Constitution

7th Circuit: LGBTQ Discrimination IS Sex Discrimination

It’s not definitive, but this is a huge step. The Seventh Circuit ruled 8-3 that a woman who was denied a job because she was a lesbian had a cause of action under Title VII.  Title VII is the civil rights law which prevents workplace discrimination on the basis of sex, race, color, national origin, and religion. It generally applies to employers with 15 or more employees, including federal, state, and local governments. Congress has frequently considered amending Title VII to add the words “sexual orientation” to the list of prohibited characteristics, yet it has never done so.

In an opinion which many critics will call “legislating from the bench”, the 7th Circuit majority in Hively v. Ivy Tech Community College of Indiana, ruled that Title VII discrimination is applicable because “it would require considerable calisthenics to remove the ‘sex’ from ‘sexual orientation. ‘”  This is undeniably true.  If Ms. Hively had been a man with a preference for women, there would have been no issue with her being hired.  But she is a woman.  Therefore, this has to do with gender.

The dissent argues, predictably:

[Plaintiff’s attorney] is advancing a creative new legal argument for reinterpreting Title VII, deploying the comparative method not as a method of proof (its normal and intended function) but as a thought experiment with the end of imbuing the statute with a new meaning that it did not bear at its inception.

That’s a rather typical conservative judicial interpretation (unless we are talking about the word “arms” in the Second Amendment).

Anyway, this is a big step forward, and I expect that the Supreme Court will visit this soon.  Here is the full opinion:

The HB2 Repeal: Is It As Bad As Everyone Says?

Well, I find myself in the awkward position of disagreeing with friends, colleagues, and organizations that I respect (like the ACLU, of which I have been an active member for 24 years). That’s not fun. The issue? House Bill 142.

For those living under a rock, HB142 is the bill passed by the North Carolina General Assembly and signed into law by Governor Cooper yesterday. It attempts to repeal HB2 — the heinous “transgender bathroom bill” —  and more importantly (from some people’s perspective) appease the NCAA which has threatened to ban North Carolina from holding any tournaments due to HB2.

To read some of the headlines, you would think HB142 lines up transgender people and shoots them. “The HB2 “Repeal” Bill Is an Unmitigated Disaster for LGBTQ Rights and North Carolina” screams Slate. Reverend Barber calls it “an insult to civil rights“.  The ACLU says: “there is no repeal of the anti-trans HB2, only more discrimination“.

Really? There’s actually been NO repeal AT ALL?  There’s MORE discrimination?  What am I missing?  Am I the one who is crazy?

Quite possibly. But right now, I honestly believe HB 142 is a fairly decent compromise.  And it’s quite possible that the resistance may be overplaying this victory by casting as a loss.

Those who do this are wrong in my view.  HB142 is not HB2.0.

Let’s get a few things out of the way:

First, this was always going to be a compromise bill. Republicans rule the North Carolina General Assembly.  So if you expected a civil rights bill ON TOP OF a repeal of HB2, then somebody sold you a lie.  And it wasn’t Governor Cooper. Now, it is perfectly reasonable to demand that the law protect transgender people (as well as gay, bisexual, queer, etc. people). *I* demand that. But those things do not come in a day.  They just don’t. We’re STILL working on racial inequality for crying out loud.  The exercise here — with this bill — was not to get the law to protect transgender people, but to get the law to stop discriminating against them.  So if you are in the “all or nothing, today” camp, stop reading, because I practice the art of the possible, and nothing I say going forward will please you (in fact, it will likely infuriate you).

Secondly, to those who say that HB 142 doesn’t do enough — well, of course not. Again — it is a compromise bill. I have no reason to think that Roy Cooper or Senator Jackson or the others did not hammer out the best deal possible.  Again, it wasn’t intended to resolve the issue of transgender rights for all time.

Finally, I personally could not give a damn about the NCAA and where tournaments are held. I think the loss of jobs to the state are, and should be, a concern.  Same with the loss of state “prestige”. But the bottom line for me is civil rights. For me, that overshadows everything.  That’s the yardstick I am using here to measure the success, or lack thereof, of HB142 in comparison to HB2. So please don’t question my motive. I want what the ACLU and the LGBTQ community and all lovers of civil rights want – full stop, period.

That said, HB2 is dead. Can I get an “amen”?

Bueller?

Bueller?

If you read some of these articles (or scan the headlines) you would think HB2 is not dead, or that it had been supplemented with worse stuff.  So let’s break this down and discuss what HB142 — now the law — actually does.  Because it’s short, I’ll insert the entire text:

Okay, so is HB2 repealed? Yes. It’s right there in English.  Section One. Statutory Laws 2016-3 — which is HB2 — is repealed.  Click the link. Read what HB2 was.  It was a lot!  It’s gone now.

So let’s move to the NCAA gripes, because it was in plain non-legalese English, and it will help explain what is no longer.  Here, specifically, is the reason the NCAA singled out North Carolina for the proposed ban (from the NCAA website):

The board stressed that the dynamic in North Carolina is different from that of other states because of at least four specific factors: 

  • North Carolina laws invalidate any local law that treats sexual orientation as a protected class or has a purpose to prevent discrimination against lesbian, gay, bisexual or transgender individuals. 
  • North Carolina has the only statewide law that makes it unlawful to use a restroom different from the gender on one’s birth certificate, regardless of gender identity.  
  • North Carolina law provides legal protections for government officials to refuse services to the LGBT community. 
  • Five states plus numerous cities prohibit travel to North Carolina for public employees and representatives of public institutions, which could include student-athletes and campus athletics staff. These states are New York, Minnesota, Washington, Vermont and Connecticut. 

The second and third factors are gone. HB142 wiped them out with the stroke of a pen.  The fourth factor relies on those other cities, but they will presumably permit travel to North Carolina now.

That’s not nothing.  That’s something.  That’s a victory.  Can we acknowledge that?

To be sure, it returns us to the status quo — i.e., the time Charlotte’s ordinance protecting those with non-conforming gender identity. Is the government working to protect the transgender community from discrimination?  Nope.  But now the government is not doing the actual discrimination itself, and, yes, that is big.

It’s like desegregating the public water fountains, even though the business-owned lunch counters remain segregated.  It’s NOT “nothing”; it’s NOT “worse”. It’s an improvement.

What about the NCAA’s first factor and the argument that HB142 does not allow Charlotte and other communities to pass laws protecting the transgender community (at least until 2020)?  I shake my head at that argument, and this is where I think most people have it wrong. We shouldn’t WANT local municipalities to have the power to “enact or amend an ordinance regulating private employment practices or regulating private public accommodation”.

Why not?

Because hundreds of communities in North Carolina will take the opportunity to stick it to the LGBTQ community.

What’s the point of repealing HB2 if Apex, North Carolina (for example) can turn around and pass its own version next week?  You see, not every community in North Carolina is as enlightened as Charlotte or Raleigh or Asheville.  In fact, most aren’t (drive through East Carolina one day).  And LGBTQ people are everywhere in North Carolina. Taking legislative power away from local municipalities was a feature, not a bug.

Also, it is better off if the battlefield is the state legislature — ONE state legislature — rather than hundreds of cities, town, incorporated settlements, etc.  The “resistance” lacks the resources to fight the transgender discrimination issue in every NC municipality and win. Leaving invidious prejudicial treatment to the whims of local legislatures would allow pockets of prejudice to exist for decades (see, for example, the school district in Mississippi which finally became racially desegregated this month!)

What happens in 2020, when the prohibition is lifted?  In truth, it matters little.  The provision to kick the can down the road wasn’t meant to postpone justice.  And it certainly wasn’t meant to postpone injustice.  It just acknowledges reality — that no matter what the state legislature does, it will end up in the courts, as everything does with civil rights.

Put another way — you’re not going to end discrimination against the transgender community completely until a court says so. End of story. You can’t legislate “equal protection under the law” because it is a constitutional/legal issue, not a political one.  And by 2020, these issues will have been worked out.

Yes, it is true that repealing HB2 probably killed North Carolina lawsuits against HB2 (rendered them moot).  But there are plenty of other lawsuits out there, most notably, Grimm v. Gloucester County School Board, regarding the 17 year old transgender male student in a Virginia high school. Sent back down to the Fourth Circuit from the U.S. Supreme Court a few weeks ago, it is likely to go back up as soon as the Fourth Circuit decides (both sides are likely to appeal).  And the outcome there will govern what happens in North Carolina — mostly likely in 2019.

So what do we have to be upset about?  HB2 is no more. HB2-like discrimination cannot sneak in through the back door via local legislatures.  And everything is on hold until the courts resolve this, which they were going to do anyway.  It hasn’t slowed down the litigation track.

“Justice delayed is justice denied” is a maxim used by Martin Luther King, Jr., but dates back to William Penn and even the Magna Carta. I wholly acknowledge that transgender people have every reason to be anxious and upset that the guarantee of their civil rights were not met on March 30, 2017.  I don’t know who or what led them to believe the a Democratic governor in a mostly-conservative state could deliver them their rightful legal protections in one fell swoop.

But if they are angry, then I say good.  They need to be; everyone needs to be.  But nobody should feel defeated by HB142, as many do.  The system works, albeit slowly, and if you don’t remind people every once in a while of their victories, then cynicism wins.  And when cynicism wins, corruption and prejudice is not far behind.

This goes in the win column, and we need to remain vigilant. THAT’S my point.  I ask permission to revise and extend my remarks as needed.

Redstate’s Patterico’s Analysis of the 9th Circuit Decision Against Trump

Don’t normally quote from the conservative Redstate blog, and I rarely agree with Patterico (the author) on anything.  But this analysis is so good — so spot on — that I am reprinting it in full:

As you have no doubt heard, the Ninth Circuit today issued an opinion upholding the District Court’s TRO halting much of Trump’s order on immigration. This post analyzes the decision, which can be read here. Throughout, I’ll grade my own previous predictionsabout the ruling.

My overall impression is that this is a sound legal ruling — and that Donald Trump is personally to blame for it. By allowing Steve Bannon & Co. to write the order in a sloppy and overbroad manner, and further allowing them to decide that it applied to green card holders, Trump issued an the order that was bound to fail.

Perusing Twitter tonight, I see that many people who support the policy behind the order (as I do), but who have not followed the legal arguments closely, are saying this is just another leftist Ninth Circuit decision. But the order is a unanimous “per curiam” (through the court) ruling. It was joined by a judge appointed by George W. Bush who, at oral argument, expressed skepticism towards the idea that the order was motivated by religious bias, and seemed receptive to the argument that these countries might pose a threat.

The Twitter lawyers point out that this was not a ruling on the merits — and that’s right . . . but the merits still factored into the decision. A subtle point — brought up in the oral argument but missed by many observers — is that once the District Court entered the injunction, the burden shifted to the Government to show on appeal that it was likely to win in the trial court. The Court held that the Government had failed to make that showing. This portion of the ruling, then, does relate to the merits. The Court also held that the Government failed to show irreparable injury, since the TRO put the U.S. back in the same state of affairs that had existed for years.

According to the opinion, the executive order’s principal potential flaw was that it may have deprived a substantial number of people of due process, in three ways (the following paragraph describes the states’ arguments, which the Government failed to rebut for purposes of this appeal):

First, section 3(c) denies re-entry to certain lawful permanent residents and non-immigrant visaholders without constitutionally sufficient notice and an opportunity to respond. Second, section 3(c) prohibits certain lawful permanent residents and non-immigrant visaholders from exercising their separate and independent constitutionally protected liberty interests in travelling abroad and thereafter re-entering the United States. Third, section 5 contravenes the procedures provided by federal statute for refugees seeking asylum and related relief in the United States.

The decision to interpret the order as applying to lawful permanent residents was reportedly made by Trump advisers Steve Bannon and Stephen Miller. This was clearly the most troubling aspect of the order to the judges — as well as the aspect of the order that stood out to most objective observers as the dumbest part of the order. As I said in my analysis of the oral argument: “I think even Judge Clifton would be on board with staying the executive order to the extent it applies to LPRs [lawful permanent residents].” What I didn’t predict outright was that Judge Clifton would find this enough to join an opinion upholding the entire TRO; I had expected that he would file a concurring opinion agreeing that the TRO was appropriate as applied to LPRs, but only as to LPRs.

The Government argued that the issue of the application of the executive order to LPRs was moot, because the White House counsel had interpreted the order as not covering LPRs. But the court was not convinced, noting that the White House counsel is not the President — and, since the Administration had given so many contradictory statements on this point, nobody can be certain that they won’t apply it to green card holders again:

[I]n light of the Government’s shifting interpretations of the Executive Order, we cannot say that the current interpretation by White House counsel, even if authoritative and binding, will persist past the immediate stage of these proceedings

Basically, the court said the order is clearly illegal in denying re-entry to LPRs and non-immigrant visa holders, and they aren’t going to rewrite the order (or let the White House counsel rewrite it) to conform to the law. That’s the President’s job. The court said that the Government’s different proposals for limiting the scope of the TRO still resulted in potential due process violations.

The lack of due process for LPRs was the central aspect of the opinion, and it was completely avoidable. The fault lies with Donald Trump.

