They say that a true music afficianado is one who can hear the William Tell Overture without thinking of the Lone Ranger (perhaps that reference is too old, and a better test is whether one can listen to Carmen without thinking of the Bad News Bears).

Well, tonight I declare the test for a true legal scholar: a person who can read a post about an article called "Hooker on the Costs of Internalizing a Moral Code" without snickering to himself and inserting his own punchline. (Apologies to Professors Solum and Hooker.)

As Will notes, Professor Volokh summarizes a recent opinion of the Minnesota Court of Appeals that a trial court may have infringed on a defendant's Free Exercise rights by forcing him to conceal a cross he was wearing during his trial.

Because the Minnesota constitution is more protective of religious freedom than its federal counterpart, the court's analysis isn't nationally applicable. Professor Volokh, though, seems to opine that the district court's actions may have run afoul of the US Constitution. I'm not sure I agree.

It's my understanding (and this is the premise of my argument, so if it's wrong, everything else is a nullity) that a trial court can impose all sorts of restrictions on the attire and trappings of the participants in its proceedings, even when the participant in question is a criminal defendant. For instance, if a criminal defendant wore a United Steel Workers pin or shirt in an area comprised of a high proportion of unionized workers (or even in an area with a low such proportion), the judge could likely instruct him to conceal the insignia. This wouldn't be a violation of the defendant's right to freedom of expression, as that right is counterbalanced in this case in the state's (and the defendant's) interest in a fair trial conducted by unbiased fact-finders.

This is where the Minnesota courts missed the bigger picture. The cross is objectionable not because it has a religious connotation, but because it signifies membership in a particular group. That the group in question is religious in nature does not vitiate a court's ability to keep the jury's focus on the facts of the case they are adjudicating rather than the groups to which a litigant does or does not belong. Instead, requiring concealment of the cross is merely an extension of a neutral practice of forbidding defendants from trying to arouse sympathy or passion by communicating to jurors that they're members of the same group, club, union, dietary group, etc. Because the practice is neutral and not aimed at curbing religious expression in particular, then, it does not run afoul of the federal constitution.

It seems there's so much to talk about--in particular, for me, the Miranda cases and the detainee cases. I hope to get to these tomorrow. I spent much of my day driving between my current home town and my future home town in order to be sworn in to practice in the US District Court in the latter. The judge who conducted the ceremony is an icon and one of my heroes, so when the opportunity arose to be sworn in by him, I couldn't pass it up, despite any personal inconvenience suffered by spending too much time in my 1998 two-door Neon.

Washington v. Blakeley: It not only has tasty footnotes (see here and here), but it also strikes down the Federal Sentencing Guidelines-- at least, so argues Judge Cassell in his (very convincing) opinion. Interestingly, Cassell disregards the possibility of sentencing juries or unilateral sentence adjustment (considering mitigating factors but no aggravating ones), and thus concludes that the guidelines must be jettisoned altogether. This, of course, frees the Judge to make a determination anywhere withing the broad statutory range and, Cassell argues, to consider the guidelines as a non-binding guideline.

I haven't blogged about hats in a while, have I?

This post by Eugene Volokh about the right to wear a cross at one's trial brings to mind this (PDF) opinion on hats (and the Moorish Science Temple) by Judge Easterbrook, which I previously mentioned here. The Easterbrook opinion rebukes a trial judge (on non-legal, rather than legal grounds) for forbidding hats in his courtroom.

Hats, of course, are not necessarily religious (though the hats at issue were), and these hats were worn by spectators rather than witnesses. Finally, as I understand it, the Minnesota Court did not require defendant to remove her cross, only to conceal it.

Still, the case may be illuminating. If not, it will hopefully be entertaining:

[O]ne additional matter requires comment. Several spectators came to court wearing hats. The judge directed them to uncover their heads:

THE COURT: I note there are quite a few people here. As a matter of respect for the Court, the dignity of the Court does not allow any headdresses, so individuals wearing any type of headdresses will be asked to leave now or remove them. Also, no hats, no skull caps, nothing like that is permitted. Did you folks hear me in the back?
UNIDENTIFIED SPEAKER: This is my national headdress and also a part of my religion.
THE COURT: Ma’am, that is not allowed in this courtroom. You are welcome without it, so please leave until you can take it off.
UNIDENTIFIED SPEAKER: If Jews were to come in here—
THE COURT: Jews will not wear yarmulkes. I am Catholic and the Pope would not wear a miter. Please leave, take it off and come back in, or do not come back in, the choice is yours.

