austindefender

It’s kind of funny, but also kind of scary, coming across people who have very strong opinions about things they know nothing about.

Case in point: Blue Collar Muse.

It is difficult to conceive of more ignorant, stupid and asinine judges than those in this story. It is also difficult to believe any of them are men or parents.

A man photographed a 16 year old girl, without her knowledge or permission, in a retail store. The photo was a type of soft core porn filming known as “up-skirt” shots. He was properly arrested and charged with a felony!  The court, however, found he had done nothing wrong since the 16 year old should know wearing a skirt in public was granting permission for someone to photograph her in a humiliating and pornographic manner.

I keep running this story over and over in my head waiting for the lightning strike that will cause it to all make sense. I’ve given up. It doesn’t make sense and it’s never going to. Probably because I went to seminary and learned right from wrong and not law school where they evidently teach how to give Rights to those doing wrong.

Muse is right that the story will never make sense to him; at least not until he reads the opinion, or the law.

The law says it’s a crime to use equipment to look at a person “when the person viewed is in a place where there is a right to a reasonable expectation of privacy.”

What they teach in law school, contrary to what Muse thinks, is that laws mean what they say – not what you wish they said, or think they should say.

When judges interpret laws, they assume the legislature knows the meaning of the words it uses, and that it intends the law to mean what it actually says.

Applying those principles to the case at hand leads to the conclusion that – no matter how reprehensible the defendant’s conduct – he did not violate this law.

Judicial activism, judicial review and other black robed ridiculousness we rail against are embodied in this tale of legal lunacy. It’s unclear if there are any precedents for the court’s failure to uphold the Constitutional rights of this young woman. It’s unclear if the court might be able to unconstitutionally appeal to some foreign law or precedent in support of their error.

It’s “unclear” to Muse because he doesn’t actually know what he’s talking about.

He is, like too many other people, happier being ignorant and outraged, than in knowing the facts.

Almost 16 years ago, my wife and I were married in another state.  Along with renting a tux, buying a ring, and nodding my head whenever my wife asked me anything about the wedding, I had to go obtain a license.  I still have that piece of paper, somewhere, but in the last 16 years, I can’t remember anyone, anywhere, ever asking for it.

I got to thinking about it in reference to “gay marriage.”

What is marriage, anyway?  Why do you need a license for it?

If you google “unlicensed marriage,” one of the first results will be a court case out of Washington.  It was a criminal case where the issue was “spousal privilege” – the rule that a spouse can’t be made to testify against the other.  The couple, in that case, had never gotten a license, so the issue was whether they were married.

The court ruled that they were.

In the eyes of the common law, marriage is a civil contract.  As Blackstone put it, the law treats marriage “as it does all other contracts: allowing it to be good and
valid in all cases, where the parties at the time of making it were, in the
first place, willing to contract; secondly, able to contract; and, lastly,
actually did contract.

Which makes a certain amount of sense, when you think about it.  Marriage existed before Massachussets, or Texas, or the United States.  Marriage existed before Christianity, before law, and, for that matter, before history.

I’d always kind of thought, unconsciously, that having a license was what made you married.  But in Washington, at least, marrying without a license may be illegal.  But the fact you didn’t get a license doesn’t make you unmarried.

I guess the analogy is to fishing.  Fishing without a license may be illegal.  But you’re still fishing, whether you have the license or not.

Anyway, it makes me wonder.  Do gays really need anyone’s permission to marry?

The other day a prosecutor told me that a pretrial writ of habeas corpus couldn’t be used to attack the constitutionality of a statute.

I knew he was wrong, but I didn’t have a case that said so.  So this morning I searched “pretrial writ of habeas corpus constitutionality,” and the first case I found was “Ex Parte Ellis.”  And the second.  And 4th.  And the 8th 9th and 10th.  In fact, out of the first ten results, Ellis was six of them.

If you don’t know (and why would you?) Ellis is the DeLay case.  The one where the court of appeals said checks are not “funds” for the purposes of the money laundering statute – even though that issue was not actually before them.  Since Delay and assoc.’s used checks, not cash, to launder their funds… well, you get the rest.

What’s amazing – well, there’s lots of amazing things about the DeLay case – but ONE amazing thing is the vast ocean of judicial ink that’s been poured out for him.  The Court of Criminal Appeals was able to dispense with the case of a tweeker who got 85 years in prison for a bucket of toilet water in the matter of a few paragraphs.  But DeLay & friends have consumed approximately a bajillion hours of judicial attention… and their case hasn’t even gone to trial yet.

For more, read “So THAT’s why Tom DeLay isn’t in prison yet.” (Everyone is equal… but some are more equal than others.)