Civil Procedure and Gay Marriage; Contracts and Missouri Football Strike; Torts and The Clock Boy; Property and ISIS; Criminal Law and Marijuana

Thanksgiving Break is hard to study over so I decided to blog and call it studying. This writing is not refined so please only read if you have time on your hands. I am not going to pinpoint cite anything because this is not an exercise in the proper legal research which I also tried to learn this semester.

A Civil Un-Procedural Ruling on Same-Sex Marriage: My Dissent to the U.S. Supreme Court June 2015 Ruling in Obergefell v. Hodges

            I am against the manner in which the U.S. Supreme Court superseded legislative channels to make a binding change in the definition of marriage. Secondly, I likely would use my democratic right to vote against legalization of opposite sex marriage and I would choose representatives with the same values. I am happy that others also have the right to vote as their conscious dictates. My vote would be based on religious doctrine and my views on what is effective for economic and societal progress.

Obergefell v. Hodges is a consolidated case which originally was filed by several petitioners in varying Federal District Courts of different states. The petitioners were all claiming that their rights under the U.S. Constitution's Fourteenth Amendment were being violated by state governments which were either denying their right to marry or states that were denying recognition of the petitioner’s lawful marriage which occurred in a different state. The case was filed in federal court, as opposed to state court, because it turned on federal question subject-matter jurisdiction under the Fourteenth Amendment Due Process and Equal Protection Clause’s. The petitioners won their cases in District Court and the respondents appealed to the Sixth Circuit Court of Appeals where the cases were overturned and petitioners appealed to the U.S. Supreme Court. The Supreme Court found in favor of petitioners by a count of 5-4 which provided a binding precedent upon all United States courts to decide similar in future cases.

It is wrong that five lawyers made final a decision which a majority of states had not embraced and which is still in public argument. It is against democratic principles to decide something so fundamental in such a way. “We the People” does not mean that the judiciary can make the law. The judiciary’s job is to interpret the law. The people of this nation are what make it great, not the whims about what is best for the future coming from five persons. Sometimes democratic change takes time but this is fundamentally what makes America great and prevents tyranny. Strong progress in making statutory changes had been made but were thrown out the door with this judicial intervention.

Largely at debate is the interpretation of the word “liberty” under the Fourteenth Amendment. The Court can use “Substantive Due Process” which typically means protecting liberties which are deeply rooted in history and tradition. This standard protects us from the ebb and flow issues which arise throughout history and keep us grounded. Hot topics are left to the people and their elected congress. With this ruling, the justices essentially laughed in the face of all the preceding justices, legislatures, and citizens of this country since the passing of the Fourteenth Amendment and laude their wisdom and foresight above those who came before.

The majority opinion appeals too much to emotion. A surprisingly large portion of its reasoning is that one of the petitioner’s served his country in Afghanistan and deserves to be treated better. While honorable in theory, it is very bad logic.

It recognizes but does not give solutions to protecting religious freedom to deny gay marriages. The constitution does not protect marriage in the same way that Mormon doctrine does, and that is good, but this decision does not provide assurance to religious groups that their rights will not be impinged upon.

I know that individuals are born with a particular sexual disposition. It is good for society to recognize and accept this. It also is not scientifically disputable that human evolution requires procreation. Civilization has found success in protecting an opposite sex marriage because millennia of human existence has shown it is the foundation to human growth and well-being. I do not believe allowing opposite sex marriages creates a potential economic burden, solely because biologically it is an anomaly, but it fundamentally changes the definition of marriage and I do believe that marriage is economically critical. It frustrates me, even in opposite sex marriages, that the fundamental purpose behind marriage is not the procreation and rearing of children.  

Another factor is states enforcing different definitions of marriage. I concede varying rights of marriage are more difficult to manage then Colorado allowing marijuana use and Utah not. Because opposite sex marriage is a major twist to the fundamental definition of marriage (unlike interracial marriage laws, polygamy laws, or laws of coverture which are less drastic) it is possibly necessary that the states be united in application.

Destructor of Property and Property Law: ISIS

            First semester law classes in Nebraska unfortunately do not discuss possession by aggression. The seizing of public lands, oil fields, and cultural heritage sites by guns is not expected. ISIS claims all Muslims in the world are under its rule and is seeking to expand its boundaries which I honestly don’t know if it’s been done since Germany in World War 2 (Israel being potentially another example, I guess the Soviets too).

            One of the most saddening things ISIS has done is destroy Shia and Christian religious shrines, mosques, and churches. Many of these buildings date as far back as 1300 AD. Ancient cities which have cultural importance to any human being have been destroyed without regard to their historical value. Money can’t put a price on the real property or the chattels. The property looted by underpaid ISIS fighters and sold on black markets are examples of thievery. The destruction of world heritage sites and items is against the Hague Convention. Syrian, Turkish, and Iraqi governments agreed to the terms of the Hague Conventions protection of UNESCO sites but they are doing a horrible job of enforcing the laws under the Hague Convention.

