Law Defining Family

The best advice I received from a lawyer when I was considering whether to attend law school was, "don't do it!" Another wise lawyer, when I was later considering whether to enroll in a Family Law course, gave the same advice. But since I listened to neither, I found myself in my first Family Law class this morning. What a treat to study the "law" of "family" at a major secular institution from a Professor whom one student described in an old evaluation as "androgynous."

The first order of business, and I would guess this is the same in every Family Law course taught in the country, is to define what we mean by the word "family". This definition colors how we are prepared to justify or seek changes to laws about marriage, divorce, adoption, child rearing, etc.

The professor instructed the class to write three conclusions to this fragment: "A person or a group of people constitute a family when…" Good thing we didn't squeeze out a single person as "family" from our options for definitions.

Dictionary.com, to their credit, has a virtually identical definition of family today as their Random House progenitor had in my trusty 1962 edition (i.e., "parents and their children", and so on). On the other hand, it seems that the elite have attended to cleaning up American Heritage: "Two or more people who share goals and values, have long-term commitments to one another, and reside usually in the same dwelling place." Under this definition, I would guess that Frat boys can adopt a baby Joe Sigma Tau... The old Black's Law Dictionary (1979) says the term "most commonly refers to group of persons consisting of parents and children." Today's Black's (8th ed. 2004) adds "A group of persons who live together and have a shared commitment to a domestic relationship." The circularity of this definition is evidenced by looking up domestic: "Of or relating to the family or the household".

So that's where the authorities stand. How did I thrice complete the above fragment?

“A person or a group of people constitute a family when…” 1)...they vow before God to enter into a holy unity. 2) ...they are parents or children following and according to the sexual act’s implicit vow of unity. 3) I can't think of a third.

Then we were told to share our answers with the classmate (i.e., feminist) sitting next to us (Gasp!). Fortunately, my neighbor walked in late, so did not participate in this exercise. We ended by calling out what we thought were good answers for the board. The professor categorized everything under one of three headings (none of which would contain my first answer):

Blood:
Biologically related, e.g., mother-daughter
Siblings
Grandparent-grandchild

State Recognition:
They are married
Parent-child adoption

Function:
Reliance on others for daily needs
Share holidays
Agreement, conscious, and consensual
Non-marital cohabitants
Authority/power structure

..."when they have an agreement, conscious and consensual" was the first answer given.

My point: a society of broken families is a broken society. Ours is losing its ability to even comprehend the order of Family instituted by our Creator. Not that I have it right, but these answers are almost all entirely wrong. Really though, how concerned should we be with how our State defines Family?

Half a J.D.

Finals are done! Praise the Lord for seeing my family through another tour de force, made difficult exclusively because of my pride -- pride that the grades turn out better than the next guy, so I can continue to act nonchalant about beating others. Does "many who are first will be last, and the last first" apply to law school? Gasp!?

Fetal Murder, Texas Style

[Fine Print: the below is about an hour's worth of Google-only legal analysis, so I welcome any corrections, especially from my esquired readers.]

For an interesting piece about non-elective abortion being treated as murder in Texas, read here. By "non-elective abortion", I mean the death of a fetus-child not elected by his or her mother to be performed by a physician, and I mean to exclude "spontaneous abortion" (i.e., miscarriage).

It is an interesting approach Texas has taken, and an interesting fact pattern it is pursuing in court. A boyfriend, angry at the recently pregnant mother of his child, murdered her (and the child with her). He is being prosecuted on two counts of murder. Texas defines capital murder to include, inter alia, murders of more than one person in one "criminal transaction", and of a child under the age of six (Tex. Penal Code, Title 5, Sect. 19.03(a)(7)(A) and (a)(8)). So, much is on the line for this young man.



Criminal law requires both a guilty mind (mens rea) and a guilty act (actus reus) to have a guilty defendant. The guilty mind element does not mean that one has to hate or feel scorn before one faces criminal liability. Rather, it requires that one act with intent, knowledge, or recklessness with regard to the prohibited conduct.

The Texas Penal Code defines murder as "intentionally or knowingly caus[ing] the death of an individual" (Sect. 19.02(b)(1)). As Texas has separately defined a fetus as an individual, a physician intentionally causing the death of a fetus there would meet both the mens rea and actus reus requirements of Texas' murder statute.

