When Nina Totenberg is calling affirmative action "racial preferences," affirmative action is in trouble.

Here's her report — at the NPR website — on yesterday's oral argument in a case she doesn't mention the name of but which I happen to know is Schuette v. Coalition to Defend Affirmative Action. This is the case where the people of Michigan — after the Supreme Court approved of the University of Michigan Law School's use of race in admissions — amended their constitution to require that the state "not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin." Another way to put that is to say: The state constitution bans affirmative action.

Under U.S. Supreme Court case law, affirmative action in university admissions does not violate the Equal Protection Clause of the U.S. Constitution when it is done in a way that is narrowly tailored to the compelling interest in the benefits of classroom diversity. In Schuette, the question is not whether the university can choose not to have a policy of affirmative action, but whether the policy against affirmative action can be put in the state constitution — where, as a political matter, it becomes difficult to change. The idea is: 1. The political process has been restructured along racial lines, and 2. That restructuring violates Equal Protection.

It's a difficult argument to make, since it sounds like choosing equality imposes inequality, but there are a couple old cases upon which to build. I just want to focus here on Totenberg's (perhaps) careless adoption of the state's characterization of affirmative action as "racial preferences." Boldface added:

Students seeking to enact or get rid of other preferences can lobby the regents, [the ACLU's Mark] Rosenbaum observed. But racial minorities cannot lobby for reinstatement of consideration of race in college and university admissions decisions. Moreover, he said, to get back their preferences, minority students would have to embark on a difficult and multimillion-dollar campaign to re-amend the state constitution in a state that is more than three-quarters white.

Also arguing against the referendum was lawyer Shanta Driver. Justice Stephen Breyer posed this hypothetical to her: Most cities have "a vast number of administrators" of all kinds of programs. Suppose an administrator of one project decides to adopt a racial preference, for a good reason, but then the city council votes to abolish that preference. Would that be unlawful?

"No," replied Driver. Breyer pressed on, asking "Where's the line?" How do you avoid giving every individual administrator the power "to decide on his own whether to use racial preferences without a possibility of a higher-up veto?"

So there's Justice Breyer saying it too. Perhaps Totenberg picked up the cue from him. It seems to me, if you want affirmative action to be accepted as important, good, and — as we say in legal doctrine — compelling, you don't want to encourage the habit of thinking of it as preferences, which seem to be special benefits that some people get because of their race. You want people to think in terms of taking into account all of the many factors that play a role in the university's practicing of a subtle art of composing a student body with a marvelously fine-textured, beneficial-to-all diversity.

If that way of thinking is lost, affirmative action is doomed.

"The Hawai'i Girls Court is one of the first courts in the United States built on a full range of gender-specific and strength-based programming with a caseload targeting female juvenile offenders."

"Its all-female (Presiding Judge, Probation Officers, Program Coordinator, Therapist, etc.) staff is a uniquely powerful aspect of the program."

Gender-specific programming seeks to recognize the fundamental differences between male and female juvenile offenders as well as their different pathways to delinquency and, in doing so, act efficiently, creatively, and innovatively to stem the quickly rising tide of female delinquency.

It is our intention that empowering and building on our girls’ strengths now will also stop them from becoming involved in the criminal justice system as adult women, appearing as victims in domestic abuse cases and restraining order proceedings, or as mother’s [sic] in child protective services later in their lives.

The Hawai'i Girls Court Program is proud to be a model for gender-responsive programming while also advancing a vision of appropriate and gender-responsive services for all of Hawai'i. The explicit goal of this laboratory court is to promote the empowerment of girls involved in the Hawai'i juvenile justice system as well as to pilot programs that may be of relevance to the wider community of girls in the islands. By catalyzing a change in values, collaborating and building coalitions, the Hawai'i Girls Court is successfully inspiring others to share a gender-responsive vision and commit to youth programs that work with the critical and underserved population of juvenile female offenders. The Hawai'i Girls Court works for Hawai'i’s girls.

That link was sent to me by a former student who notes that it sounds like one of the hypotheticals I use in class when I teach the VMI case. It's not the separateness of the treatment of girls that's the main problem here. It's whether what is done for the boys is equally good.

How "gender-responsive" — to use the much-repeated term — can government be? Can government properly "recognize... fundamental differences" between males and females? Notice that "Girls Court" is presented as a "model" for other programs and the state is claiming to have a "vision" and a "mission."