            American Law believes that property rights come from God and are a natural right. Sharia Law also respects individual property rights and believes that God delegates land to humanity. In both systems governments are allowed to tax property. The amount of the tax varies on the social programs of the society. Ownership deeds likely aren’t to change so long as individuals swear allegiance to the theocratic Islamic State but even land held in Fee Simple Absolute can be confiscated for military needs or the eminent domain needs of the caliphate. Some regions in Iraq, which already are under ISIS rule, still receive payment from the Iraqi government because persons are Iraqi government employees. This also amounts to stolen property as ISIS garnishes the pensions and salaries of these employees.

The Boy with the Clock’s $15 Million Tort Claim

            Ahmed Mohamed is demanding $15 million from the City of Irving for his treatment during and after the incident where he brought a homemade clock to school, his teacher claimed it was a bomb, and he was later arrested. His harms included a lengthy interrogation, demeaning treatment, defamation by the media, and ill effects to his family members at work and in general. His family has since moved to Qatar but claims they will return to Texas when they feel safe.

            The sovereign immunity of the government officials will likely not be available because 42 U.S.C § 1983 states that individuals acting in their government capacity and depriving citizens of their constitutional rights are not immune. If the officials were following city and school protocol then the action attaches to those entities as well. One flaw in Ahmend’s demand is that he points out that officials didn’t follow protocol, which would absolve the city and school under § 1983.   

            While the demand letter doesn’t state any tort claims which I am familiar with it does state grievances arising under the Fourth Amendment (search and seizure protection) and the 1964 Civil Rights Act. Essentially a duty was owed by the police, mayor, and school officials. Ahmed believes their actions breached that duty. The breach of those duties were the cause-in-fact of his and his family’s injury and the harm caused has compensable damages.

            I think there is some merit to Ahmed’s claims but the facts of the situation don’t really illustrate that he was treated any different because of his race, name, or religion. He probably was improperly detained but that seems to be the only legitimate cause of action. The $15 million asked for is completely compensatory damages, there is no stipulation asking for punitive damages. The apology letters he is asking for are nominal.

Unsensible Criminalization of Mary Jane?

            In criminal law we talked about “Why we punish?” I think the criminal laws for a substance like marijuana probably should be changed to mirror laws about alcohol. Drug and alcohol abusers need to be subject to rehabilitation punishments, not retributive or consequentialist which likely are unproportional to the harm done. I think the accessibility of the drug lessens the reasoning of criminalizing the drug because it is a gateway drug. If people want to use marijuana then they will and it’s up to them to let it control their lives or not. It is too much of a public resource burden to enforce these laws. That’s all I have to say about that; I don’t get very turned on by criminal law in general.  

Almost Hungry Enough for a $1 Million Contract Question

            After finishing my first final of the semester I made a rash decision to celebrate by driving 3 hours to Kansas City to watch BYU play football. The intrigue of the game to me was largely influenced by the current events occurring in connection with the University of Missouri (poop swastikas and what not). I thought the game might have some memorable implications because, the media at least, was making it into more than just a football game. But the contractual implications were what kept me fascinated when I first heard about the player strike. If the player strike made the university break its contract with BYU then would they have to pay the $1 million stipulated in the contract? What action would ticket holders, advertisers, and workers have? Would the university have a right to revoke the student’s scholarships? Would this affect future contract clauses for other issues including players who feel like they should be paid for their athletic services?

            Absent a merciless forgiving by BYU, which wouldn’t make sense, the $1 million would likely be enforceable. Cancelling because of the player strike would likely not be “entirely beyond the control of the defaulting party”. This contract was formed by promises. The signed agreement is sufficient consideration. The contract fulfils the Statue of Frauds because a written agreement is required when performance is not possible within a year. It is likely that Missouri and BYU each sent offer and counter offer forms with differing plans in regards to TV rights, ticket allotments, merchandising, etc. but the formation of these ideas was not binding until the written agreement was signed. BYU likely did not break its other contracts which it had already arranged with other teams until Missouri signed (technically BYU did not breach its contract with those teams but merely exercised an option to cancel with due compensation which is available under the contract). There are likely some gapfiller codes which would help address issues not directly stipulated such as how much the final bill for the Wagner players hotel would be (See Section 3(a)(1)). 

            Ticket holders would be reimbursed for the purchase of their tickets but likely would receive no further compensation because all ticket holders received non-discriminatory treatment. Advertisers would likely have claims which would need to be compensated by Missouri as well. Workers likely would not have a claim to invoke promissory estoppel against Missouri because the university wouldn’t be acting in bad faith.

            Typically scholarships can be revoked if a student does not meet academic standards or team rules. The athletic scholarship contract is based off of the player’s willingness to represent the school in athletic performance and if the player does not perform than he stands in breach of contract and the school is within its rights to withdraw the scholarship. If the players were on strike because the football coaches were treating them wrong then it would be harder to justify revoking scholarships but the distance between harm and cause of action in the Mizzou case would not invalidate the university’s ability to revoke scholarships.  Obviously the school would not have done this in the current situation because of the harm it would cause its football program by way of lost recruits and support.

            It is interesting to speculate whether future strikes will occur by players and the millions (billions potentially) of dollars which would exchange hands as the result of ensuing legal process. Because breaking college football contracts could cost millions of dollars it is a strong reason for the NCAA and universities to refine its rules on player compensation.