As to the argument that Trump was targeting Muslims, the Court’s language seemed carefully crafted to maintain the unanimous nature of the opinion. I predicted there were two votes for a finding of possible religious discrimination, based on Trump’s repeated statements during the campaign that he wanted a Muslim ban — but Judge Clifton was clearly skeptical of this claim. The Court dealt with this by saying: “The States’ claims raise serious allegations and present significant constitutional questions” (language clearly inserted by Judges Canby and Friedland) but refused to use this as a ground to uphold the TRO, instead reserving the issue for later, after further litigation in the District Court (an evident concession to Judge Clifton to get him on board with this opinion).

This means that Donald Trump’s mouthing off about a Muslim ban wasn’t the reason for today’s decision — but it could still have legal consequences down the line.

In other aspects more of interest to lawyers than others, the court (as predicted) found standing based on the states’ proprietary interests, and treated the injunction as an appealable preliminary injunction rather than a TRO proper, because of the length of the briefing schedule. (These are also aspects I predicted correctly based on the oral arguments.)

In summary, this is a solid legal opinion and I don’t see it being reversed by the Ninth Circuit en banc or by the U.S. Supreme Court. The judges did their jobs and they did them well. They won’t get a lot of credit for this from political partisans, but they’ll get it from me.

Yup.

Redstate by the way is now a conservative blog in exile. In a world of Brietbarts and Infowars, it remains a bastion of logical reasoned conservatism.  It is a credible opposition to the progressivism that I espouse — with emphasis on the word “credible”.

Here, for posterity’s sake, is the full opinion:

Former NC Governor Pat McCrory Needs Protection From Words

News & Observer:

Does former North Carolina Gov. Pat McCrory need protection? Do all current and former public officials? At least one state senator thinks so.

After a video was posted on Facebook Friday showing a group of people following McCrory during a trip to Washington, D.C., for inaugural weekend, chanting “Shame!” and calling him a bigot, Sen. Dan Bishop of Charlotte says he’ll introduce legislation to protect public officials.

The proposed legislation would “make it a crime to threaten, intimidate, or retaliate against a present or former North Carolina official in the course of, or on account of, the performance of his or her duties,” Bishop said.

“Because lines are being crossed,” Bishop, a Republican who represents the 39th District in the North Carolina Senate, wrote in an email from his Senate campaign account.

Bishop was one of the sponsors of House Bill 2, or “the bathroom bill” which McCrory signed into law. The bill was criticized for nullifying local non-discrimination ordinances statewide, directing transgender people to use restrooms and locker rooms matching the gender on their birth certificate in government-owned buildings and initially revoking the right to sue in state court for discrimination.

Bishop calls the group of people of indeterminate number “a chanting mob” and “ubiquitous leftist rioters” and wonders whether the “mob fell upon the former governor by coincidence or if they stalked him.”

Bishop said such behavior should come with a five-year prison sentence and said he’ll introduce the legislation to make it so in North Carolina, similar to an ordinance in the District of Columbia.

“So should it be in North Carolina,” he wrote. “This is dangerous. Jim Hunt, Bev Purdue and other governors never faced riotous mobs in their post-service, private lives, without personal security.”

Bishop said he also will urge his fellow legislators “to take other appropriate steps to guarantee the personal safety of Gov. McCrory by all means necessary.”

This is the video:

Now, whatever you think of the McCrory or the protesters, there is this little thing called the First Amendment.  But I won’t lecture here.  This State Senator ought to know better.

Does Korematsu Provide Precedent For A Muslim Registry?

No.

No, it doesn’t.  Not even a close call.

Let’s just all get on the same page.

This is happening:

And the obvious question is…. would it be constitutional for the government to require citizens to register based on their religion?

The OBVIOUS answer should be NO, and the reason most people instinctively know it would be unconstitutional is to do a thought experiment: substitute “Christian” for “Muslim” and see how that flies.

I’m going to set aside the obvious invidiousness of the proposed registry, as well as the obvious difficulties in enforcing registration.  Instead, I’m just going to focus on Korematsu v. United States, 323 U.S. 214 (1944), the case that Trump surrogates are citing as “precedent”.

Korematsu was the case involving Japanese-American internment during World War II.  Roosevelt ordered that George Takei and his family and other Japanese-Americans leave their jobs, friends, businesses, etc. and report to “camps” for the duration of the war.  These were American citizens, living on the West Coast, of Japanese descent.  It came about as the result of a presidential executive order — Executive Order No. 9066 to be exact.

Fred Korematsu was born in Oakland, California, in 1919, the third of four sons to Japanese parents Kotsui Aoki and Kakusaburo Korematsu who immigrated to the United States in 1905.  When the internment order came down, he refused to comply and went into hiding in the Oakland area. He was arrested on a street corner in San Leandro on May 30, 1942, after being recognized as a “Jap”.  He was tried and convicted of violation of a military order – specifically, the military order for internment given under the authority of Executive Order 9066.

That military and executive orders were challenged and the US Supreme Court upheld the internment of Japanese-Americans, with three dissents.

Korematsu is still good law, so I revisited it. Why did the Supreme Court find such an order to be constitutionally valid?

One reason was precedent.  One year earlier, in a case called Hirabayashi v. United States, the Supreme Court upheld a curfew which applied only to the Japanese.

But addressing the race issue, the majority wrote only this:

It is said that we are dealing here with the case of imprisonment of a citizen in a concentration camp solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. Our task would be simple, our duty clear, were this a case involving the imprisonment of a loyal citizen in a concentration camp because of racial prejudice. Regardless of the true nature of the assembly and relocation centers — and we deem it unjustifiable to call them concentration camps, with all the ugly connotations that term implies — we are dealing specifically with nothing but an exclusion order. To cast this case into outlines of racial prejudice, without reference to the real military dangers which were presented, merely confuses the issue. Korematsu was not excluded from the Military Area because of hostility to him or his race. He was excluded because we are at war with the Japanese Empire, because the properly constituted military authorities feared an invasion of our West Coast and felt constrained to take proper security measures, because they decided that the military urgency of the situation demanded that all citizens of Japanese ancestry be segregated from the West Coast temporarily, and, finally, because Congress, reposing its confidence in this time of war in our military leaders — as inevitably it must — determined that they should have the power to do just this. There was evidence of disloyalty on the part of some, the military authorities considered that the need for action was great, and time was short. We cannot — by availing ourselves of the calm perspective of hindsight — now say that, at that time, these actions were unjustified.

Basically, they are saying — “we’re at war”.

The dissent by Justice Roberts was having none of it:

This is not a case of keeping people off the streets at night, as was Hirabayashi v. United States,320 U. S. 81, nor a case of temporary exclusion of a citizen from an area for his own safety or that of the community, nor a case of offering him an opportunity to go temporarily out of an area where his presence might cause danger to himself or to his fellows. On the contrary, it is the case of convicting a citizen as a punishment for not submitting to imprisonment in a concentration camp, based on his ancestry, and solely because of his ancestry, without evidence or inquiry concerning his loyalty and good disposition towards the United States. If this be a correct statement of the facts disclosed by this record, and facts of which we take judicial notice, I need hardly labor the conclusion that Constitutional rights have been violated.

And that is essentially the difference.  We’re not at war with the Muslims — there has been no declaration of Congress to that effect.  Furthermore, there is no “military urgency” now like there was following the bombing of Pearl Harbor (it is more than 15 years after 9/11).  Two good reasons right there.

Then you have something that you didn’t have in Korematsu, which was a case about heritage.  The proposed Muslim ban isn’t about heritage; it is about religion.  “Muslim”, after all, simply means an adherent to the religion of Islam.  Islam knows no national origin or skin color.  Cassius Clay, a black American, didn’t come from another country.  Yet he was a Muslim (which he became Muhammad Ali).

So if this is registry of religious beliefs, — welcome First Amendment.

There’s simply on way in hell this Supreme Court would be cool with registering Muslims.  It would be unanimously shot down, even without overturning Korematsu.

In fact, that would be a nice way to start the Trump presidency.  With a 8-0 loss in the Supreme Court.

Judge Roy Moore Is Toast

Alabama Supreme Court Chief Justice Roy Moore has been suspended from the bench for telling probate judges to defy federal orders regarding gay marriage.

The Alabama Court of the Judiciary (COJ) issued the order Friday suspending Moore from the bench for the remainder of his term.

“For these violations, Chief Justice Moore is hereby suspended from office without pay for the remainder of his term. This suspension is effective immediately,” the order stated.

The court found him guilty of all six charges of violation of canon of judicial ethics. Moore’s term is to end in 2019. Gov. Robert Bentley will name a replacement for Moore.

In its order, the COJ wanted to make sure people understood what Moore’s case was and was not about.

“At the outset, this court emphasizes that this case is concerned only with alleged violations of the Canons of Jucial Ethics,” the COJ states. “This case is not about whether same-sex marriage should be permitted: indeed, we recognize that a majority of voters in Alabama adopted a constitutional amendment in 2006 banning same-sex marriage, as did a majority of states over the last 15 years.”

The COJ also stated it is also not a case to review or to editorialize about the United States Supreme Court’s split decision to declare same-sex marriage legal nationwide.

In its 50-page order, the COJ stated it did not find credible Moore’s claim that the purpose for the Jan. 6 order was “merely to provide a ‘status update’ to the state’s probate judges.”

“We likewise do not accept Chief Justice Moore’s repeated argument that the disclaimer in paragraph 10 of the January 6, 2016, order – in which Chief Justice Moore asserted he was ‘not at liberty to provide any guidance … of the effect of Obergefell on the existing orders of the Alabama Supreme Court’ – negated the reality that Chief Justice More was in fact ‘ordering and directing’ the probate judges to comply with the API orders regardless of Obergefell or the injunction in Strawser (federal case in Alabama).”

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Breaking: Big Victory For Voter Rights — No Voter ID In Upcoming NC Elections

NC voter ID law will NOT be enforced in fall election after the U.S. Supreme Court denies stay request (in a 4-4 split — obviously, had Scalia lived, it would have been a loss for voting rights advocates, but he didn’t so……)

The stay was a request by Republican Gov. Pat McCrory and state officials to delay a permanent injunction blocking provisions in a 2013 voting law. The 4th U.S. Circuit Court of Appeals struck down several parts of the law last month, saying they were approved by legislators with intentional bias against black voters more likely to support Democrats.

The Supreme Court decision means voters won’t have to show one of several qualifying photo IDs when casting ballots in the presidential battleground state. Early voting also reverts to 17 days.

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Is This The End Of The Line For Judge Roy Moore?

Alabama Supreme Court Chief Justice Roy Moore is set for a hearing at 1:30 p.m. (2:30 EST) today on charges he violated Alabama’s ethical standards for judges.

Moore is asking the Alabama Court of the Judiciary to dismiss the ethics complaint filed by the state’s Judicial Inquiry Commission. The Judicial Inquiry Commission is asking for a summary judgment against Moore and his removal, instead of moving the matter to a trial.

The JIC alleges Moore’s January 2016 order and his conduct surrounding it encouraged Alabama’s judges to disregard clear federal law.

Moore issued an order in January to Alabama’s probate judges, concerning same-sex marriage. Moore told the probate judges a ban on issuing marriage licenses to same-sex couples was still in effect until the Alabama Supreme Court issued a ruling.

But Moore’s order came more than six months after the U.S. Supreme Court in its Obergefell decision had ruled state bans on same-sex marriage were unconstitutional.

In a response filed with the Alabama Court of the Judiciary, Moore’s attorneys argue he was simply following the law and established procedure in his order, not defying the Supreme Court.

A thematic deception that infuses the JIC brief is that the Chief Justice ordered the probate judges that they ‘had a duty, under Alabama law, not to issue same-sex marriage licenses,’” the filing argues. “The Chief Justice, however, did not on his own initiative direct the probate judges to follow Alabama marriage law.

“Instead he instructed them that ‘[u]ntil further decision by the Alabama Supreme Court’ they were still under a state-court injunction issued by that Court. He neither endorsed nor criticized that injunction. Because consideration of the effect of Obergefell on that injunction had been pending before the Alabama Supreme Court for six months, the Chief Justice considered it prudent to remind the probate judges that the injunction still remained in effect pending its review.”

Moore was removed from the bench as chief justice in 2003 after refusing a federal court order to remove a 10 Commandments monument from the state judicial building.

Moore was re-elected chief justice in 2012.

Local news earlier:

A very late update from AL.com:

Suspended Alabama Supreme Court Justice Roy Moore will go on trial next month on judicial ethics charges after the Alabama Court of the Judiciary late Monday issued an order that denied Moore’s request to dismiss the charges.

The court, in a brief one-page order, also denied a motion by the Alabama Judicial Inquiry Commission that sought an order removing Moore from the bench without a trial.

Breaking: 4th Circuit Overturns Lower Court; Finds That GOP “Intentionally” Passed “Discriminatory” Voting Rights Law

The United States Court of Appeals for the Fourth Circuit invalidated North Carolina’s stringent new voting restrictions, holding that the law violates both the United States Constitution and the Voting Rights Act. The North Carolina measure, the Fourth Circuit held, has a discriminatory impact on black voters, impermissibly burdening their voting rights under the VRA. More boldly, the court also held that the law was enacted with discriminatory intent, designed by the Republican legislature to curb black voting rights in violation of the 14th Amendment’s Equal Protection Clause. This dual finding of discriminatory impact and intent makes the Fourth Circuit’s decision the boldest judicial rejection of voting restrictions in years.