A white supremacist buys up land in a little North Dakota town, gets an NYT article written about him.

"People have knocked on [Paul Craig] Cobb’s red door to offer to buy back his land and to preach the Gospel."

The City Council is looking into potential ordinance or health code violations (his home has no septic tank or running water). There is a doomsday plan in place, Mr. Schock explained: If enough of Mr. Cobb’s friends move in to gain a majority that could vote out the current government, the Council would immediately dissolve the town....

“Just want to let you know I’m not going to cause any trouble,” he said to Don Hauge, 61, who rolled up in a red Chevy pickup truck to where Mr. Cobb was sitting on a bench, peering through smudged rectangular glasses that slid down the bridge of his nose. Mr. Cobb is a lanky figure, dressed neatly in a button-down shirt tucked into slender black slacks he says he bought from someone who had stolen them, and rubber sandals.

It's a little hard to figure out what the issue is, in this, a free country.  Here's a key paragraph:

The Southern Poverty Law Center and The Bismarck Tribune revealed that the man, Paul Craig Cobb, 61, has been buying up property in this town of 24 people in an effort to transform it into a colony for white supremacists.

What constitutes a "colony"? Like-minded people converging on the same place? What makes that wrong? Isn't that the story of America?

I'm not a fan of white supremacists, just of the freedom of thought and speech and the right to migrate and to buy property. The fact that Cobb is "wanted in Canada on charges of promoting hatred" only underscores these American values, which are also offended by looking for health code violations because you don't like someone's political opinions.

NYC stop-and-frisk practice violates rights, the federal judge rules, after a 2-month trial.

"Relying on a complex statistical analysis presented at trial, Judge Scheindlin found that the racial composition of a census tract played a role in predicting how many stops would occur."

She emphasized what she called the “human toll of unconstitutional stops,” noting that some of the plaintiffs testified that their encounters with the police left them feeling that they did not belong in certain areas of the cities. She characterized each stop as “a demeaning and humiliating experience.”...

While the [U.S.] Supreme Court has long recognized the right of police officers to briefly stop and investigate people who are behaving suspiciously, Judge Scheindlin found that the New York police had overstepped that authority. She found that officers were too quick to deem as suspicious behavior that was perfectly innocent, in effect watering down the legal standard required for a stop.

“Blacks are likely targeted for stops based on a lesser degree of objectively founded suspicion than whites,” she wrote.

"The worst forms of racial discrimination in this Nation have always been accompanied by straight-faced representations that discrimination helped minorities."

Justice Thomas, in today's opinion in Fisher v. University of Texas, likening affirmative action to slavery and segregation. ("Slaveholders argued that slavery was a 'positive good' that civilized blacks and elevated them in every dimension of life.... A century later, segregationists similarly asserted that segregation was not only benign, but good for black students.... Following in these inauspicious footsteps, the University would have us believe that its discrimination is likewise benign. I think the lesson of history is clear enough: Racial discrimination is never benign....")

"If you think that you can think about a thing inextricably attached to something else without thinking of the thing which it is attached to, then you have a legal mind."

Justice Ginsburg, quoting Professor Thomas Reed Powell, in today's opinion in Fisher v. University of Texas, mocking the notion of race-blind alternatives to affirmative action.

AND: What really distinguishes the legal mind is knowing whether you want 2 things to be the same or different and the skill and the nerve to say that they are. That is, it's not about what you think you are capable of thinking. It's about what you are willing and able to say. Powell is willing to deploy the dead metaphor inextricable attachment and to soothe you into thinking that you're better than other people — ugh, lawyers! — if you don't ask whether those 2 things really are inextricably attached.

The 2 things in today's context are: 1. taking race into account in admissions and 2. other admissions policies that would produce a racially diverse student body. 

Rush Limbaugh on gay marriage: "This issue is lost."

Fascinating to hear it phrased that way by Rush Limbaugh, who for years — for mockery purposes — has played the audio clip of Harry Reid saying "This war is lost."

The Reid clip works as mockery because Reid was so wrong, wrong about the war being lost and wrong to express the demoralizing opinion. So in Rush's statement yesterday I hear a little nudge, a little cue that the issue isn't lost. Rush is answering an email from someone who feels that Rush has never expressed his opinion on gay marriage, and Rush begins with "Is my position on this really not known?"