Counsel for James contends that the district judge violated the first amendment by excluding from the courtroom any spectators whose religious beliefs require them to cover their heads. Because James himself did not seek to wear any form of head covering, he lacks standing to raise this contention. None of the spectators was held in contempt, and none has sued seeking a declaratory judgment. But although this appeal does not present an Article III case or controversy on this issue, the judicial branch has an interest in the prudent handling of public relations, and no formal controversy is needed to say a few words on the topic.
The Constitution does not oblige the government to accommodate religiously motivated conduct that is forbidden by neutral rules, see Employment Division v. Smith, 494 U.S. 872 (1990), and therefore does not entitle anyone to wear religious headgear in places where rules of general application require all heads to be bare or to be covered in uniform ways (for example, by military caps or helmets). See Goldman v. Weinberger, 475 U.S. 503 (1986). Yet the judicial branch is free to extend spectators more than their constitutional minimum entitlement.
Tolerance usually is the best course in a pluralistic nation. Accommodation of religiously inspired conduct is a token of respect for, and a beacon of welcome to, those whose beliefs differ from the majority’s. The best way for the judiciary to receive the public’s respect is to earn that respect by showing a wise appreciation of cultural and religious diversity. Obeisance differs from respect; to demand the former in the name of the latter is self-defeating. It is difficult for us to see any reason why a Jew may not wear his yarmulke in court, a Sikh his turban, a Muslim woman her chador, or a Moor his fez. Most spectators will continue to doff their caps as a sign of respect for the judiciary; those who keep heads covered as a sign of respect for (or obedience to) a power higher than the state should not be cast out of court or threatened with penalties. Defendants are entitled to trials that others of their faith may freely attend, and spectators of all faiths are entitled to see justice being done.

My second article at TNR Online--Brothers in Law?: Why Clarence Thomas and Antonin Scalia are at odds in so many cases.--is now up.

[And thanks to all who linked to my inaugural TNR Online effort: Amber Taylor, Toby Stern, Chris Geidner, Tom Mulherin, Spencer at Mediocrity's Copilot, Ken Lammers, Phil Brinkman, Evan Schaeffer, Patrick Belton, and Glenn Reynolds, as well as Lawrence Solum and Howard Bashman (both of whom linked to the piece before I did), and any blogger I inexcusably missed.]

In the course of his defense of pragmatism to Dahlia Lithwick, Walter Dellinger points me to another intriguing Scalia dig. Donald has already given an admirable discussion of the substance of Sosa v. Alvarez-Machain (which Dellinger erroneously calls, as of 10:58, Alvarez-Machine), including Scalia's concurrence, so here I present a bit of the concurrence's rhetoric:

This Court seems incapable of admitting that some matters—any matters—are none of its business. See, e.g., Rasul v. Bush, ante, p. ___; INS v. St. Cyr, 533 U. S. 289 (2001). In today’s latest victory for its Never Say Never Jurisprudence, the Court ignores its own conclusion that the ATS provides only jurisdiction, wags a finger at the lower courts for going too far, and then—repeating the same formula the ambitious lower courts themselves have used—invites them to try again.

It would be bad enough if there were some assurance that future conversions of perceived international norms into American law would be approved by this Court itself. (Though we know ourselves to be eminently reasonable, self-awareness of eminent reasonableness is not really a substitute for democratic election.) But in this illegitimate lawmaking endeavor, the lower federal courts will be the principal actors; we review but a tiny fraction of their decisions. And no one thinks that all of them are eminently reasonable.

[Scalia] rang the same chime yesterday by referring to Justice O'Connor as "Ms. Fix-It-Up" for her Hamdi middle-ground opinion finding that some independent tribunal and some process was due to detainees.

There is a certain harmony of approach in the plurality’s making up for Congress’s failure to invoke the Suspension Clause and its making up for the Executive’s failure to apply what it says are needed procedures—an approach that reflects what might be called a Mr. Fix-it Mentality.

Since Donald cannot blog about Blakely, I shall. Amber Taylor has yet another tasty Blakeley footnote to add to the ones that I blogged earlier.

Brock Sides wonders about the curious semantics of laundry:

When clothes are on your body, they are not laundry. But when you toss them into a pile, basket, or hamper, and they are waiting to be washed, they become laundry. They are laundry while they are being washed, dried, and folded.

But when you put them away, into a closet or drawer, they cease to be laundry.

(Apropos International Kissing Day)

More, from Shakespeare:

R:
If I profane with my unworthiest hand
This holy shrine, the gentle fine is this:
My lips, two blushing pilgrims, ready stand
To smooth that rough touch with a tender kiss.

J:
Good pilgrim, you do wrong your hand too much,
Which mannerly devotion shows in this;
For saints have hands that pilgrims' hands do touch,
And palm to palm is holy palmers' kiss.

R:
Have not saints lips, and holy palmers too?

J:
Ay, pilgrim, lips that they must use in prayer.

R:
O, then, dear saint, let lips do what hands do;
They pray -- grant thou, lest faith turn to despair.

J:
Saints move not, though grant for prayers' sake.

R:
Then move not, while my prayer's effect I take.