As the court explains, North Carolina passed its omnibus voting bill, SL 2013-381, almost immediately after the Supreme Court freed the state’s voting laws from federal “preclearance”—meaning that after nearly 50 years under supervision, the state was finally free to change voting laws without federal oversight. The legislature promptly “requested data on the use, by race, of a number of voting practices.” And “upon receipt of the race data, the General Assembly enacted legislation that restricted voting and registration in five different ways, all of which disproportionately affected black voters.” The new law created draconian requirements for valid voter ID, eliminating those IDs most commonly used by black voters; cut back early voting and killed same-day registration; eliminated preregistration for teenagers; and eliminated out-of-precinct voting for voters who accidentally showed up at the wrong precinct in the correct county.

Every single one of these restrictions disproportionately burdened black voters; indeed, as the Fourth Circuit writes, SL 2013-381 seemed to “target African Americans with almost surgical precision.” (Meanwhile, there is essentially no evidence that voter fraud ever occurs in North Carolina.) The evidence that the legislature enacted SL 2013-381 for precisely this purpose—to hamper black voting rights—is almost overwhelming. Indeed, the state even acknowledged that it had eliminated one early voting day, a Sunday, because it was a traditional “souls to the polls” day, when black voters were provided transportation from church to the polls. “Counties with Sunday voting in 2014 were disproportionately black” and “disproportionately Democratic,” the legislature said—so, in response, it did away with one of two days of Sunday voting. This, the Fourth Circuit writes, is “as close to a smoking gun as we are likely to see in modern times”:

The State’s very justification for a challenged statute hinges explicitly on race—specifically its concern that African Americans, who had overwhelmingly voted for Democrats, had too much access to the franchise.

But really, the North Carolina legislature littered its voting law with almost comically obvious smoking guns. Black voters, the court explains, are also more likely to utilize same-day registration, preregistration, and out-of-precinct voting. The legislature knew this when it enacted SL 2013-381; it had “requested a racial breakdown” of different voting methods, and, as the Fourth Circuit notes, discovered:

The legislature’s racial data demonstrated that, as the district court found, “it is indisputable that African American voters disproportionately used [same-day registration] when it was available.” … [I]n-person assistance likely would disproportionately benefit African Americans. SL 2013-381 eliminated same-day registration.

And on and on it goes—each restriction, the court persuasively explains, was crafted to crack down on voting methods favored by black voters. These “seemingly irrational restrictions unrelated to the goal of combating fraud,” the Fourth Circuit writes, can only be explained by discriminatory intent. And the legislature’s highly suspect behavior in enacting SL 2013-381—rushing it through, on party lines, as soon as it was freed of federal oversight—raises serious constitutional red flags. “Indeed,” the court writes, “neither this legislature—nor, as far as we can tell, any other legislature in the Country—has ever done so much, so fast, to restrict access to the franchise.”

As a result of the law’s discriminatory intent and impact, the Fourth Circuit concludes, each of its central provisions must be invalidated under the Equal Protection Clause and the VRA.

It is a very hard rebuke to the lower court.  Now, I know Judge Schroeder, the lower court judge who found that there was no discrimination intended when North Carolina passed its new voter laws.  He is a thorough and competent judge, and certainly no racist.  But not being a Southerner, he just doesn’t see certain things which the older Southern gentlemen of the Fourth Circuit did see.  As the Fourth Circuit wrote, “the [lower] court seems to have missed the forest in carefully surveying the many trees.  This failure of perspective lef the court to ignore critical facts bearing on legislative intent, including the inextricable link between race and politics in North Carolina.”

This is a HUGE win for North Carolina (the people, not the current government) with national repercussions.

It will no doubt go to the U.S. Supreme Court, where, with a 4-4 split, it will probably be upheld.

The 83 page opinion is below:

SCOTUS Strikes Down Oppressive Abortion Restrictions

This morning, the Supreme Court struck down parts of a restrictive Texas law that could have reduced the number of abortion clinics in the state to about 10 from what was once a high of roughly 40.

The 5-to-3 decision was the court’s most sweeping statement on abortion rights since Planned Parenthood v. Casey in 1992. It applied a skeptical and exacting version of that decision’s “undue burden” standard to find that the restrictions in Texas went too far.

The decision on Monday means that similar restrictions in other states are most likely also unconstitutional, and it imperils many other kinds of restrictions on abortion.

Justice Stephen G. Breyer wrote the majority opinion, joined by Justices Anthony M. Kennedy, Ruth Bader Ginsburg, Sonia Sotomayor and Elena Kagan. Chief Justice John G. Roberts Jr. and Justices Clarence Thomas and Samuel A. Alito Jr. dissented.

The decision concerned two parts of a Texas law that imposed strict requirements on abortion providers. It was passed by the Republican-dominated Texas Legislature and signed into law in July 2013 by Rick Perry, the governor at the time.

One part of the law requires all clinics in the state to meet the standards for ambulatory surgical centers, including regulations concerning buildings, equipment and staffing. The other requires doctors performing abortions to have admitting privileges at a nearby hospital.

“We conclude,” Justice Breyer wrote, “that neither of these provisions offers medical benefits sufficient to justify the burdens upon access that each imposes. Each places a substantial obstacle in the path of women seeking a previability abortion, each constitutes an undue burden on abortion access, and each violates the federal Constitution.”

I’m not surprised by the outcome, nor am I surprised by swing justice Kennedy joining the “liberals” on the court.  Frankly, the Texas restrictions were NOT intended to support women’s health.  If you saw who proposed those restrictions (longtime Texas anti-abortion legislators) and listened to their rhetoric, “health of women” was a sham rationale.  Their real objective was to make abortion clinics so regulated that they could not afford to make the required changes, and eventually close down.  In fact, to date, twenty abortion clinics have closed down under those regulations.

So, yes, a victory, and it would have been a victory even if Scalia was alive and on the court.  But it does underscore the importance of the election and who gets to pick the next justices.

Bad News For McCrory And HB2 Lovers

After the Fourth Circuit Court of Appeals rejected a request Tuesday to reconsider a previous ruling affirming the rights of a Virginia transgender student, Gov. Pat McCrory’s defense of HB2 has a hit a major road block.

The intermingling of the two cases in question—the pivotal Virginia case (G.G. v. Gloucester County School Board) decided in favor of transgender student Gavin Grimm, and McCrory’s HB2 defense, McCrory v. United States—charts a course for the future demise of HB2’s bathroom provision.

Here are the basic facts governing McCrory’s case in defense of HB2:

1) North Carolina falls within the Fourth Circuit’s jurisdiction, which means the Virginia ruling siding with a transgender student’s right to use their bathroom of choice applies to the Tar Heel State.

2) Grimm’s case was decided on the basis of sex discrimination prohibitions included in Title IX of the Education Amendments of 1972, a federal law that McCrory’s lawsuit against the federal government fails to address, writes Ian Millhiser.

The Justice Department’s letter concludes that HB2 violates three separate federal laws, Title VII, the Violence Against Women Reauthorization Act, and Title IX of the Education Amendments of 1972. McCrory’s complaint claims that the state is not violating the first of these two laws, but it is conspicuously silent regarding Title IX. […] McCrory’s silence regarding Title IX may be an acknowledgement that any effort to defend his states actions under Title IX is doomed.

3. Now that the Fourth Circuit has declined to rehear G.G., the only other avenue for reversal of the ruling is the Supreme Court, which seems unlikely to overturn it—if the justices even decide to take up the question.

Imprisoned Bundy Brothers Are Upset Their Second Amendment Rights Have Been Taken Away

Ryan Bundy, son of Cliven Bundy, was one of several participants in the month-long standoff at Malheur National Wildlife Refuge back in January, which ended up with one dead.  Ryan and his co-horts, which include his brother Ammon, all surrendered to federal authorities and are now in prison awaiting trial.

And apparently, they are not happy in prison.  According to a report (PDF), Bundy writes:

My rights are being violated. My right to life is being violated. All of my First Amendment rights are being violated. My right to freedom of religion is being violated. I cannot participate in religious activities and temple covenants, and wear religious garments. I could wear them at Henderson, but MCDC is depriving me of the right to wear them. My right to freedom of speech is being hampered by monitoring and recording. My right to freedom of assembly is being violated; I am not allowed to see my brother and move about.

Yesterday, I attempted to discuss these issues with the U.S. Marshals, and they said that these were simply the jail rules. I asked them specifically about if there was any reason for the ‘keep separate’ orders. In Henderson, my brothers and father were housed together. Up here, they make efforts to keep us separate. This violates my right to freedom of assembly. My Second Amendment rights are being violated. I never waived that right.

Yyyyeah.  They don’t let you keep guns in prison, Ryan.  You probably should have thought of that before you decided to seize federal property and claim it as your own.

Confrontation Looms

Charlotte Observer:

Republican state leaders were in no hurry Thursday to respond to the Obama administration’s determination that North Carolina is discriminating against transgender people – and didn’t even agree on whether to adhere to a Monday deadline.

House Speaker Tim Moore said Thursday that legislators won’t meet the Department of Justice’s Monday deadline to declare that House Bill 2 will not be enforced.

The department sent state leaders a letter Wednesday saying that the law violates the Civil Rights Act and Title IX of the Education Amendments of 1972 – a finding that could jeopardize billions in federal education funding. Those laws ban employment discrimination and discrimination in education based on sex.

“We will take no action by Monday,” Moore told reporters Thursday. “That deadline will come and go. We don’t ever want to lose any money, but we’re not going to get bullied by the Obama administration to take action prior to Monday’s date. That’s not how this works.”

Actually, it is how it works.

Moore said state leaders are trying to determine their next steps. “Right now we’re talking with our attorneys to see what our options are,” he said. “We’re going to move at the speed that we’re going to move at to look at what our options are.”

Maybe he should consult the NC Attorney General, the highest attorney in the state, who agrees that HB2 violates the Constitution.

Graham Wilson, a spokesman for Gov. Pat McCrory, said via text message that the governor does plan to have a response to the Justice Department order by Monday’s deadline. He did not offer further details.

White House press secretary Josh Earnest distanced President Barack Obama from the order in his news briefing Thursday afternoon. “These kinds of enforcement actions are made independent of any sort of political interference or direction from the White House,” Earnest said. “Those are decisions that are made entirely by attorneys at the Department of Justice.”

Democrats in the legislature said the Department of Justice order gives lawmakers plenty of time and should be addressed now.

“HB2 became law in less than 12 hours,” Rep. Cecil Brockman, a High Point Democrat, said in a tweet. “Five days should be more than enough time to decide how to clean up after it.”

Boom!  Yes!

Senate leader Phil Berger was less clear on what might happen – or won’t happen – before Monday. “Obviously there’ll have to be some response – you’ve got the deadline – but I don’t see the legislature, as the legislature, taking any specific response,” he said Thursday morning.

Maybe a TRO.  Or a request to extend the deadline.

The Department of Justice takes issue with House Bill 2’s provision requiring transgender people to use the bathroom that corresponds to the gender on their birth certificate. The bathroom rule applies to state government facilities, public universities and schools, while private businesses are allowed to set their own policies. A letter to state agencies said that the law represents “a pattern or practice of discrimination against transgender employees.”

An executive order issued by McCrory addressed some of the impacts of the law on state employees. McCrory expanded nondiscrimination protections for all state employees to include sexual orientation and gender identity. And he ordered Cabinet agencies to make “reasonable accommodations” for employees and visitors who request single-occupancy restrooms, locker rooms and showers.

Moore said that despite the deadline, North Carolina won’t risk an immediate loss of federal education funding if it doesn’t comply. During the current school year, state public schools received $861 million. In 2014-2015, the University of North Carolina system got $1.4 billion.

“They can’t just – through an administrative action by the attorney general’s office – issue a decree that has the force and effect of law over this state,” he said. “That’s not how this works. What they would have to do is initiate litigation at that point.”

No.  Wrong.  They can take away the money through administrative action, and the North Carolina has to start the litigation.

Berger also said he doesn’t think the Department of Justice has “the legal right” to stop House Bill 2. He says North Carolina residents should be “frustrated” by the order.

Didn’t we go through this with George Wallace?

“This might be part of what you’re seeing with both the Bernie Sanders and the Trump pushes,” he said, referring to the presidential candidates. “People are angry, and one of the reasons they’re angry is because of the failure – particularly of the federal government – to do the things that the people know need to be done, and yet they go off on a tangent like this and push radical social engineering.”

Bad choice of words.  Bernie Sanders is against HB2.  Even Trump thinks it is bad.  Even TRUMP!

In Washington, though, North Carolina’s Republican lawmakers weren’t eager to join the fray. U.S. Sen. Richard Burr didn’t appear ready Thursday to get personally involved in the HB2 controversy. His spokesman suggested it remained a state and local matter even with the involvement of the Justice Department.

“It sounds like the issue will be revisited at the state and local levels, and Sen. Burr encourages our state and local officials to do so,” said Burr campaign spokesman Alex Johnson. “In the meantime, Sen. Burr will remain focused on his responsibilities of heading up the American intelligence community and keeping North Carolinians safe.”

U.S. Sen. Thom Tillis didn’t respond to inquiries about the federal order Thursday.

Also Thursday, one of the primary backers of House Bill 2 – the Christian Action League of North Carolina – called on state leaders to fight the federal action.

“At the hands of his henchmen in the U.S. Department of Justice, King Obama has delivered his message of intimidation to the state of North Carolina,” executive director Mark Creech said on Facebook. “The Great Pontiff of Political Correctness holds the educational futures of our state’s children hostage, while dangling the money bags of federal funds over their heads, demanding in exchange North Carolina bow to the madness of obliterating male and female distinctives.”

