions" in prospective clients. The yellow pages advertising listed the practices under the heading "Dentists: implantology," a category that is apparently not fully recognized by the professional organizations.
In overturning these fines, the German Constitutional Court is self-consciously defending the internet as a medium worthy of constitutional expression and setting reasoned constitutional limits on the professional associations' ability to regulate their members' advertising activities. As far as I understand these limits, they consist on the one hand of a respect for the freedom of individuals to pursue their line of work (Berufsfreiheit) even when professional norms may be bent in the process, and, on the other, the requirement that professional associations provide reasoned justifications for their restrictions on members' advertising activities.
Earlier this year, the German Constitutional Court ruled in a similar case concerning image advertising by a lawyer, and an internet ad for a private clinic.
This line of cases is interesting for several reasons. If one were thinking about the court's constituency, for example, one might think that the court is alienating established professional organizations and appealing to less tradition-minded members of the professions. To the extent that German professional regulation is seen to be restrictive of economic development, perhaps one could argue that the Court is extending protection to individuals who are likely to challenge the professional organizations and thus more likely to bring creative energies to the German economy. In addition, I would be interested to know if there is a european unity backdrop to these questions (I have no idea if there is; it's just a thought). Finally, the fact that these cases all involve commercial advertising means that the German court is following a trajectory that U.S. constitutional law has also followed: loosening professional restraints on their members in order to protect free speech values. I don't know a lot about these kinds of cases in U.S. law, so I don't want to make too much out of the comparison, but perhaps it's worth some reflection why this kind of development might occur in both U.S. and German constitutional law. The German courts do not cite U.S. case law in any of these opinions, so I'm not arguing that there is a direct influence. Still, a cynic might argue that there is a race to the bottom in professional standards -- or, perhaps, less a race than a gradual, international erosion.
Somebody just wandered into my blog by doing a Google search for "air hostess" and "picture". . .from Google's Turkish page. I made the top 30 hits (second page) (in Turkish: 21 - 40 arasý sonuçlar). I doubt that my post on Indian Air hostesses' sex equality suit -- on the same page as a link to a story about a fundamentalist Christian who refused to have his picture taken for an ID because he believed that such pictures are "idolatrous and graven images" -- satisfied this particular reader, though. . .
Rick Hasen has some excellent commentary on the meaning of Bush v. Gore, here, and on how recent election law controversies mesh with the (failed) Estrada nomination to show how ideology in judges matters. ["Ideology in judges?" Argh. Better: "how judicial ideology matters."]
The Curmudgeonly Clerk wonders about the depth of our commitment to Afghanistan and whether or not we have "bitten off more than we can chew."
Larry Solum gives us Coase for beginners, as well as a month's worth of interesting links and analysis.
At Balasubramania's Mania, copyright questions are in the air.
And the effects of Isabell are still felt in my life -- Anita is without power and might not get it back in time for my visit next weekend, even though downtown Bethesda got reconnected today -- it's appropriate to note that Tony is complaining about Pepco and getting ready to take a chainsaw to the suburban treescape (in thought, at least, and it's a good idea), Dan has a bunch of posts on what it was like in his neighborhood (and Thomas has one from Friday), while Max has some unkind words for Comcast -- fully deserved, in my experience. Jim at OTB would rather have power than (more?) TV-less time with his friends and family.