This is a great teaser, keeping us listening at the end of the third hour of the show, which has already been full of talk about gay marriage. We're brought up short: Do we really not know what Rush thinks on the subject? He shifts away from that topic to a reverie about a conversation with a friend about "the left" and "the language game." We're looking at the show transcript here, but as a subscriber to the website, I'm hearing the audio as well, and it's slow and drawn out, like he's going to circle around before he gets to answering that emailed question, which nags me: I find myself assuming that Rush doesn't really care what gay people do in their private lives. He's not bound enough to tradition to have kept his own marriage vows, having divorced 3 times, and he hasn't put his life's energy into raising children. If gay people want to commit to monogamy, let them have their go at it. Good luck being better at it than I've been. That's what I think he thinks.

But I've got to listen to this disquisition on the left and language, which right away reminds me of how lefties are always whining that the right wins through "framing" — calling the estate tax the "death tax" and so forth. Both sides do things with language, and Rush is a master at pulling apart the other side's language (which, of course, entails substituting preferred language).

The language game, the left really excels at changing the language to benefit them politically, and they do it in such a way that a lot of people on our side have no idea what's happened until it's too late and the issue is already lost, which this issue is. This issue is lost. I don't care what the Supreme Court does, this is now inevitable -- and it's inevitable because we lost the language on this. I mentioned the other day that I've heard people talk about "opposite-sex marriage," or you might have had heard people say "traditional marriage."

You might have heard people say "hetero-marriage." I maintain to you that we lost the issue when we started allowing the word "marriage" to be bastardized and redefined by simply adding words to it, because marriage is one thing....

The social conservatives were playing a corresponding language game the whole time. They were relying — much too heavily — on the assertion that marriage has a fixed definition restricting it to one man and one woman.  If anything, the social conservatives insisted on framing the argument with the definition of the word marriage. "Opposite-sex marriage" is a retronym, like "snail mail." The existence/acceptance of the retronym proves the meaning of the root word has changed. Rush speaks in terms of "allowing" something like this to happen, but you can't control the evolution of the language that way.

The anti-gay-marriage side needed much more than a language argument. It lost not because the pro side did something with language. The pro side developed arguments about fairness, equality, and privacy. The traditional marriage people kept talking about the definition of marriage, which made it look more and more as though they had no good argument on the underlying substance. That's why they lost. Would they have lost even more quickly if they'd been less dictionary-focused and had concentrated on fairness, equality, and privacy? Either they were shallow or they were smart. That is, either they didn't know how to delve into the underlying principles at stake or they knew they'd get into trouble venturing beyond the definition-of-marriage argument.

Rush goes on to assert that the idea the marriage is between a man and a woman "was not established on the basis of discrimination."

It wasn't established on the basis of denying people anything. "Marriage" is not a tradition that a bunch of people concocted to be mean to other people with. But we allowed the left to have people believe that it was structured that way. 

No. That's not the pro-gay-marriage argument. No one thinks marriage was designed for the purpose of excluding gay people. The argument is only that there is an exclusion that we are now able to see. If someone points out that you're standing on his foot, you'd say I'm sorry and move your foot. You wouldn't say It's not as if I deliberately stomped on your foot and then keep standing on his foot. The continued behavior is mean. That's the meanness "the left" — along with many moderates and righties — has made many people believe. It has become mean. I believe that, and not just because Rush and others have "allowed the left to have people believe." Allowed!

Rush continues:

I would go so far as to say that there are some people who think marriage is an evil Republican idea, simply because they're the ones that want to hold on to it. 

That's hard to understand because he's using the restricted definition of "marriage." I almost wrote Huh? No one seems to be saying marriage is evil anymore.

So far as I'm concerned, once we started talking about "gay marriage," "traditional marriage," "opposite-sex marriage," "same-sex marriage," "hetero-marriage," we lost.  It was over.  It was just a matter of time.  This is the point a friend of mine sent me a note about.

"Once you decide to modify the word 'marriage,' then the other side has won, or at least they're 90% of the way home.  The best thing that 'marriage' had going for it was basically what they teach you the first day in law school: 'If you hang a sign on a horse that says "cow," it does not make it a cow,' although today it might."  That's where we are: 5 + 5 could = 11, if it works for the Democrats.  A cow could be a horse, if it works for the Democrats. 