Ah.  So it isn’t about privacy after all.  It’s about the “madness of obliterating” the difference between male and female.  You just revealed your hand, you bigot.

Breaking: US Govt to NC — Fix HB 2 Or Else

This may end sooner than even I thought:

U.S. Justice Department officials Wednesday notified Gov. Pat McCrory that House Bill 2 violates the U.S. Civil Rights Act. 

The department gave state officials until Monday to address the situation “by confirming that the State will not comply with or implement HB2.”

The letter says HB2, which pre-empted Charlotte’s anti-discrimination ordinance, violates Title IX of the Civil Rights Act, which bars discrimination in education based on sex.

If that determination is upheld, North Carolina could lose millions in federal school funding. During the current school year, state public schools received $861 million in federal funding.

Court Opinion: 4th Circuit Sides with Transgender High School Student Suing School Board for Access to Boy’s Bathroom

The Fourth Circuit just reversed a lower Virginia court, which had tossed a lawsuit by a transgender boy against the school district which barred his access to the boy’s room.

Not a final decision on the merits — the case was handed back down to the Virginia federal court.  But a good harbinger, since on other federal appeals court has weighed in on the issue.

I should also mention that my city did a good thing last night, if only symbolic:

The Winston-Salem City Council approved Monday night a resolution highly critical of much of the new House Bill 2 legislation that has set off controversy in the state and beyond over transgender restroom use and LGBT rights.

On a 6-1 vote, the council approved a resolution drawn up by Council Member Dan Besse calling on the city’s representatives in Raleigh to work toward undoing “inadequately considered and damaging legislative changes” that opponents see in the law.

The Besse resolution doesn’t mention the Charlotte restroom ordinance that provoked the General Assembly into action, one that would have given transgender people the right to use the restroom corresponding to their chosen gender identification. In fact, Besse said all along he wouldn’t ask council members to take a stand on that issue.

But Besse’s resolution does fault HB2 for taking away the ability of local governments to enact local ordinances concerning discrimination. As well, the resolution criticizes the law for preventing local governments from influencing private employer worker benefits by making the benefits a condition for getting a city contract.

The resolution carries no legal weight, but adds Winston-Salem to the growing list of N.C. cities voicing opposition to the new law.

The one Republican who voted against even has some problems with HB2:

Council Member Robert Clark, the board’s only Republican, was also the sole member to vote against the resolution. But Clark voiced concerns about some aspects of HB2 that he believes should be reconsidered, although he said he shares the concerns voiced by lawmakers about “male genitalia in female locker rooms” that were voiced when the bill was passed.

“At the same time, I recognize the difficulty a transgender person would have navigating a very private dilemma,” Clark said, adding that a third restroom might be a solution but isn’t one that has been proposed.

“We must, as a state, develop policies that protect civil rights of all persons while equally protecting the privacy rights of all as well,” Clark said.

And our AG made this point:

Besse’s resolution and Clark both took issue with the provision of HB2 that prevents someone from suing in state court for any kind of discrimination.

And one of Clark’s objections isn’t mentioned in Besse’s resolution but was pointed out as a problem with the legislation by Angela Carmon, the city attorney.

Carmon recently said the state law’s anti-discrimination measures — which do not mention sexual orientation or gender identity — could, if applied to the city’s own employment practices, put the city at odds with federal civil rights regulations that are increasingly being interpreted as covering sexual orientation and gender identity.

So. Yeah.  Good thing.

The Yahoos Get Their Day In Court

Remember that 41-day occupation of the Malheur National Wildlife Refuge that finally ended with one dude getting killed?

Yeah, it’s still a rallying cry for the lunatic right, who love to carry around the Constitution but haven’t bothered to have it read and explained to them (except by other lunatics).

Seven men are facing federal charges of conspiracy, weapon, theft and damaging government property charges in Portland, Oregon.  Five of them appeared in court Friday and not surprisingly, it was a circus.  I guess they don’t recognize the authority of the court over them.

Two sons of Nevada rancher Cliven Bundy and three other men refused to enter pleas in federal court in Las Vegas to charges in an armed confrontation with government agents two years ago.

Magistrate Judge George Foley Jr. entered not guilty pleas on behalf of each man during a sometimes contentious arraignment that featured cat-calls and cheers from about 30 Bundy backers and defendants’ family members, under watchful eyes of about a dozen U.S. marshals.

“We don’t need any outbursts,” Foley warned from the U.S. District Court bench Friday. Twice he told the restive audience, “This is not a show.”

Oh, it will be.  Here’s how I know (emphasis mine)

His brother and co-defendant, Ryan Bundy, professed to understand his rights but not the charges against him. He also said he wants to serve as his own lawyer.

Yup.  Bundy is going to put The United States Government (a federal corporation) on trial!!

“You’re out of order!  You’re out of order!  This whole country’s out of order!”

Payne told the judge it was “preposterous, sir,” to have to defend himself against federal charges in two jurisdictions at the same time.

“I don’t understand the pretense of this level of government to bring forth such charges,” he added.

Brian Cavalier finished his arraignment — “I will not be entering a plea today,” he said — by offering federal prosecutors a pocket copy of the U.S. Constitution.

Jesus wept.  Madison too.

 

Governor McCrory Keeps Digging Deeper

The Governor takes to Youtube:

Notes as I watch this:

  • He’s talking out of the corner of his mouth and has that fakey politician smile
  • The lip service offered to “respecting each other’s beliefs and values” is unnerving, given what he is defending here.
  • He responds to politicians who have “demonized” North Carolina.  Yeah, they’re the problem — these outside agitators.
  • McCrory: “Frankly what is embarrassing is politicians not respecting each other’s positions on complex issues”.That’s a breathtakingly bogus statement.  First of all, McCrory and others are feeling the heat because they didn’t respect the position that Charlotte politicians took when it permitted transgender people to use restrooms that match up with their self-identity.  Not only did HB2 disrespect that Charlotte ordinance by killing ir, but it also prevented ALL municipal governments from coming up with the same kind of ordinance, forever.  “Politicians not respecting others’ positions”?  He went there?
  • And when did this become a “complex issue” to McCrory and his cronies?  A few days ago, they claimed to addressing a simple problem with their “common-sensical solution”.   You know, if it was so complex, maybe the General Assembly should have allowed more public debate and discussion on HB2 so that they could be better informed — rather than keep the text of the law a huge secret and then pass and sign it within a 12 hour span.
  • He goes back to the “expectation of privacy” argument.  He still doesn’t explain how anyone’s “expectation of privacy” is threatened when a transgender person uses the restroom with which he/she identifies.
  • He takes a swipe at Attorney General Ray Cooper for not “defending the laws of this land”.  Look, I don’t know the Attorney General’s oath of office is when he gets sworn in, but I do know what all attorneys (including Cooper) must swear to, and that song goes a little like this:oathRoy Cooper’s allegiance — his JOB, if you will — is not to the Governor of North Carolina NOR the North Carolina Assembly, but to the Constitution of North Carolina to the extent that it is “not inconsistent with the Constitution of the United States”.  McCrory may not agree with Cooper’s assessment that HB2 is unconstitutional, but can’t he concede that Cooper at least has an argument?  It is not outside the realm of possibility that Cooper is right on this.  So this isn’t political — it’s legal — which is what Cooper’s JOB is.UPDATE:  Found it.  The NC Attorney General’s oath is actually the same as the governor’s and every elected official.  And it is pretty much what I thought it was.  He cannot act inconsistent with the Constitution of the United States.

    § 11-7. Oath or affirmation to support Constitutions; all officers to take. Every member of the General Assembly and every person elected or appointed to hold any office of trust or profit in the State shall, before taking office or entering upon the execution of the office, take and subscribe to the following oath: “I, ___________, do solemnly and sincerely swear that I will support the Constitution of the United States; that I will be faithful and bear true allegiance to the State of North Carolina, and to the constitutional powers and authorities which are or may be established for the government thereof; and that I will endeavor to support, maintain and defend the Constitution of said State, not inconsistent with the Constitution of the United States, to the best of my knowledge and ability; so help me God.”

  • Governor McCrory then states, regarding Cooper, “as the state attorney, he cannot select which laws he will defend….”.  Well, he can actually.  Look, every state official involved in law enforcement has a certain degree of discretion.  They just do.  That’s how you get off with a warning rather than getting a speeding ticket (I’m told).  That’s why there are such things as plea deals where state attorneys work outside the letter of the law in order to reach a just conclusion.  You even hear people invoke the term “prosecutorial discretion” surrounding this incident with Trump’s campaign manager, and how he shouldn’t face charges for such a minor crime.  So this discretion things exists and has been around a long time when it come to enforcement of the law (something different than administration of the law).But setting that aside, McCrory ignores the problem.  Even if the state attorney “cannot select which laws he will defend”, there is a problem when one of the laws he is supposed to defend is, in the state attorney’s opinion, in direct conflict with another law (or Constitution) that he is supposed to defend.  He simply cannot defend an unconstitutional law while at the same time defending the Constitution.  So, yes, he has no choice  put to select which law to defend, and if you look at his oath, the U.S. Constitution takes precedence.  McCrory’s argument would be more valid if the issue at hand was settled law — like gay marriage was when the Kansas law clerk Kim Davis tried to buck it.  But transgender bathroom issues have not been definitively settled on a national level.  I guess we’re about to find out.
  • McCrory says that the AG is inventing “a conflict that simply does not exist”. Again, it is one thing to claim that the other side is wrong, but it is laughable to say that there isn’t any “conflict” over this.  Clearly there is a conflict — a difference of legal opinion — over the discriminatory effects of HB2.
  • He keeps going back to this expectations of privacy thing.  But what he won’t do (because he can’t) is draw a direct line from the Charlotte ordinance to HOW that ordinance affects a person’s expectation of privacy in the restroom or locker room. If McCrory thought that the Charlotte law would make it easier for male-looking dudes to go to the women’s locker room, guess what?  There’s no evidence that problem would have happened.  Moreover, HB2 didn’t fix that problem.  In fact, it may have ended up creating that problem.

FBI Quietly Drops Lawsuit Against Apple

Remember that thing last month that I wrote about where the FBI wanted to force Apple’s help to break into an iPhone of the San Bernadino terrorist?

It was controversial in part because many thought that the FBI didn’t really need Apple’s help. Those people include Richard Clark. The former U.S. counterterrorism official and security adviser to the White House told NPR he believed the NSA could do it, no problem, but that the FBI was “not as interested in solving the problem as they are in getting a legal precedent.” Edward Snowden said the same via Twitter.

The FBI just proved them right (the Guardian):

The US government dropped its court fight against Apple after the FBI successfully pulled data from the iPhone of San Bernardino gunman Syed Farook, according to court records.

The development effectively ended a six-week legal battle poised to shape digital privacy for years to come. Instead, Silicon Valley and Washington are poised to return to a simmering cold war over the balance between privacy and law enforcement in the age of apps.

Justice Department lawyers wrote in a court filing Monday evening that they no longer needed Apple’s help in getting around the security countermeasures on Farook’s device.

No work on the third party that helped the FBI find the security breach.

Governor McCrory Attempts To Clarify HB2 . . . But Obfuscates Even More

Responding to worldwide disgust at the passage and signing of HB2, which discriminates against transgender people (and does lots of bad stuff in general), NC Governor McCrory put some shit on his website, entitled “Myths vs Facts: What New York Times, Huffington Post and other media outlets aren’t saying about common-sense privacy law”

Catchy title.

Can we dispense with the notion that this is a privacy law at all?  It doesn’t make the public bathrooms any more or less private.  It just changes who can go where.

And don’t get me started on “common-sense”.

So let’s look at this McCrory thing.  He starts off with this:

1. Does the new bill limit or prohibit private sector companies from adopting their own nondiscrimination policies or practices?

Answer: No. Businesses are not limited by this bill. Private individuals, companies and universities can adopt new or keep existing nondiscrimination policies.

That’s a nice way of saying that private individuals, companies and universities can still discriminate on the basis of gender identity or orientation.  In other words, the bill didn’t make things worse when it comes to the private sector bathrooms. You can be fired for being gay. You can be demoted for being gay. Employers can refuse to hire you for being gay. They can refuse to promote you for being gay. Businesses can refuse to serve you for being gay.

2. Does this bill take away existing protections for individuals in North Carolina?

Answer: No. In fact, for the first time in state history, this law establishes a statewide anti-discrimination policy in North Carolina which is tougher than the federal government’s. This also means that the law in North Carolina is not different when you go city to city.

This is not true.  At the time the bill was passed, there was a brand new *existing* anti-discrimination policy in Charlotte.  Now there isn’t.

It’s sort of disingenuous to say that nothing has changed when in fact, the NC government convened in a special session specifically to make a change.

The next two questions are basically a re-phrasing of Question Number One

5. Does this law prohibit towns, cities or counties in North Carolina from setting their own nondiscrimination policies in employment that go beyond state law

Answer: No. Town, cities and counties in North Carolina are still allowed to set stricter non-discrimination policies for their own employees if they choose.

Ah, “in employment”.  Subtle little caveat there.  Thanks for addressing something that wasn’t an issue.

6. Does this bill mean transgender people will always have to use the restroom of the sex of their birth, even if they have undergone a sex change? 

