Sneaking Suspicions
Archives-- August 22-28, 2004

This page includes posts from August 22-28, 2004 in the usual reverse order. Each posting on the home page is perma-linked to these archive pages.

August 28, 2004
Another political self-test

Ann Althouse and Stephen Bainbridge posted their results from yet another political self-test.

It looked like fun, and it was. Here are my results, which should surprise none of the long-time readers of this blog:

Told ya.

For the data-crunchers in the audience, the numbers are as follows:






+1.2404 (+0.0747)



+1.4783 (+0.0890)

August 27, 2004
Shameless self-promotion

This week's golf column is a story about a family that built and opened a par-3 public golf course in the Cape Region.

Even non-golfers might enjoy reading about the learning curve for those embarking on a new business venture.

August 26, 2004
Concert night at the Rehoboth Bandstand

In many ways the City of Rehoboth Beach is an old, traditional beach resort.

Tonight we were treated to one of the nicer aspects of this part of the town’s character--an open air concert at the city’s bandstand at the boardwalk.

Tonight’s performers were the Jazz Ambassadors, a 19-piece ensemble of the U.S. Army Field Band.

About 700 people filled the long white benches facing the stage. Dozens more surrounded the seating area. The band gave the crowd a polished performance, with a wide variety of jazz standards.

The audience seemed especially pleased with two other parts of the show.

First, the band played short renditions of the anthems for each of the five branches, in this order—Air Force, Coast Guard, Marines, Navy, and Army.  As requested by the band leader, veterans in the crowd stood up during the playing of their own particular service's segment. Each group was fairly well represented among those in attendance.  

The entire crowd then stood up again, as Sergeant First Class Marva Lewis sang Lee Greenwood’s “God Bless the USA.

All in all it was a very enjoyable show. Check the band’s website for an upcoming performance near you. I highly recommend it.

August 25, 2004
Brings a whole new meaning to “gone fishin’”

Yesterday morning a passerby noted four fishing rods, a tackle box and related equipment set near a bridge over the Nanticoke River in Seaford, a small town in western Sussex County, Delaware. The fishing lines were still in the water, but there was no sign of their owner.

The authorities were duly contacted, and an intensive 90-minute search ensued, including boats and divers.


According to a News-Journal report, the police eventually decided that since they found no signs of foul play, perhaps the owner of the poles and fishing tackle had simply left them there.

Their second guess proved to be far more accurate than their first:

Seaford police announced today that they had found “safe and sound” the owner of some fishing poles, a tackle box and other items….

The 26-year-old Seaford-area man, whom police would not identify, apparently left the four rods and other equipment behind when he rode off with a “female friend” to spend some quality time, police said.

“We’re just glad he’s alive and with us,” Seaford police Capt. Gary Flood said. Police said the man does not face any charges.

I’m sometimes justly accused of not being up to speed on all things modern. Even so, I’m pretty sure this episode is not exactly “hooking up” as the term is now used. In any event, it certainly brings a new meaning to the phrase “gone fishin’”.

Wonder what kind of bait he was using.

The last paragraph in the story carried the mystery just a bit further:

Flood said the fisherman, who retrieved his rods and other equipment from police today, was a little embarrassed by the whole situation.


Indeed, even.

August 24, 2004
Most merchants of death are not libertarians

This week’s Tenth Circuit decision about Internet casket sales and the Oklahoma laws regulating funeral directors reminded me of Jessica Mitford. 

If she were alive today, the author of the bestseller American Way of Death would have smiled broadly as she read how the funeral industry uses its friends in the Oklahoma legislature to protect it from the modern free enterprise system.

On the other hand, I believe she would have ruefully agreed with the Circuit Court’s handling of the case, which applied fundamental principles of constitutional law. The decision is also a handy primer on the limitations of seeking to gain in the courts what one has not yet obtained through the political process.

Kim Powers, Dennis Bridges, and Memorial Concepts Online, Inc. wanted to sell caskets over the Internet without obtaining licenses for this purpose from the Oklahoma State Board of Embalmers and Funeral Directors.

They weren’t completely stymied—they didn’t need this license to sell caskets to out-of-state customers. On the other hand, the requirement to embalm 25 bodies, pass a licensing examination, and complete a specified 60-credit program of undergraduate training for the required funeral director’s license seemed a bit much for these would-be merchants. After all, they were only interested in selling funeral crates at whatever the market would bear.

They sued the Oklahoma board, arguing that the licensure requirements of the Funeral Services Licensing Act (FSLA) violated their rights under the Privileges and Immunities, Due Process, and Equal Protection clauses of the Fourteenth Amendment. Among other arguments, they pointed out that less than five percent of the required curriculum for licensure had anything to do with selling caskets.

Nonetheless, the District Court ruled in favor of the state board after a full trial. The plaintiffs appealed.

The appellate panel’s discussion is noteworthy on two levels. First, it applied the traditional rational basis test for analysis of the plaintiff’s claims against the Oklahoma regulatory scheme. Second, the panel reminded the parties of the constitutional limits on the court’s authority, as well as the general primacy of the Oklahoma legislature in adopting fundamentally anti-competitive laws.