Of course we know such a plain reading does not conform with the U.S. Supreme Court's mandate in Casey v. Planned Parenthood, the standing ruling that reinvented the sputtering rationale underlying Roe v. Wade. A law that inhibits a so-called "fundamental liberty interest" such as abortion will be struck down (as was, for example, the fate of Connecticut's anti-contraception law in Griswold v. Conn.). I, for one, would enjoy seeing the Supreme Court strike down Texas' entire Criminal Homicide Chapter as an unconstitutional infringement on fundamental liberties, but those sensible jurists in black are too wise for such attention-gathering shenanigans. They will find a subtler way to act. They could, for example, simply strike down the Texas law that defines a fetus as an individual. That would solve several problems, including the possible death sentence this father faces for killing his girlfriend and child.

I really believe that states opposed to the Roe mandate can do no better in the near term than to legislatively define the fetus as a person endowed with his or her own rights. The difficulty here in distinguishing murder from medicine may leave courts looking high and low to nix the law. I hope to hear more of this case as it works its way through the cogs of the appellate process.

Why O'Connor Probably Doesn't Stuff Scalia's Stocking

[Fear not; the tide of abortion-related posts will soon abate as my Constitutional Law class leaves the issue in the past.]

"But to portray Roe as the statesmanlike "settlement" of a divisive issue, a jurisprudential Peace of Westphalia that is worth preserving, is nothing less than Orwellian. (Planned Parenthood of Southeastern Pa. v. Casey, 505 U.S. 833 (1992))"

For these and other brilliant and inflammatory comments by Justice Antonin G. Scalia about the Supreme Court's foisting inividuals' abortion "rights" against the states, see his dissent at the bottom of the page here.

Here are some more for good measure: (this one said mockingly paraphrasing the plurality's prevailing opinon) "We are offended by these marchers who descend upon us, every year on the anniversary of Roe, to protest our saying that the Constitution requires what our society has never thought the Constitution requires. These people who refuse to be "tested by following" [our decision] must be taught a lesson. We have no Cossacks, but at least we can stubbornly refuse to abandon an erroneous opinion that we might otherwise change - to show how little they intimidate us."

Observe here that the High Court does indeed take note of the annual March For Life, held on January 22nd!

Lastly, "The people know that their value judgments are quite as good as those taught in any law school - maybe better." True, that. The only view I've been able to discern as being taught in law school is that relativity is virtuous, and absolutes are inherently evil.

Fed Picks Religion In Prison?

Check out this post (referring to this article) regarding alleged Executive Branch selection of "approved" books at Federal Prisons.

From my studies of the Religion Clause(s) of the First Amendment, I honestly am skeptical of the veracity of this report. It stretches my imagination to believe that the Attorney General would be interested in flying in the face of prevailing First Amendment jurisprudence.

For government to pick approved religious texts for prisoners, who are otherwise not able to exercise their religious freedom, the government would have to make a religious determination. The principle of government not answering religious questions was firmly settled over 50 years ago in United States v. Ballard, 322 U.S. 78 (1944). It said, "The Fathers of the Constitution were not unaware of the varied and extreme views of religious sects, of the violence of disagreement among them, and of the lack of any one religious creed on which all men would agree. They fashioned a charter of government which envisaged the widest possible toleration of conflicting views. Man's relation to his God was made no concern of the state." [There are probably much better cases on point, but I don't have time to avocationally write a legal memorandum.]

Unbiased Advocates

The 'Passion' of the ABA:
I will not write about this week's landmark abortion decision reached by the U.S. Supreme Court, as it has been and will continue to be exhaustively covered by others more competent and knowledgeable than I am. Gonzales v. Carhart, No. 05-380.

I WILL note the view taken by the American Bar Association's "E-report". If you have the patience to read through even a third of it, I would like to hear an argument that it is not patently biased in favor of the existing Roe/Abortion-industry regime. http://www.abanet.org/journal/ereport/a20abort.html.

As evidence, I note that it mentions two "anti-abortion" groups, that term being juxtaposed with "abortion-rights proponents". Get it? One hates all abortion, while the other stands up for mankind's right to have one performed. To beat a dead horse, why not "fetal-life-rights groups" and "abortion-rights proponents"? Why not "anti-abortion" groups and "abortion [without the 'rights'] proponents"?

Why is this troubling? It would be foolish of me to get upset that a particular writing seems displeased with the Court's recent ruling. But the American Bar Association (of which I am a member) represents our nation's advocates. And advocates are by training and vocation to be impartial. Our nation's advocates' collective organization, representing lawyers who personally fall on both sides of this issue, lacks the ability to handle such a debate without prejudice.