Answer: No. This law simply says people must use the bathroom of the sex listed on their birth certificate. Anyone who has undergone a sex change can change their sex on their birth certificate.

But if you can’t afford the sex change OR if you there are medical risks to sex change OR if you can’t afford the legal hurdles to get a birth certificate change OR if you were born in a state that doesn’t permit changes to birth certificates (Kansas, Tennessee, among others), you’re out of luck.

8. Does this bill affect people with disabilities?

Answer: No. Statewide law also bans discrimination based on disability.

What McCrory doesn’t tell you here is — yes, although statewide law bans discrimination based on a disability, you can’t — thanks to the new law — sue in state courts if someone discriminates against you (like, say, your boss).  And it is not just disability.  It is religion, color, national origin, biological sex and sometimes age.

So you have to go to federal court, which sometimes is impossible, or take longer, and is definitely more expensive.  So basically, North Carolina still bans discrimination; it just won’t do anything to protect you from it.

9. Why did North Carolina pass this law in the first place?

Answer: The bill was passed after the Charlotte City Council voted to impose a regulation requiring businesses to allow a man into a women’s restroom, shower, or locker room if they choose. This ordinance would have eliminated the basic expectations of privacy people have when using the rest room by allowing people to use the restroom of their choice. This new local regulation brought up serious privacy concerns by parents, businesses and others across the state, as well as safety concerns that this new local rule could be used by people who would take advantage of this to do harm to others.

Boy, this is insulting.  The Charlotte City Council most certainly did NOT vote to allow a MAN into a women’s restroom, etc.  The ordinance was meant to allow a WOMAN into a women’s restroom.  That’s why this HB2 is so offensive.  It assumes, rather stupidly and contrary to both reality and common sense, that a person’s actual gender is what is on the birth certificate.  And that a trans person will act in accordance with what some doctor said X number of years ago.

And then it assumes, in a nonsensical way, that others in the restroom would have their “expectations of privacy” invaded by the woman in the women’s restroom.  Is there any evidence for this?  Of course not.  In fact, most transgender men use the men’s restroom and nobody is none the wiser.  And same with transgender women.  So whose privacy gets “invaded”?   Name them, Gov. McCrory.  I want to meet them.

11. Will this bill threaten federal funding for public schools under Title IX?

Answer: No, according to a federal court which has looked at a similar issue.

It would be nice if he cited his work.  Because I wonder if the “similar issue” is in fact “similar”  Or how old the case is.  Because on April 29, 2014, the United States Department of Education (DOE) specifically states “Title IX’s sex discrimination prohibition extends to claims of discrimination based on gender identity or failure to conform to stereotypical notions of masculinity or femininity.”

And in fact, when public schools have tried to get away with what NC us tryng to do, THEY LOSE.

13. Will this bill affect North Carolina’s ability to create or recruit jobs?

Answer: This bill does not affect companies in North Carolina. North Carolina was one of the top states to do business in the country before this law was passed, and preventing Charlotte’s bathroom ordinance from going into effect on April 1 won’t change that.

Well, true.  Nothing in the language of the bill specifically hurts jobs.  But given the response from business leaders all over the country, clearly it will have an impact on companies coming here, which effects job creation.

And the rest of it is bullshit.  Kind of like… well, nothing has happened to North Carolina YET as a result of HB2.  Ooookay.

 

 

 

The Lawsuit Begins

Two transgender people and a lesbian law school professor, along with the ACLU of North Carolina and Equality NC, filed a federal lawsuit today to challenge the new North Carolina law that blocks local governments from passing anti-discrimination rules and requiring transgender students to use bathrooms assigned to their biological sex.

While I would have preferred that the lawsuit take on the broader issues of the law besides the bathroom assignments, I can understand that the harm on those other issues is speculative at this point.

So… the bathroom issues it is.

Repercussions

I know the Republican lawmakers don’t give a damn about non-straight people, but they’re supposed to give a damn about business.  Apparently, they didn’t think about the effect on the economy:

American Airlines and other major businesses across the state and nation are taking a stand against a bill signed into law Wednesday by N.C. Gov. Pat McCrory that invalidates Charlotte’s new legal protections for LGBT individuals.

The NCAA, which is scheduled to hold men’s basketball tournament games in North Carolina in 2017 and 2018, said it’s monitoring events in cities where it plans to hold its sporting events.

At a time when North Carolina is trying to recruit companies to expand and grow in the state, some business leaders said the new measure will jeopardize employee recruitment and economic development in the state.

“We believe no individual should be discriminated against because of gender identity or sexual orientation,” American Airlines spokeswoman Katie Cody said in a statement. “Laws that allow such discrimination go against our fundamental belief of equality and are bad for the economies of the states in which they are enacted.”

American Airlines operates its second-biggest hub at Charlotte Douglas International Airport, where it just reached a new 10-year lease agreement.

***

American has previously joined other major U.S. companies, including Wells Fargo, Apple and Microsoft, in signing a statement opposed to “anti-LGBT” legislation.

Read the whole thing.  American Airlines and the NCAA are just the tip of what I hope is a larger iceberg.

There’s Paypal, which announced plans last week to hire 400 in Charlotte for a new operations center,

And Biogen, the biotech company and one of the biggest employers in the Triangle:

Bank of America Stadium, where the Panthers play, has in the past encouraged transgender men and women to use the facilities in which they feel the most comfortable.  Similarly, BB&T Ballpark and Charlotte Motor Speedway allow transgender individuals to use the restroom of their gender identity.

The NCAA has first- and second-round games in the men’s NCAA basketball tournament in Greensboro in 2017 and in Charlotte in 2018.  They put the pressure on Indiana to amend a similar discriminatory law.

UPDATE — More reax:

President and CEO of Red Hat News:

and

and former editor of News & Record

and Activist and Orange Is the new Black actress Laverne Cox voiced her opposition as well

Gov McCrory Signs HB2 Into Law

Here’s why he did it:

… which kind of reminds me of when Edith Bunker of “All in The Family” couldn’t understand how a man could be in love with another man, and therefore didn’t understand the concept of gay rights.  The ordinance only defies common sense if you are blind to the problem it seeks to remedy.

Speaker Jim Moore also defended the law, saying:

“One of the biggest issues was about privacy. . . The way the ordinance was written by City Council in Charlotte, it would have allowed a man to go into a bathroom, locker or any changing facility, where women are — even if he was a man. We were concerned. Obviously there is the security risk of a sexual predator, but there is the issue of privacy.”

The final bill is attached below the fold.

Charlotte Mayor Jennifer Roberts, a Democrat, released a statement saying she was appalled by the bill’s passage.

“This legislation is literally the most anti-LGBT legislation in the country,” she said Wednesday.

So how did we get here?

North Carolina, like most states, legally permits discrimination against people based on sexual orientation or gender identity in public accommodations. In comparison, discrimination based on race and religion, for example, in public accommodations is forbidden by federal and state laws.

Charlotte was essentially trying to fix this gap in civil rights laws. By expanding the city’s existing civil rights protections, the city council hoped to make it clear that LGBTQ people should be able to go to a bar or hail a taxi without the fear of legally allowed discrimination.

And so on February 22, Charlotte came forward with an ordinance which did just that:

The changes mean businesses in Charlotte can’t discriminate against gay, lesbian or transgender customers, in addition to long-standing protections based on race, age, religion and gender. The ordinance applies to places of public accommodation, such as bars, restaurants and stores. It also applies to taxis.

The most controversial part of the ordinance would allow transgender residents to use either a men’s or women’s bathroom, depending on the gender with which they identify.

And that’s when state lawmakers jumped into action, quickly proposing the new state law which was signed by the governor yesterday.

Here’s what the state’s law does:

  1. The statute overturns and bans local laws (including Charlotte’s) that don’t conform to the state’s nondiscrimination laws for the workplace and public accommodations (hotels, restaurants, and other places that serve the public). Since the state doesn’t ban discrimination based on sexual orientation or gender identity in the workplace or public accommodations, this effectively forces all cities and counties to keep it legal to discriminate against LGBTQ people in these settings.
  2. It prohibits transgender people from using bathrooms or locker rooms in schools and government agencies based solely on their gender identity. Instead, they’re forced to use bathrooms and locker rooms based on the gender noted on their birth certificate, which can be changed through an arduous process after gender-affirming surgery but not before then. Public facilities can still build unisex single-person bathrooms to accommodate trans people, but it’s not required.

The governor and bill sponsors want the focus to be on the bathroom issue — it is something everyone can relate to — but that will involve a lot of silly fearmongering that has little basis in reality.  Sexual predators can exist regardless of the sexual orientation of the predator OR victim.  You don’t reduce incidents of sexual predators simply by discriminating against people of a certain sexual orientation.  The one has nothing to do with the other.  And in fact, we know from experience in places which permit transgender accommodation that the fears of heightened sexual assault or invasion of privacy are unfounded.

Cambridge, Mass, for instance:

Back in 1984 Cambridge enacted an ordinance that established the Human Rights Commission. The purpose of the ordinance was to protect the human rights of all citizens of the City. In 1997 this ordinance was amended to specifically include gender identity and expression. Much like the Transgender Equal Rights Bill proposal, the City of Cambridge sought to offer protection to transgender individuals from being harassed, fired from a job, denied access to a public place, or denied or evicted from housing. Since this 1997 amendment there have been no incidents or issues regarding persons abusing this ordinance or using them as a defense to commit crimes. Specifically, as was raised as a concern if the bill were to be passed, there have been no incidents of men dressing up as women to commit crimes in female bathrooms and using the city ordinance as a defense.

No incidents in almost 20 years.

But the bathroom thing is partly a diversion.  What is at stake here is LGBT rights and non-discrimination laws in a broader sense. This is the new battlefront after the gay marriage victories.

Already, two states have passed laws that preempt local non-discrimination provisions. In 2011, Tennessee passed such a law, and Arkansas passed one in 2015—both in responses to cities adopting or considering ordinances.

North Carolina’s law us like the Tennessee and Arkansas law.  This is the first time that a law has been passed at the state level which mandates that students use the bathroom corresponding to their “biological sex” or some similar phrase.  In February, South Dakota lawmakers passed a similar bill, but Republican Governor Dennis Daugaard vetoed it, saying the law did not answer any pressing need and that local authorities were better-equipped to handle the issue than state lawmakers.

The student-restroom laws in North Carolina and elsewhere raise other questions, most notably whether schools fall afoul of federal Title IX regulation and thus endanger federal funding. It would be ironic if the North Carolina’s attempt to preempt Charlotte’s ordinances was itself preempted by federal law, but that’s certainly a highly possible outcome.

The other problem with the new state law is the notion that municipalities must conform to the state’s nondiscrimination laws.  While that is generally true, “conformity to nondiscrimination laws” has never meant that municipalities had to be as discriminatory as the state.  Rather, it has always meant that municipalities must be at least as NONdiscriminatory as the state.  Put another way, the purpose of non-discrimination laws is, to stop discrimination.  If a municipality wants to do better than the state at stopping discriminating, it has always been free to do that. That’t the way it has been in every state in the country.  Charlotte WAS conforming to North Carolina’s non-discrimination laws.  AND it added a few non-discrimination laws of its own.

But the rationale of North Carolina’s new state law turns the whole idea of non-discrimination on its head.

Another rationale for the new law is the specious argument that state laws regarding non-discrimination should be consistent throughout the state — that this will somehow help intra-state commerce.  Sounds good and legal and rational…. until you actually think about it.  How is intrastate commerce affected at all if taxis can ignore LGBTQ people in Raleigh, but can’t in Charlotte?  Intrastate commerce isn’t impacted at all.  Nor is it affected if the bathroom rules are different in different municipalities.

And if Charlotte wants to prevent businesses from engaging in wage discrimination against LGBTQ workers — well, that doesn’t impact intrastate commerce either.  Yes, it makes Charlotte a more appealing place to work than Raleigh if you are a member of the LGBTQ community (or, you know, the human race), but that’s Raleigh’s problem.  It doesn’t affect THE STATE or intrastate commerce.  So this “conformity of nondiscrimination laws throughout the state” is just a bullshit rationale.

And so the next fight begins.  Personally, I am not worried about the final outcome.  I’ve been around long enough to see the arc of justice, and which way it bends.  In the 1970s and 1980s, when transgender discrimination issues started poking up, they almost universally failed.   Not so anymore.  Courts are beginning to recognize that that a person could bring a claim under Title VII’s ban on sex discrimination because an employer views an employee’s sexual orientation as “not consistent with … acceptable gender roles.”  The U.S. Department of Labor has acknowledged the ruling in Macy v Holder — so now, if you are a business that wants a government contract, fat chance of getting that contract if you discriminate on the basis of gender identity or transgender status.  [UPDATE:  I’m going to list some federal court decisions which support coverage for transgender Individuals as sex discrimination]

But it is just frustrating to have to continually have these battles for civil rights and, indeed, common decency.  I just wish the haters would get tired of losing and give it up already.

North Carolina General Assembly’s Horrible LGBT Discrimination Bill

A draft version of the bill that the legislature is set to consider during the special session confirmed the worst fears of the LGBT community and anyone remotely interested in civil liberties, or even municipal governance, in North Carolina: Speaker Tim Moore and the Republicans are going to destroy the ability of local governments to govern themselves.

