Sunday, May 12, 2013

A judge has fun ... and so can we

"Sober as a judge" is more than a cliche. 
Judges by and large have to be serious folk, given to writing long, pedantic, meticulously researched and nuanced and, let's face it, deadly boring legal opinions.
But every once in a while one of them gets the chance to let loose and when they do, it's great fun. 
Judge Fred Biery of the U.S. District Court for the Western District of Texas went to town on a ruling released April 29 denying a preliminary injunction to a strip club, 35 Bar and Grille LLC, in San Antonio, Texas, and well, the rest of this just writes itself.
The issue is whether a strip club is being denied its First Amendment rights by having to take out a license in order to allow its entertainers to appear topless.  The club was seeking a preliminary injunction against the city of San Antonio to prevent it from enforcing an ordinance to that effect.  Sit back and enjoy.
First, Judge Biery gave the title to his decision, which is unusual in itself: "The Case of the Itsy Bitsy Teeny-Weeny Bikini Top v.  the (More) Itsy Bitsy Teeny-Weeny Pastie."
The dispute over the ordinance, Judge Biery says, has "once again fallen into the court's lap."
The city of San Antonio wants exotic dancers employed by the plaintiffs to wear larger pieces of fabric to cover more of the female breast and "thus, the age-old question before the court, now with constitutional implications, is:  Does size matter?"
The judge then notes that the case arose out of an earlier decision known by some as the "Salom̩ order,"which derives from Salom̩'s dance of the seven veils in the palace of King Herod as noted in the Bible, Mark 6:16 Р28.
That dance, he observes in a footnote, resulted in "a fatal secondary effect for John the Baptist."
The plaintiffs "clothe themselves in the First Amendment seeking to provide cover against another alleged naked grab of constitutional power," the opinion says.
The city's enforcement of the ordinance would "strip [the club owners]of their profits," but the city asserts that businesses such as this contribute to reduce property values, violent crime, increase drug sales, prostitution and other sex crimes, and "therefore need to be girdled more tightly."
"Plaintiffs, and by extension their customers, seek an erection of a constitutional wall separating themselves from the regulatory power of city government," the judge says.
"While the court has not received amicus curiae ( friend of the court) briefs, the court has been blessed with volunteers known in South Texas as 'curious amigos' to be inspectors general to perform on-site visits at the locations in question," he says.
Here's where the judge really branches out from the issue at hand.  He observes that these curious amigos would have enjoyed far more the sight of "Miss Wiggles," an exotic artist "of physical self-expression even into her 80s" who died in October 2012 at the age of 90.
I'm not at all sure what Miss Wiggles has to do with this case but, what the hell.
"To bare, or not to bare, that is the question," Judge Biery says paraphrasing Shakespeare.
"The court doubts several square inches of fabric will staunch the flow of violence and other secondary effects emanating from these businesses," he says.
"Indeed, this case exposes the underbelly of America's Romanesque passion for entertainment, sex and money, sought to be covered with constitutional prophylaxis."  Really, judge!
"Alcohol, drugs, testosterone, guns and knives are more likely the causative agents than the female breast, proving once again that humans are a peculiar lot," the judge says alluding to a line from Harper Lee's To Kill a Mockingbird.
Then the judge delivers the coup de grace: "Should the parties choose to string this case out to trial on the merits, the court encourages reasonable discovery intercourse as they navigate the peaks and valleys of litigation, perhaps to reach a happy ending."  Ooh, naughty.
In denying the preliminary injunction, Judge Biery makes it clear that there is no First Amendment violation involved in a municipal ordinance that seeks to regulate strip clubs and that the club's pursuit of the case is virtually certain to end unhappily for it.
As an addendum, the judge notes that he has supplied an appendix with the entire history of the case "for those interested in a lengthy exposition, those who wish to appeal and those who suffer from insomnia."
Amen to that.