Yes, the best argument was the words-have-meaning argument, but law school doesn't end on the first day, and the meaning of words is a complex topic. It's not like adding 5 + 5. I know there are a lot of jokes about lawyers like the client asking what's 5 + 5 and the lawyer answering "What do you want it to be?" In fact, I think I heard that joke on my first day in law school. But law isn't arithmetic, and people's lives are not numbers, and the question of what is right and wrong can't be done on a calculator. In fact, it's morally wrong to treat human beings as if they are numbers that can be added and subtracted mechanically.

Back to Rush:

The thing is, discrimination has never been a part of marriage.

It evolved as the best way to unite men and women in raising a family and in cohabitating a life.  It's not perfect.  The divorce rate's what it is.  But it evolved with a purpose.  It was not a creation of a bunch of elitists wanting to deny people a good time.  It was not created as something to deny people "benefits," but it became that once we started bastardizing the definition.  But discrimination is not an issue, and it never was.  No one sensible is against giving homosexuals the rights of contract or inheritance or hospital visits.

Right. No one sensible.... See how he's conceding there's no legitimate reason for the discrimination? In law — this is something you learn after the first day of law school — discrimination between classes of persons must be supported by a legitimate government interest. That's always an issue. You can't say that we didn't originally notice this discrimination. It must be justified. This is called the "rational basis" test, and it's the question right now before the Supreme Court. Rush has conceded the irrationality: No one sensible would deny gay people what government makes depend on being married.

There's nobody that wants to deny them that.  The issue has always been denying them a status that they can't have, by definition.  By definition -- solely, by definition -- same-sex people cannot be married.  So instead of maintaining that and holding fast to that, we allowed the argument to be made that the definition needed to change, on the basis that we're dealing with something discriminatory, bigoted, and all of these mystical things that it's not and never has been.

So he's in my "smart" category. He knows the definition-of-marriage argument is the only good argument. There is no other argument. Once that is lost, the game is lost. For the social conservatives — in this view — the only game was the language game.

At this point in the monologue, it becomes comical with a far-fetched analogy to someone who complains that they want the money and fame that someone else has. "I want to be an Obama... It's not fair that I can't be an Obama.... They're discriminating against me!" Rush is stretching for time now and retreating to the familiar ground of Obama and the redistribution of wealth, which is far from the problem of inequality enforced by law. This silly stuff goes on and on up to the commercial break, after which he says he's "just illustrating absurdity by being absurd." But he didn't illustrate absurdity. He ran from his own realization that the definition-of-marriage argument wasn't good enough and that in the end it was not a language game. It was real life.

And now he's out of time:

Just trying to point out what happens if we lose definitions, which is why we are where we are here.  People refuse to stand fast on the definition of something. 

But the anti-gay-marriage people did stand fast. They stood on the only decent ground they had, and they fought there, and they lost not because of words, but because of moral feelings that developed on a deeper level, a level where the antis chose — wisely! — not to go.

And did you notice? Rush never answered the question asked! He mentioned law school: When I — a law professor — grade exams, I only give credit for answering the question asked. He got on a riff and filled the page, but I haven't forgotten the question: "Is my position on this really not known?"

But this isn't a law school exam. It's a radio show. And the riff was great radio, and he's got everyone talking about it this morning, including me, a law professor. What was the question anyway? He posed it himself! It was: "Is my position on this really not known?"

I'll answer that question. The answer is: No!

Justice Ginsburg's idea of "two kinds of marriage; the full marriage, and then this sort of skim milk marriage."

Here's the audio and transcript for today's oral argument in United States v. Windsor, challenging part of the federal Defense of Marriage Act. I've listened to the whole 2-hour argument and I'm going to pull out a few things in separate posts. The first hour is about whether there is standing — a technical but extremely interesting and difficult issue.

At the beginning of the second hour, Paul Clement is defending DOMA. He states his point clearly: Congress has power to define marriage for the purpose of all the many federal programs that have long relied on a marriage classification, and even though it has long treated couples as married when they are married according to state law, it had the "flexibility" to exclude same-sex marriages when some states switched from the traditional definition of marriage. The states still control the definition of marriage, in this view, and all Congress did was define the scope of the coverage of the federal programs.

The first Justice to break in is Ruth Bader Ginsburg, who seems prepared with her own succinct argument:

Mr. Clement, the problem is if we are totally for it would totally thwart the States' decision that there is a marriage between two people, for the Federal Government then to come in to say no joint return, no marital deduction, no Social Security benefits; your spouse is very sick but you can't get leave... one might well ask, what kind of marriage is this?