First reported by WRAL, the bill, if it looks anything like this one, is set to revoke the ability of local governments like Charlotte to extend their non-discrimination protections to not only LGBT people, but disabled people as well. The bill cleverly is introduced under the guise of a new non-discrimination ordinance statewide, but one that only extends protections based on “race, religion, color, national origin, or sex.”

The draft bill is here:

Not only would it disavow protections for LBGT groups, but it would also prevent any cities or local governments from raising the minimum wage, creating a “livable wage” ordinance, or creating stricter labor laws than the state’s. Effectively, this bill would “supersede” all local laws regarding non-discrimination and labor that aren’t as draconian as the state of North Carolina’s.

It appears that in addition to cities and municipalities, schools would lose this authority as well, given that North Carolina is forcing schools to adopt single-sex bathrooms as a concrete policy. The Chapel Hill-Carrboro City Schools decided to implement gender-neutral bathrooms back in February; that appears to be in jeopardy now.

The cost of the special session to consider bills like this is $42,000 per day.

This is nothing new from the legislature. Back in October, they passed a bill aimed at ending “sanctuary city” ordinances for undocumented immigrants, and they’re continually attempting to strip local governments of the power to draw their own districts after they lose elections.

It is something we are seeing in other states as well.  But fortunately, Republican South Dakota Gov. Dennis Daugaard recently vetoed a similar restroom restriction for students, while Tennessee’s Republican-led state House tabled a similar measure Tuesday.

Sadly, North Carolina’s version is even a more extreme, anti-LGBT bill than others proposed in other states.

North Carolina Gov. Pat McCrory see this as a political hot potato; on Monday, he declined to call lawmakers back to consider the proposed bill, saying that, while he believes the restroom issue must be addressed, the rest of the legislation is too broad to be considered in a special session unlikely to have time to accommodate public input.

But House and Senate leaders used a rarely invoked power to call themselves back instead.

This morning in a special session, General Assembly is slated to hammer out the final bill, which should come out sometime today.

Garland

Is it hard to do cartwheels over President Obama’s choice of Supreme Court nominee Merrick Garland today.  Professor Epstein seems to think he’s a good liberal…

Epstein

… but you always have to question the methodology of these things.

Merrick Garland is 63 years old and currently serves as chief judge of the U.S. Court of Appeals for the District of Columbia Circuit. A former Justice Department official in the Clinton administration, Garland was nominated to the D.C. Circuit by President Bill Clinton in 1997 and confirmed by the U.S. Senate by a vote of 76-23. Sen. Orrin Hatch remarked at the time that Garland was “not only a fine nominee, but as good as Republicans can expect from [the Clinton] administration.”  He’s actually pretty conservative on police issues and war on terror.  But he’s no threat to Roe v Wade.

Sure, Garland is smart.  And qualified.  But if the tables were turned, and it was a Republican president and a Democrat-controlled Senate, I don’t think the judicial candidate would have been so…. moderate.

I mean, I get it.  Everyone gets it.  Obama is picking a guy who has already been approved by the Senate for his current judicial gig, who is not an ideologue, etc.  This forces Senate Republicans to consider AND approve the nominee, or look like the reason why Washington sucks so bad.  Also, with a Clinton presidency looming, Republicans might just want to get Garland and not get someone far more liberal.  (In fact, a President Trump could pick a liberal judge for all anybody knows).

In other words. holding out for another Scalia just might get Republicans a lefty version of Scalia.

Over at 538, they did some quick calculations and determined what the future might look like:

chances

Facing those possibilities, confirming Garland, might just be the best thing the GOP could do.  You gotta play the cards you’re dealt.

And the other hand, I get annoyed at this (if it is true):

Why would Obama capitulate to the Republicans when he has them over a barrel?

In the end, it seems that Obama has made a pragmatic choice.  And let’s face it.  It saves the Court.  And if it doesn’t, it makes the GOP look horrible.

Early indications are that the right wing is bent on looking obstructionist, even in the face of a reasonable moderate candidate.  Jay Sekulow of the American Center for Law and Justice issued a statement repeating his call for “no confirmation proceedings until after the election.” Liberty Counsel’s Mat Staver similarly repeated that there should be “no Senate hearing on any Obama nominee.” Alliance Defending Freedom’s Casey Mattox offered no criticism of Garland himself but claimed that the Obama administration is untrustworthy and so Garland’s nomination should be blocked: “The Obama administration has demonstrated it cannot be trusted to respect the rule of law, the Constitution, and the limits of its own authority. So it should be no surprise that the American people would be highly skeptical that any nominee this president puts forth would be acceptable. Heritage Action, which was calling for an end to most judicial and executive branch confirmations even before Scalia’s death, declared that “nothing has changed”  with the nomination of Garland and that we areone liberal Justice away from seeing gun rights restricted and partial birth abortion being considered a constitutional right.”  Tony Perkins of the Family Research Council similarly tried to paint Garland as a liberal, saying he is “far from being a consensus nominee,” although he offered no specifics on the
“serious questions” he said their were about Garland’s “ability to serve as a constitutionalist.”  And anti-abortion groups also doubled down on their opposition to any confirmation proceedings, although they struggled to find specific reasons to oppose Garland.

Aaaaand as I write this, it looks like the Senate Republicans are taking the bait and biting down hard:

Senator Mitch McConnell of Kentucky, the majority leader, has called President Obama’s Supreme Court nominee, Judge Merrick B. Garland, and explained that no action would be taken in the Senate on the nomination, Mr. McConnell’s spokesman said.

Mr. McConnell also informed Judge Garland that they would not be meeting in person at the Capitol.

“Rather than put Judge Garland through more unnecessary political routines orchestrated by the White House, the leader decided it would be more considerate of the nominee’s time to speak with him today by phone,” Mr. McConnell’s spokesman, Don Stewart, said in a statement.

“The leader reiterated his position that the American people will have a voice in this vacancy and that the Senate will appropriately revisit the matter when it considers the qualifications of the person the next president nominates. And since the Senate will not be acting on this nomination, he would not be holding a perfunctory meeting, but he wished Judge Garland well.”

“Political routines orchestrated by the White House”?  That’s a funny way to say “obligations placed upon the President by the U.S. Constitution”.

Apple And The FBI Order

Interesting little development going on in the tech/privacy world and, depending on who you believe, a possible turning point for the better/worse.

After the San Bernardino shootings, the FBI seized the iPhone used by shooter Syed Rizwan Farook. The FBI has a warrant to search the phone’s contents, and because it was Farook’s work phone, the FBI also has permission from the shooter’s employer, the San Bernardino County Department of Public Health, to search the device. Legally, the FBI can and should search this phone. That’s not up for debate. If the FBI gets a warrant to search a house and the people who own it say okay, there’s no ambiguity about whether it can search the house.

But if the FBI comes across a safe in that house, the warrant and permission do not mean it can force the company that manufactures the safe to create a special tool for opening its safes, especially a tool that would make other safes completely useless as secure storage. That’s the situation that Apple’s dealing with here.

The FBI obtained an order from a California district court on Tuesday ordering Apple to provide “reasonable technical assistance” in cracking Farook’s passcode. The court order doesn’t flat-out demand that Apple unlock the phone, which is an iPhone 5C running iOS 9. Instead, the judge is asking Apple to create a new, custom, terrorist-phone-specific version of its iOS software to help the FBI unlock the phone. Security researcher Dan Guido has a great analysis of why it is technically possible for Apple to comply and create this software. (It would not be if Farook had used an iPhone 6, because Apple created a special security protection called the Secure Enclave for its newer phones that cannot be manipulated by customizing iOS.)

Apple quickly said it would fight the judge’s order. Chief executive Tim Cook called it “an unprecedented step which threatens the security of our customers,” and said the order “has implications far beyond the legal case at hand.” He published a message emphasizing that the company can’t build a backdoor for one iPhone without screwing over security for the rest:

In today’s digital world, the “key” to an encrypted system is a piece of information that unlocks the data, and it is only as secure as the protections around it. Once the information is known, or a way to bypass the code is revealed, the encryption can be defeated by anyone with that knowledge.

The government suggests this tool could only be used once, on one phone. But that’s simply not true. Once created, the technique could be used over and over again, on any number of devices. In the physical world, it would be the equivalent of a master key, capable of opening hundreds of millions of locks — from restaurants and banks to stores and homes. No reasonable person would find that acceptable.

Apple, Google and other technology firms in recent years have stepped up encryption — allowing only the customers to have “keys” to unlock their devices — claiming improved security and privacy is needed to maintain confidence in the digital world.

This has sparked a national discussion on weighing security against privacy.  Not a new debate — we’ve had that since 9/11.  But this relates to our smartphones, and so everyone has a strong opinion, it seems.  Republican candidates are coming down on the side of national security in a few that is somewhat contradictory of the anti-big-government stance they often take.  Again, nothing new there.

Let’s see if we can’t shake out this tree a little.

First off, here is the actual order.  Magistrate Judge Sheri Pym, a former federal prosecutor, relied on the All Writs Act, passed in 1789 (one of the first federal laws ever).  It has been used many times in the past by the government to require a third party to aid law enforcement in its investigation.

The order would require Apple (US) to create firmware to be loaded onto a specific phone to make it possible to do brute force password guessing. (Among a couple of other things, it would take away the maximum number of guesses to unlock the device.)

The significant thing about this case is that the FBI, minus any enforcing legislation, has gone and found itself a judge to order a company to do something.

Think about that — ‘ordering a company to do something’.  That is something arguably new in the current FBI approach.

The Apple case is remarkable in that it couches what the court views as “reasonable assistance” as basically breaking your own products.  Apple has quite rightly made the point that not only does this break company security and therefore customer privacy, but that if they create an exploit for the FBI, the vulnerability will be used by the likes of Putin and various repressive regimes.

Facebook, Twitter and Google have all voiced support for Apple‘s fight against a court order that Apple says would make iPhones less secure a,d it is not hard to understand why — they simply cannot run a global business if they are seen to do too many special favors for one government, the United States.

But is this really about privacy?  Do we as individuals really care about these things?  Let’s face it — we are now just little motors chuntering around creating metadata exhaust trails. The current conflict is not an argument about our privacy rights, since we seem to be content to leave ourselves all over the place (Facebook,. Twitter, etc.).  Rather, this might be a fight between governments and firms on how better to pin us down and hoover up the effluent we leave behind. You can see why they might all be getting testy about who gets what.

So I tend to think this is less about Apple preserving privacy for its owners, and more about it being seen in international quarters as subservient to the American government.  What will happen to the foreign markets of Google and Facebook and Apple and Android if it widely believe that one American judge can order these giant companies to invade one person’s privacy?

This is about the Benjamins just as much as about the privacy rights of people.

The Scalia Gambit

Without question, the death of Associate Justice Antonin Scalia has set all sides of the political spectrum into a frenzy.  Everybody is weighing, but the stupidest comments are coming from Republicans who say that Obama shouldn’t nominate a justice at all because there is an election coming up.  Rand Paul, who supposedly loves the Constitution, says that Obama has a “conflict of interest”, which is ridiculous.

The Constitution on this issue is not hard to understand: “[The President] shall nominate, and by and with the Advice and Consent of the Senate, shall appoint … Judges of the supreme Court.” The provision creates a power — and perhaps even a duty — in the president to make a nomination.  No, it does not give him a right to have his nominee confirmed or even considered. That power lies with the Senate.  But certainly the President SHALL do what the Constitution instructs him to do.

This puts the ball in the Senate’s court (so to speak) and Republican Senate Majority leader Mitch McConnell made the foolish error of showing his cards.  He said that the Senate will not vote on an Obama nominee.  They will delay, filibuster, whatever.

That’s fine, but who will pay the price for that?  Republicans, I suspect.  They need to show that they can govern, something that they have failed to do in the past few years.

Loretta_Lynch-10-facts-black-enterpriseSo knowing the GOP gamebook, what should Obama do?  Invigorate the base by nominating Loretta E. Lynch, the 83rd Attorney General of the United States.  Very qualified, and approved already for the Senate for AG.  And a black woman.

And the GOP can spend the whole election season explaining why this qualified black woman should not be the first black woman on the Supreme Court.  I don’t know how they can win the politics of this, even if they succeed in keeping her off the bench.

Hillary and/or Bernie can add fuel to the fire by saying that if they won the election, they would nominate…. Larry Tribe.  It might force Republicans to accept Obama’s nominee, as the lesser of two evils.  Especially if it looks like Trump might not take the White House.

Then, there’s this:

It could all come down to 17 crucial days in January.

If Democrats win back the Senate and lose the White House in November, they would control both branches of government for about two weeks before Obama leaves office. That overlap in the transition of power is set in stone. The Constitution mandates the new Congress begins work on January 3, while President Obama stays in power until January 20.

So if Democrats take back the Senate, President Obama could send a Supreme Court nominee to that new Democratic majority, which would have 17 days to change the filibuster rules and ram in a vote before a new President takes power.

Sri_SrinavasanSo maybe Obama might do better to select a consensus nominee. Sri Srinivasan is an often-mentioned choice.  He is 48, an Indian-American, and a member of the U.S. Court of Appeals for the District of Columbia Circuit — a traditional launching pad for Supreme Court nominees.  Obama first nominated him to the post in 2012, and the Senate confirmed him, 97-0, in May 2013, including votes in support from GOP presidential contenders Sens. Ted Cruz and Marco Rubio.