Here are some extended, particularly noteworthy portions of Chief Circuit Judge Tacha's opinion:

Hornbook constitutional law provides that if Oklahoma wants to limit the sale of caskets to licensed funeral directors, the Equal Protection Clause does not forbid it [citations omitted]. ***

To satisfy the rational basis test, "the [FSLA] need only be rationally related to a legitimate government purpose." [citation omitted]. The Board argues that protecting casket purchasers, a particularly vulnerable group, constitutes a legitimate state interest. Plaintiffs concede this point, and we agree as well. [citation omitted]. Thus, as framed by the parties, the relevant question is whether the FSLA's licensure scheme is rationally related to the state's proffered consumer protection interest. ***

[R]ational-basis review does not give courts the option to speculate as to whether some other scheme could have better regulated the evils in question. [citation omitted]. In fact, we will not strike down a law as irrational simply because it may not succeed in bringing about the result it seeks to accomplish, [citations omitted], or because the statute's classifications lack razor-sharp precision, [citation omitted]. Nor can we overturn a statute on the basis that no empirical evidence supports the assumptions underlying the legislative choice. [citation omitted]. ***

These admonitions are more than legal catchphrases dutifully recited each time we confront an equal protection challenge to state regulation--they make sense. First, in practical terms, we would paralyze state governments if we undertook a probing review of each of their actions, constantly asking them to "try again." Second, even if we assumed such an exalted role, it would be nothing more than substituting our view of the public good or the general welfare for that chosen by the states. As a creature of politics, the definition of the public good changes with the political winds. There simply is no constitutional or Platonic form against which we can (or could) judge the wisdom of economic regulation. Third, these admonitions ring especially true when we are reviewing the regulatory actions of states, who, in our federal system, merit great respect as separate sovereigns.***

[F]avoring one intrastate industry over another is a legitimate state interest.… [W]e hold that, absent a violation of a specific constitutional provision or other federal law, intrastate economic protectionism constitutes a legitimate state interest.

We also note, in passing, that while baseball may be the national pastime of the citizenry, dishing out special economic benefits to certain in-state industries remains the favored pastime of state and local governments [note omitted]. While this case does not directly challenge the ability of states to provide business-specific economic incentives, adopting a rule against the legitimacy of intrastate economic protectionism and applying it in a principled manner would have wide-ranging consequences…. [B]esides the threat to all licensed professions such as doctors, teachers, accountants, plumbers, electricians, and lawyers, see, e.g., Oklahoma Statutes, title 59 (listing over fifty licensed professions), every piece of legislation in six states aiming to protect or favor one industry or business over another in the hopes of luring jobs to that state would be in danger. While the creation of such a libertarian paradise may be a worthy goal, Plaintiffs must turn to the Oklahoma electorate for its institution, not us.***

We do not doubt that the FSLA "may exact a needless, wasteful requirement in many cases. But it is for the legislature, not the courts, to balance the advantages and disadvantages of the [FSLA's] requirement[s]." [citation omitted]. Under our system of government, Plaintiffs "'must resort to the polls, not to the courts'" for protection against the FSLA's perceived abuses. [citations omitted].

As Winston Churchill eloquently stated: "[D]emocracy is the worst form of government except for all those other forms that have been tried." Winston Churchill, Speech at the House of Commons (Nov. 11, 1947). Perhaps the facts here prove this maxim. A bill to amend the FSLA to favor persons in the Plaintiffs' situation has been introduced in the Oklahoma House three times, only to languish in committee. See H.R. 1460 (Okla. 2003); H.R. 1057 (Okla. 2001); H.R. 1083 (Okla. 1999). While these failures may lead Plaintiffs to believe that the legislature is ignoring their voices of reason, the Constitution simply does not guarantee political success.

The plaintiffs’ effort to restore some semblance of free market capitalism is certainly admirable. They obviously still have their work cut out for them in the Oklahoma legislature.

Perhaps some updated muckraking about the funeral industry by an Oklahoma blogger or journalist could help. Mitford is gone now, but the scandalous behavior by some merchants of death continues.

August 23, 2004
Blogroll additions

I've added two new bloggers to the list on the home page, both of whom happen to be law professors--not that there's anything wrong with that.

Hugh Hewitt also works as a radio talk show host on the West Coast, with a conservative viewpoint that is also respectful of others' perspectives.

Ann Althouse teaches at the University of Wisconsin, and thus far her political leanings as expressed in her posts seem to match my own. Two of her recent essays are particularly good, in fact. Suddenly I don't feel quite so much like a norphan anymore.

August 23, 2004
A bit tetchy?

Janis Gore sent me a link to a story about a recent hearing in a Louisiana courtroom.

John Rawls represents the Forum for Equality Political Action Committee, seeking to block a state constitutional amendment to bar same-sex marriages.

Apparently he's also a bit tetchy:

When Mike Johnson, a lawyer for the Alliance Defense Fund, which represents conservative politicians and "pro-family" organizations, called Rawls a "homosexual," Rawls charged at Johnson. Rawls' voice rose and his face turned red, and he approached Johnson, pointed his finger at him and labeled him a "homophobe."

"I am not a homosexual," Rawls angrily told Johnson. "I am a gay man."

Rawls considers the term "homosexual" derogatory. "No one calls me the 'h' word," he said later.

Janis had a few questions about the incident:

When did the term 'homosexual' become derogatory? 'Homo' has never been a neutral word, but 'homosexual' is a descriptive term, like its siblings 'heterosexual', 'bisexual' and 'asexual', isn't it?

I did a little checking around here, which is a notably gay-friendly place.

The idea that "homosexual" would be considered derogatory was a mystery to the guys I asked.

Perhaps Mr. Rawls is a bit hypersensitive--or perhaps he was simply trying to engage in a bit of courtroom theatrics.

Either explanation makes sense to me, even if Rawls' allegation doesn't.


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Fritz Schranck
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