(The strikeout shows where I corrected the transcript, based on the audio.)

Ginsburg returns to this idea later in the argument, after Clement asserts that the states don't "los[e] any benefits" — they are merely blocked from "open[ing] up an additional class of beneficiaries."

JUSTICE GINSBURG: They're not -- they're not a question of additional benefits. I mean, they touch every aspect of life. Your partner is sick. Social Security. I mean, it's pervasive. It's not as though, well, there's this little Federal sphere and it's only a tax question. It's -- it's -- as Justice Kennedy said, 1100 statutes, and it affects every area of life. And so he was you would really [be] diminishing what the State has said is marriage. You're saying, no, State said two kinds of marriage; the full marriage, and then this sort of skim milk marriage.

It's an interesting puzzle. What is a marriage? Is it the bundle of benefits you receive? Marriage is seen as something left to the states in American federalism, but to say that is to ignore the immensity of what the federal government does, much of it hinging on this marriage classification that refers to state law. You really do have much less of a marriage if you don't get all those federal things, but these federal programs all rest on an enumerated power — taxing, spending, etc. — and why wouldn't the feds, in designing any given program have, within that power, the power to delineate who qualifies?

I'm only talking about whether Congress has an enumerated power, not whether this exercise of that power violates the equal protection right, which is also part of this case. And obviously, I'm not talking about the things government does not even attempt to do with marriage — which is to determine whose love relationships are "full" in an emotional and spiritual way.

A federal court trial on the constititionality of the NYC police stop-and-frisk policy.

"Lawyers for the plaintiffs hope to convince Judge Scheindlin that officers are under pressure to make stops as part of a quota system, and that police supervisors use subtle hints and coded language to encourage officers to stop young minority men."

In response to the accusations, the Police Department has denied using a quota system and points to its written policy forbidding racial profiling.

“Minorities are overwhelmingly the victims of violent crime in New York City, and the neighborhoods in which they live demand and deserve the Police Department’s attention,” the city’s executive assistant corporation counsel, Celeste Koeleveld, said in a statement about the coming trial. “Precinct by precinct, the rates at which minorities are stopped are consistent with the rates at which minorities are identified as crime suspects.”

The court is looking at a period in which there were 5 million police stops and only 12% resulted in arrests.

"If schoolteachers were overwhelmingly male and girls were suffering as a result..."

"... there would be a national outcry and Title IX-style gender equity legislation would be touted."

We expect males to solve their own problems. There's no tradition of helping and help-seeking as there is with females. Ironically, that tradition of helping females is patronizing and paternalistic. Whether it's good for government to serve female interests like that or not, it's hard to transfer that nurturing attention onto boys. Is portraying boys as victims good for boys? It's especially problematic if you are going to disparage the female teachers:

It seems that teachers -- overwhelmingly female -- just might be prejudiced against boys and it's hurting their grades.

Might be...

By the way, the egregious example of prejudice against boys that I've seen came from a male teacher. It was exactly the kind of stereotyping of boyish behavior that the author of the linked article — Instapundit — is talking about.

Make no mistake: I think there is a problem with boys in school. But what is the solution?

Here's a hypothetical I made up for discussing the problem in my law school constitutional law class. In a place I call Gendertopia, where policy is based scientific research indicating that there are male and female gendered learning styles, there's a plan for 2 high schools, both of which will receive equal resources. The male-style school will have labs, contests, aggressive sports, and strict discipline from the teachers. Music class is all about using Apple Logic Pro 9. The female model school has group projects and mutual tutoring, positive reinforcement and self-esteem, yoga and dance classes, and — for music — a strings program. Violins, violas, and cellos are distributed.

Do you like my solution? (Don't assume all the boys go to one school and all the girls go to the other school.)

The Obama administration's brief in the Supreme Court's DOMA case.

Lyle Denniston summarizes the briefs filed yesterday in United States v.Windsor — the case attacking the federal law that excludes same-sex couples, married under state law, from being treated as married for the purposes of federal benefits and tax laws.

The brief continued the efforts by the administration, begun two years ago tomorrow, to persuade the courts to adopt a rigorous test when they judged laws that discriminated against gays and lesbians.  Instead of the much more tolerant “rational basis” test, the government has been pressing for what is called “heightened scrutiny.”  And Friday’s brief defended that approach energetically.