Now, undoubtedly there are bloggers and pundits on the right who see this playing out — politically — in their favor.  And to be sure, if you are embedded on the bigoted women-and-immigrant-hating right side of the political spectrum, you’re not worried about Lynch or Srinivasan being nominated, and you hope their nomination will rally other bigots like you. Bring it on!

The problem is… America isn’t like the right.  It’s not that conservative, and you only need to look at Trump to know there is a problem with right wing politics these days.

Activist Supreme Court Rules On Climate Change

Crazy:

In a major setback for President Obama’s climate change agenda, the Supreme Court on Tuesday temporarily blocked the administration’s effort to combat global warming by regulating emissions from coal-fired power plants.

The brief order was not the last word on the case, which is most likely to return to the Supreme Court after an appeals court considers an expedited challenge from 29 states and dozens of corporations and industry groups.

But the Supreme Court’s willingness to issue a stay while the case proceeds was an early hint that the program could face a skeptical reception from the justices.

The 5-to-4 vote, with the court’s four liberal members dissenting, was unprecedented — the Supreme Court had never before granted a request to halt a regulation before review

“It’s a stunning development,” Jody Freeman, a Harvard law professor and former environmental legal counsel to the Obama administration, said in an email. She added that “the order certainly indicates a high degree of initial judicial skepticism from five justices on the court,” and that the ruling would raise serious questions from nations that signed on to the landmark Paris climate change pact in December.

When the court does something unprecedented procedurally, that usually means they are doing something political (e.g., Bush v. Gore).  No doubt the five conservatives on the court were motivated by Obama’s use of executive orders.

Original Intent

From The New Yorker:

December 5, 1791
James Madison
House of Representatives

Dear James,

How is it almost 1792?! Quick question on the right to bear arms thing in your “Bill of Rights”—the wording and punctuation are slightly confusing. Did you mean that the right of the people serving in the militia to keep and bear arms shall not be infringed, or people in general? I’m assuming the former, but don’t want to make an ass of you and me! (Franklin made that up, but I’m using it everywhere!) Could you please send me a quick note whenever to clarify?

TJ

P.S. To be honest, I’m still meh about “Bill of Rights” as a name.

* * *

December 7, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

I know, it’s so crazy how fast this year has gone—I just got used to writing 1791 on my deeds of purchase (of slaves)!

As far as the amendment, of course it’s the former. If every private citizen had the right to carry a musket, a thousand people would’ve shot Patrick Henry by now, am I right? Don’t worry about it. Everyone will know what it means.

JM

P.S. You’re not back on “The Ten Amendments” are you? It’s trying way too hard to sound Biblical.

* * *

December 9, 1791
James Madison
House of Representatives

Dear James,

Hahaha re: Patrick Henry. And I agree it should be obvious. It’s just, why not make it so clear that even the biggest Anti-Federalist looney tune can’t misinterpret the meaning? I’d add “while serving in the militia” to line three. Also, not to be a grammar redcoat here, but the use and placement of the comma isn’t helping. Can we change it? It will take two seconds.

I know I’m being annoying!

TJ

P.S. How about “Constitution, Part Two?” (Not a serious pitch, unless you like it!)

* * *

December 11, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

There is literally zero chance that anyone will misconstrue this, and the great news is that if someone actually does, the Supreme Court will set them straight. I don’t want to change it. It won’t take two seconds, because the addition would push a page and I’d have to do the whole rest of it over again and W. is breathing down my neck about it. Plus, I like the way my signature looks on the version I sent you, and you know I always hate the way it looks on important stuff.

Not trying to be snippy, but you’re worrying about nothing.

JM

* * *

December 13, 1791
James Madison
House of Representatives

Dear James,

I know, I know—I’m the worst. Just hear me out. Imagine it’s some two hundred years from now. Musket makers have made new and more powerful muskets—ones that are capable of firing two or even three shots per minute—and, in an effort to sell more, they claim that every homeowner should have the right to own one, or two, or twenty. They bribe politicians to advance their cause, they stoke public fears of crime and federal tyranny, and they manage to exploit this slightly confusing language and comma placement to claim that we originally intended to give every private citizen the right to own as many muskets (and for that manner, cannons!) as they can get their hands on. And because in this version of the future (just bear with me here) we’ve had such a run of Anti-Federalist Presidents, the Court is packed with men who might agree. Isn’t there the slightest chance that this could happen?

TJ

* * *

December 15, 1791
Thomas Jefferson
Office of the Secretary of State

Dear Tom,

You know I love you, but we seriously need to get this ratified, like, today, or W. will have my ass. There is no way that what you’re talking about could come to pass. It’s too ridiculous. The amendment goes before Congress as written.

Besides, if anyone ever needs to confirm our intention two hundred years from now, they need only consult any decent spiritualist to communicate with our ghosts. If muskets can fire three shots per minute in your future, I’m sure mediums will have become even better at their jobs, too.

JM

Domestic Terrorism Update

Busy day today, so I have little commentary.  I recommend an article in The New Yorker for a slightly different, but valuable, perspective than mine:

American vigilantism is never racially innocent. Its two parents are self-mobilization on the frontier, usually against Native Americans at a time when homesteading was reserved to whites, and the racial terror of the Ku Klux Klan in the South during and after Reconstruction. It is too much to call the occupiers “domestic terrorists,” as the Oklahoma City Bomber Timothy McVeigh or the Klan were, but it is also obtuse to ignore the special comfort that certain white men have using guns as props in their acts of not-quite-civil disobedience. After all, guns were how they acquired their special sense of entitlement to public lands in the first place.

The latest news seems to be that the “protesters” have said they will leave if the locals there want them to.  That’s good news.

A leader of the activists occupying a federal wildlife refuge in Oregon’s snowy back country said he and others would agree to stand down and leave if local residents ask them “directly” to end their campaign.

Ryan Bundy, who along with his brother has emerged as a leader of the activists and protesters holed up in a compound of federal buildings in southeastern Oregon, pledged to organize a meeting as early as Tuesday to let Harney County residents speak with them directly.

But on Tuesday, Bundy renewed his vow that there was no end in sight for the occupation.

Residents in the county’s largest towns – Burns and Hines – have said they agree with the activists’ message but take issue with their tactics, such as the armed occupation of government-owned buildings.

In Burns, signs have gone up asking the occupiers to leave. Some residents said they are fearful of a violent confrontation if federal agents were to descend on the refuge.

That sounds to me like Bundy thought he has the support of the local community when he said he would leave if the local residents wanted him to.  And now he’s finding out, uh, maybe not.  The article continues:

He said the occupying group has made “no direct demands,” but the participants have stated that they will leave if the federal government gives up control of the nearby Malheur National Forest.

Well, that’s not going to happen.

Armed Terrorists Seize Federal Property

You would think this would be 24/7 headline news, but it isn’t.  The terrorist takeover began Sunday morning, but the regular news outlets barely covered it.  Only on Twitter was it discussed at any length, thanks to the hashtag #OregonUnderAttack.

Now that it is a regular non-holiday workday, the media is starting to report it.  Before then, the only real outlet covering the story was The Oregonian.

What’s at the center of this issue is the federal land management, and two people: Dwight Hammond, age 73, and his son Steve Hammond, age 46.  These men are ranchers in Oregon.  Strap yourselves in.

Hammond Ranches owns about 12,000 acres in the Diamond-Frenchglen area. They use this ground to run cattle during the winter. Until two years ago the Hammonds used 26,420 acres of land belonging to the U.S. Bureau of Land Management for summer grazing (the U.S. government gives out grazing permits).

Now, when it comes to ranching, fire is an important tool. It is used to burn invasive species that crowd out native grass and other plants.  Fire can kill those pests, leaving plenty of grazing (on the non-burned grass/plants) for the cattle.

The problem is, fire is also a threat. Recent wildfires have scorched hundreds of thousands of acres in this territory, putting the ground off limits for grazing. Cattle have been killed in the runaway blazes, and lives endangered.

In 1999, Dwight Hammond got a stern letter from the local manager for the federal land bureau saying that Steve Hammond had set a fire that spread to federal ground. The letter said Steve told officials in a subsequent meeting that he “did not believe there was any way to control fire behavior or where it would burn, and that he did not take any action to prevent the fire from burning.”  Nevertheless, the Hammonds got off with a warning.

The problem started with two more fires set by the Hammonds — one in 2001 and one in 2006.

The fire in 2001 was a simple prescribed burn.  According to Steve and Dwight Hammond, it was intended to take out invasive juniper.  But federal prosecutors said the men’s real motive for starting the blaze, which consumed 139 acres and forestalled grazing for two seasons, was to cover up evidence of an illegal slaughter of deer. The government presented evidence that Steven Hammond called an emergency dispatcher to ask if it was OK to burn — roughly two hours after they already lit the fire. His attorney said in court that Hammond called the land bureau beforehand.

The government acknowledged that the next fire, in 2006, was intended as a defensive move. Steve Hammond set backfires to keep a lightning-caused fire from burning onto the Hammonds’ ranch and hitting their winter feed.  But the government said Steve Hammond lit up on the flanks of a butte, despite a countywide burn ban and the knowledge that young part-time firefighters were camped up higher. Their crew boss spotted the fires, which were set at night, and moved the crew, but campers and others were in danger.

The two men were indicted and convicted in 2010 on federal arson charges. On top of sentencing for arson, they also faced sentencing under the federal Antiterrorism and Effective Death Penalty Act of 1996, which reads in pertinent part:

SEC. 708. ENHANCED PENALTIES FOR USE OF EXPLOSIVES OR ARSON CRIMES.

    (a) In General.--Section 844 of title 18, United States Code, is 
amended--
            (1) in subsection (e), by striking ``five'' and inserting 
        ``10'';
            (2) by amending subsection (f) to read as follows:

    ``(f)(1) Whoever maliciously damages or destroys, or attempts to 
damage or destroy, by means of fire or an explosive, any building, 
vehicle, or other personal or real property in whole or in part owned or 
possessed by, or leased to, the United States, or any department or 
agency thereof, shall be imprisoned for not less than 5 years and not 
more than 20 years, fined under this title, or both.

Hammonds’ lawyers argued that the Antiterrorism and Effective Death Penalty Act of 1996 did not apply to the Hammonds — after all, they weren’t terrorists.

But the government argued that it didn’t matter.  The portion that dealt with enhanced penalties for explosion and arson crimes did not say the defendant HAD to be a “terrorist”.

You can understand why this was part of the law.  Timothy McVeigh blew up the Murrow Federal Building in Oklahoma City on April 19, 1995, killing 168 people, including children.  The assumption behind Section 708 of the Antiterrorism and Effective Death Penalty Act of 1996 (quoted above) was… well, if you are blowing up or setting fire to federal property, you must be a terrorist.

To his credit (in my opinion), U.S. District Judge Michael Hogan opined that although Section 708 applied to the crime committed by the Hammonds, Congress did not intend it to apply to people like the Hammonds.  A five year prison term would be unconstitutional as cruel and unusual punishment, the judge said.  “It would be a sentence which would shock the conscience,” Hogan added before sentencing Dwight to three months and Steve to one year.

The two men served their time, but the District Attorney appealed the case to the Ninth Circuit.  The Ninth Circuit reasonably ruled (in my opinion) that Section 708 set out a mandatory sentence of “not less than five years”.  The words “shall be” (which I emboldened above) are not “may be”.

So, the Hammonds were ordered back to prison to serve a five year sentence each.  They are supposed to start serving today.

But believe it or not, this has little to do with the Hammonds’ sentence.

Federal agencies own and regulate huge chunks of land in western states like Oregon and Nevada.  The United States of America holds deed to three-fourths of Harney County. Ranching done for a century and more is under pressure from environmentalists, recreationalists, and hunters.

fed_landuse

As such, those with anti-government views, particularly in western states, often focus on the federal government ‘s land-use policies.  The plight of the Hammonds has become a rallying call for one militia and patriot group after another. Men who see tyranny in federal acts are standing for the two men.  The Hammonds’ case — and the change to their sentencing, just further fed into views of a tyrannical federal government out of control.

For example, the federal government sued the Hammonds for $1 million the costs of fighting the fires that they set.  In late 2014, the Hammonds settled the lawsuit, agreeing the federal government $400,000. That has been paid.

But the settlement also required the Hammonds to give the land bureau first chance at buying a particular ranch parcel adjacent to public land if they intended to sell. For some, this is evidence that the government was going after the Hammonds in order to increase its property holdings — a “land grab” the “militia” members would say.  There is little evidence to support that.

So how did the yahoos get involved?  Well, on Saturday, members of the militia attended a demonstration in Burns, Oregon.  The purpose was to protest the Hammonds’ case. After the protest, the militiamen drove to the wildlife refuge and took it over.

It seems that the militiamen may have initially planned to seize the wildlife refuge headquarters in order to establish a “sanctuary” where the Hammonds could go to evade prison.

One of the most outspoken of the militia-terrorists is Ammon Bundy, whose father Cliven Bundy became a Fox News star in 2014 for his armed standoff in Nevada with the federal government over cattle-grazing rights. (see earlier postings about that controversy).  His brother Ryan is another occupier.

What do they want?  Ammon talked to some press people:

The group is demanding that the Hammonds be released and that the federal government give up control of the Malheur National Forest.

As Ammon Bundy sees it, the locals are “not strong enough” to stand up for themselves, so the militia must act as the “tip of the spear” and lead the fight on behalf of the locals.