This is the first time the federal government has proposed that constitutional test in a gay rights case before the Supreme Court.  The Court itself has never specified just what constitutional standard it will apply in such cases, but it may have to settle that this Term.

The DOMA benefit ban for married same-sex couples, the brief argued, cannot withstand the tougher standard.  “This Court,” the brief said, “has understandably reserved the application of heightened scrutiny to a small number of classifications.”  While the Court has not yet spelled out its own view of what the test is, the brief said, “under the factors articulated by this Court, such classifications warrant heightened scrutiny.”

More detail about the argument for heightened scrutiny at the link, and you can read the whole brief here (PDF).

There's a second pending Supreme Court case dealing with California's Proposition 8, and although the administration hasn't filed a brief in that case, the brief Windsor refers to Prop 8 as it makes the argument for heightening scrutiny, which — under standard equal protection doctrine — looks at a number of factors including whether a group has been excluded from political power.  From the brief:

Although some of the harshest and most overt forms of discrimination against gay and lesbian people have receded, that progress has hardly been uniform (either temporally or geographically), and has in significant respects been the result of judicial enforcement of the Constitution, not political action....

[There is no] convincing record of political power rendering protection unnecessary.

The brief cites various recent successful political efforts against same-sex marriage, including this footnoted reference to Prop 8:

By way of example, in May 2008, the California Supreme Court held that the state was constitutionally required to recognize same-sex marriage.... In November 2008, California’s voters passed Proposition 8, which amended the state constitution to restrict marriage to opposite-sex couples.

My guess is the Court won't heighten scrutiny, but it will find an equal protection violation in both of the cases. I predict a 6-3 decision.

Speaking of being called to a higher law and speaking of speaking....

In the previous post, we're talking about what Jesus wrote in the sand and what he said out loud, in the New Testament story where the scribes and Pharisees present Jesus with the question of what to do with a woman who was caught in the act of adultery. In the Gospel text, we're told Jesus that wrote on the ground, but not what he wrote, and we're told that he subsequently spoke and said "Let him who is without sin among you be the first to throw a stone at her."

I'm putting up a separate post because I found the scene that sydney said he loved in the movie "The King of Kings." Made in 1927, it's a silent movie, so no one is saying anything out loud. We see what Jesus says written out on the intertitles, and we also see what he writes in the sand.



Beautiful filmmaking, particularly as the sand-words, not written in Roman letters, transform into our English words, naming the sins that the men in the crowd realize they've committed, and that's why they all turn and walk away.

That's not an accurate depiction of what happens in the biblical text though. The movie shows a mob on the verge of stoning the woman and Jesus intervenes and announces his rule about casting the first stone. Only thereafter, does he write the names of the sins in the sand. But in the Bible story, there is no angry mob with stones in hand. There are scribes and Pharisees demanding that Jesus deliver a legal opinion. Jesus bends down and writes on the ground instead of answering the question.  Only after they persist does he stand up and pronounce his new rule, which causes the scribes and Pharisees to walk away — "beginning with the older ones." The movie would have you see the members of the mob acknowledging their sins and their consequent lack of qualification to cast the first stone. But the text has intellectuals trying to box Jesus in on a question of law, and Jesus getting the better of a conversation he didn't want to have in the first place.

It's not surprising that a movie plays up the visible drama, and it's also not surprising that when I — a law professor — read the text, I see something akin to a law school class. The professors try to stump the student and the student transcends their tricky game. To me, the part where Jesus bends over and writes in the sand is like what happens in a law school class when the lawprof poses a difficult hypothetical and the students bend their heads down and go through motions of writing. They don't want to answer. It's not that they're writing something magically revelatory and startling. But if the lawprof keeps pushing and calls on someone, an answer will be spoken out loud.

I guess the law-professorly interpretation of the text isn't terribly cinematic. It's no wonder the movies present an angry mob with stones in hand and Jesus miraculously knowing and changing the hearts of the sinners. (And the adulteress is an actress evincing exactly the form of sexiness that was fashionable in the year the movie was made. I love the eyeliner!)

But to me the lawprof interpretation is thrilling and dramatic. The professors think they've got the upper hand. They know the legal text and it's tough. And then the brilliant student who will soon be the greatest professor of all gets on top of the dialogue and says something they must accept as correct: If you're going to have strict rules and severe mechanisms of enforcement, you must apply them equally to everyone. This is the structural safeguard of equal protection of the laws that is the necessary component of a democratic system. If there can't be exceptions and special treatment for preferred people, legislatures will resist imposing harsh rules and painful punishments.

In this context, let me give you my favorite Justice Scalia quote, which happens to include one of the key words of Christianity: "Our salvation is the Equal Protection Clause, which requires the democratic majority to accept for themselves and their loved ones what they impose on you and me."

What did Jesus write in the sand? (Or: things I should have learned in church that I figured out from the Althouse comments.)

Yesterday, when many blogs were talking about the Islamist Facebook page with a cartoon showing how to stone a person who had committed adultery, I added the New Testament story, from John 8, in which Jesus said: "Let him who is without sin among you be the first to throw a stone at her." Jesus had just been teaching some people, and the scribes and the Pharisees, looking for a way to trip him up — they wanted to bring charges against him — present Jesus with a woman who had been caught in the act of adultery and remind him that the Law of Moses commanded that she should be stoned. "So what do you say?" Instead of answering, Jesus bends over and writes in the dirt. They keep pushing for an answer, and it's only then that he says: "Let him who is without sin among you be the first to throw a stone at her."

I didn't include the next few sentences, but the story was very familiar. After Jesus makes his brilliant remark — which finds a new way into the question — the crowd disperses and Jesus tells the woman to "go and... sin no more."

Some of the commenters focused on what it was that Jesus wrote on the ground. I'd always assumed that what Jesus was writing was irrelevant and that he was simply gesturing I'm not going to talk to you. He invoked his right to remain silent, as we say in the United States of America. He knew whatever he said would be used against him. Later, when he arrives at the New Testament doctrine — the higher law — he speaks up and articulates it pithily. He doesn't write it. Jesus isn't the put-it-in-writing type. The scribes are the bad guys here, and he's about talking to the people. The Word is spoken. (It's only written down later.)

But, reading the comments, I see interest in the subject of what Jesus wrote.

Sydney says: "In the movie The King of Kings, each accuser comes up to Jesus and sees written in the dirt his own sin, and turns and walks away. I love that scene." Is that the standard theory of what Jesus wrote?

And Chip Ahoy, linking here, says: "But what did he write in the sand?" At the link, we get added details from The Urantia Book (which I'd never heard of). There, the idea is that Jesus knew the woman's husband was a "troublemaker" and "perceived" that he'd forced the woman into prostitution and that the husband was now cooperating with the Pharisees to get Jesus to say something that could be used to arrest him. In this version of the story, Jesus doesn't just bend over and write in the dirt right where he is. He walks over to the troublemaker husband and writes something in front of him that makes him rush off. Jesus comes back to his original place and writes on the ground again, and the men, "one by one," leave. Last to go, is "the woman's companion in evil," who gets his own special message written in the dirt.

Kentuckyliz gives us the Old Testament quotes (the law of Moses, which is what the Pharisees threw at Jesus to trip him up):

Deuteronomy 22:22 "If a man is found sleeping with another man's wife, both the man who slept with her and the woman must die."

Leviticus 20:10 "If a man commits adultery with another man's wife — with the wife of his neighbor — both the adulterer and the adulteress must be put to death."

Kentuckyliz adds:

What's interesting about the Jesus scene, is that the law had become misogynistic in practice. The man is not being stoned according to the mandates of the law. In fact, I suspect he was standing in the crowd holding a stone.

Note that even in the extremely concise story told in John 8, we hear that the woman was "caught in the act." Whether he was in the crowd or not, the adulterer was known. Why aren't the authorities proposing to stone both the man and the woman? Kentuckyliz doesn't refer to what Jesus wrote in the sand, but this made me imagine that Jesus wrote "the man and the woman." And if the woman was a prostitute, all of the men who had ever slept with her would deserve stoning too.

In this scenario, Jesus acknowledges the written law of Moses by writing it. That's the Old Testament, which Jesus won't reject, even as his enemies are trying to lure him into rejecting it. He's showing that he knows the law, and in very few words, he's made it obvious to the legal experts that they are getting the law wrong and making them see their own faint-heartedness about equal justice, applying the strict law strictly on its written terms and to everyone. Then Jesus speaks, and the spoken word is the New Testament, calling us to a higher place, above the strict rules, under which we are all sinners. The New Testament demands that we look at our own sins. Go and sin no more.

That ought to keep you busy for the rest of your life. Now, leave other people alone.

ADDED: A second post includes the "King of Kings" clip and more.