Thus, Bundy and his fellow militiamen have seized the headquarters of the Malheur National Wildlife Refuge — located in a remote area some 50 miles southeast of the city of Burns — in hopes of creating a “base” where “patriots” like themselves can come, with their guns, to live and make their stand against the “tyrannical” federal government.  Several pickup trucks blocked the entrance to the refuge Sunday, with armed men wearing camouflage and winter gear stationed outside.  The exact number of armed men is unknown. It’s worth nothing that the Malheur National Wildlife Refuge visitors’ center is probably one of the least critical spots to occupy in all of the United States.

So far, it’s not going well for these “patriots”.  It turns out that the Hammonds don’t actually want the militia’s help — or at least, not anymore.

At first, according to the Oregonian, the Hammonds “accepted the militia’s offer of help to avoid prison.” But they “changed their minds after being warned by federal prosecutors to stop communicating with the militia” and have now “professed through their attorneys that they had no interest in ignoring the order to report for prison.”

Ammon also tried to recruit residents from the surrounding area, reportedly meeting with 10 or so locals, but they all turned him down.

The Oregonian interviewed some locals who expressed sympathy for the Hammonds and for the militia’s “constitutional arguments” but ultimately rejected the militia for its extremism.

The militia, the local fire chief told the newspaper, “seems like a bunch of people ready to shoot. I don’t want that in my county.”

Chatter on right wing blogs about the story is muted.  Breitbart News hasn’t touched it, except for one transitional paragraph at the start of a story recapping the Cliven BBundy matter in Nevada.

Texas Sen. Ted Cruz said he hoped that the protesters would step aside, adding that “our prayers right now are with everyone involved in what’s happening with Oregon, and especially those in law enforcement that are risking their lives.”

“Every one of us has a constitutional right to protest, to speak our minds. But we don’t have a constitutional right to use force and violence and to threaten force and violence on others,” he said. “And so it is our hope that the protesters there will stand down peaceably, that there will not be a violent confrontation.”

Florida Sen. Marco Rubio decried the occupation as “lawless” and urged those involved in the standoff to pursue what they wanted through more lawful, constructive means.

But that’s not what they intend to do.  According to an Oregonian reporter…

Is the situation dangerous?  Not last night.  There was virtually no law enforcement presence of any sort.

But now, as the sun comes up, the FBI has arrived and set up a briefing center.  The Forest Service, Bureau of Land Management, and local schools in the area are closed today.  I feel bad for The City of Burns Police Department which has three officers – the Chief and two officers – and an administrative assistant.

All told, this appears to be an act of terrorism.  When it comes to the Hammond arsons — yes, I can easily see why that was NOT terrorism.  But armed men taking over a federal building and demanding land — that’s insurrection, if not domestic terrorism.

And needless to say, the disparity in news coverage as well as law enforcement response, which compared to — say — Ferguson (where protesters had no guns and took no federal property) is astounding.  Also, they are being called “protesters”, rather than terrorists.

It is unclear how this will play out.  But soime people are serious.  Here’s one guy saying the Bureau of Land Management (BLM) is a tyrannical agency so he has made a suicide video and has promised to die for “the constitution.”

P.S.  Most of Oregon used to be Indian land.  Now we see a bunch of white guys complaining about a tyrannical oppressive government.  Irony.

To be continued….

UPDATE:  The terrorists want you to join them “to prevent bloodshed”…

UPDATE:  This is a slow-moving story.  I guess the government tactic is to wait them out until they get bored.  Which means no developments for days, weeks, or maybe even months.  But….

I guess “Patriots For God and Freedom’s Constitution of Citizens Together United for American’s Constitutional Second Amendment Crusaders and OathKeepers” was taken.

Anyway, the posted some signs and it looks like they are running low on the letter n.

ZZ2C6EEF92

ANOTHER UPDATE: HuffPo says the “militia” wants a standoff with the FBI, but the FBI isn’t taking the bait:

The FBI is working closely with state police, and FBI officials are busy establishing a public information office in Burns. But due to a number of factors — the crisis is unfolding in a remote part of Oregon; it doesn’t appear to be a life-or-death situation; and there are no hostages involved — law enforcement officials want to avoid unnecessarily escalating the standoff, the source said. The FBI instead hopes to get a better handle on the situation over the next few days.

The FBI will not be releasing specific information about law enforcement movements, but it is working with local law enforcement agencies to “bring a peaceful resolution to the situation at the Malheur National Wildlife Refuge,” officials from the bureau said in a statement.

***

For now, there are no sirens, no police cars zooming to the seized building and no SWAT teams arriving in armored vehicles. In the parking lot of the refuge’s headquarters building, journalists mingle freely with activists. The 30-mile stretch of road between Burns and the Malheur National Wildlife Refuge, where the militants are holed up, is snowy and barren.

Below the fold…. The Onion summarizes everything

How Conservatives Plan To Redistrict In Their Favor

There is a case before the Supreme Court right now called Evenwel v. Abbott, and it is the most important voting rights case since the Court’s conservative majority gutted the Voting Rights Act (VRA) in 2013.

The case deals with redistricting — how you draw the lines to determine who votes in what congressional district.  What the conservatives want to do is gerrymandering — the manipulation the boundaries of an electoral constituency so as to favor one the GOP.

Right now, districts are drawn based on the number of people in each district — each district needs to have the same number of people.  But if conservatives get their way, legislative lines will be drawn based on eligible or registered voters instead of total population, thus not counting children, immigrants (documented and undocumented), prisoners, and other nonvoters. If that happened, districts would become older, whiter, more rural and more conservative, with 55 percent of Latinos, 45 percent of Asian Americans and 30 percent of African Americans excluded from political representation. The same communities most harmed by the gutting of the VRA would see their political influence further diminished.

The arguments for and against this were heard yesterday in the Court. The court appeared divided on how to proceed. Chief Justice John Roberts, who authored the opinion dismantling a key part of the VRA, expressed sympathy with the plaintiff’s argument. “Well, it is called the one person, one vote,” Roberts said. “That seems to be designed to protect voters.”

On the other hand, Justice Sonia Sotomayor took the position that states have not just a “voting interest” but “also a representation interest.” She elaborated: “A state has to be able to say—I think just as the federal government did—the legislature is protecting not just voters; it’s protecting its citizens—or noncitizens. The people who live there.”

“What we actually want,” Justice Stephen Breyer said, “is the kind of democracy where people, whether they choose to vote or whether they don’t choose to vote, are going to receive a proportionate representation in Congress.”

The Notorious RGB wondered aloud if this means that states were wrong when, prior to 1920, they including women for districting purposes.  That, she correctly mused, seemed absurd, and if the framers didn’t want to include women (for districting purposes), they would have said so (or not counted them in the census).

The swing vote on so many of these cases, Justice Anthony Kennedy. He seemed to be searching for a middle ground between the plaintiff’s claim of “voter equality” and the longstanding principle of “population equality.”

Unlike the VRA case in 2013, the civil-rights groups defending “one person, one vote” sounded confident after the oral arguments. Nina Perales of the Mexican-American Legal Defense Fund said she was “very heartened” by the questions the justices asked.

But you can never tell.  Keep an eye out for this one.

 

Trump May Have Hit The Ceiling

Donald Trump has defied political pundits for months now.  When he first attacked John McCain, the thought was that it would kill him in the polls, but then he went up.  And that’s been the story for over four months now.  He keeps on appealing to the worst-of-the-worst conservative base and his numbers go up.

But many are now saying what I have always said.  Yes, he has a strong base, but he has a low ceiling.  I have put that ceiling on mid-30% of Republicans.  I don’t think he can get much higher than that.

Yesterday, Trump crossed a line.

Donald J. Trump called on Monday for the United States to bar all Muslims from entering the country until the nation’s leaders can “figure out what is going on” after the terrorist attacks in San Bernardino, Calif., an extraordinary escalation of rhetoric aimed at voters’ fears about members of the Islamic faith.

A prohibition of Muslims – an unprecedented proposal by a leading American presidential candidate, and an idea more typically associated with hate groups – reflects a progression of mistrust that is rooted in ideology as much as politics.

Mr. Trump, who in September declared “I love the Muslims,” turned sharply against them after the Paris terrorist attacks, calling for a database to track Muslims in America and repeating discredited rumors that thousands of Muslims celebrated in New Jersey on 9/11. His poll numbers rose largely as a result, until a setback in Iowa on Monday morning. Hours later Mr. Trump called for the ban, fitting his pattern of making stunning comments when his lead in the Republican presidential field appears in jeopardy.

Saying that “hatred” among many Muslims for Americans is “beyond comprehension,” Mr. Trump said in a statement that the United States needed to confront “where this hatred comes from and why.”

“Until we are able to determine and understand this problem and the dangerous threat it poses, our country cannot be the victims of horrendous attacks by people that believe only in jihad, and have no sense of reason or respect for human life,” Mr. Trump said.

That was too much, even for Republicans who have avoided taking shots at him.  Every GOP candidate spoke against this.  Jeb Bush called it “unhinged”.  Others called it “unamerican”. The former vice president, Dick Cheney, said Mr. Trump’s proposal “goes against everything we stand for.” And others.

Cruz, who rarely distances himself from Trump, took a small step away, saying “I do not believe the world needs my voice added to that chorus of critics” referencing the large group of Republican and Democratic presidential candidates who have criticized the plan, adding “I commend Donald Trump for standing up and focusing America’s attention on the need to secure our borders.”  But then he tweeted how he will always defend religious liberty.  So… a VERY small step away — small enough to still pat The Donald on the back.

But Cruz stands alone in his weak condemnation.

GOP lawmakers have gone to the House floor telling Trump to drop out of the race.

St. Petersburg Mayor Rick Kriseman (D) tweeted late Monday that he was barring Trump from his city “until we fully understand the dangerous threat posed by all Trumps.”

Some are concerned and saying that, even as a candidate, Trump is a threat to national security.  There’s a lot of truth to this.  Trump’s rhetoric is the best recruitment tool that ISIS could have.

Trump is also getting burned overseas. Boris Johnson, the mayor of London, said: “The only reason I wouldn’t go to some parts of New York is the real risk of meeting Donald Trump.”

Then there is the media.  The Philly Daily News:

CVtm-aYWEAE2HoJ

Trump’s rationalization for this is pretty bizarre.  He keeps using the “what’s going on” phrase:

Here’s something else that’s telling: In an interview with ABC News this morning, Trump repeated various formulations designed to express generalized uncertainty and anxiety, over and over: “What is going on?” “We don’t know what is going on.” “We have to figure things out.” “What the hell is going on.” “We have to figure out what’s going on. Something is happening that’s not good.” “Until our country’s Representatives can figure out what is going on, we have no choice but to do this.”

The details don’t matter in the least. What matters is that Trump is speaking to a basic sense among his supporters that something is going on, thatsomething is wrong. He is willing to admit this and speak to the need to do something about it, even something drastic or “frankly unthinkable.” If that offends the politically correct and corrupt media, which is probably complicit in this American decline in any case, all the better.

Details, indeed, don’t matter. On the radio this morning, I heard a CNN interviewer ask exactly how banning Muslims from entering the country would be done, since religion does not appear on passports.  Trump, obviously speaking off the cuff, said in essence, that the customs people would ask them “Are you Muslim?”

Right.  I see a few flaws in that.approach.  From a practical standpoint (they will lie) and, oh by the way, can it get MORE unconstitutional?  I think not.

Trump compares his policies to Roosevelt’s during WWII, but unfortunately for Trump, most people view Japanese internment as a BAD part of our history.  And Trump is getting compared to Hitler today, more than Roosevelt.

Will it deter Trump die-hards?  Of course not.  CNN and NBC News interviewed a number of Trump supporters in South Carolina, and asked them to react to the new “plan.”.  Here’s what they said:

“I don’t want ’em here. Who knows what they gonna bring into this country? Bombs? ISIS? What?”

“That’s a very prudent idea. I think that he’s done due diligence when he makes that statement. We have to protect our American citizens first.”

“We just let terrorists into this country.”

“Somebody just needs to go in there and take control of this. It’s going rampant, and I’m worried about America. Worried about our safety. They’re getting in. They need to be stopped.”

“I think it’s a good idea. With everything that’s going on in the world right now — it sounds harsh, but reality is reality.”

“I’m a veteran paratrooper. Been in three different campaigns and two different wars. Both Iraq and Afghanistan. And I’ve had too many brothers and sisters lost over there in those two wars to just let them come here free range in our country now. It’s a kick in the face to every veteran there is that’s fought in those wars, to us trying to protect our homeland from them coming in.”

As CNN’s reporter put it: “No one here we spoke with had a problem with the plan.”

It’s too soon to see if this has any effect on his polling numbers.  But given the VERY LOUD outcry, I don’t expect him to go up, as he usually does.  I think this propels him into the ceiling.

Actually, it might be polls that drove this.  According to one poll of likely Iowa caucusgoers, Ted Cruz is on top in Iowa at 24%, followed by Donald Trump (19%), Marco Rubio (17%), and Ben Carson (13%).

The real issue isn’t Trump, but the GOP’s reaction to it.  So far, the party spokesmen have said nothing.  (Reince Pribus simply has said, “I don’t agree”).  But White House press spokesman Josh Earnest said it best:

“The Trump campaign for months now has had a dustbin of history-like quality to it, from the vacuous sloganeering to the outright lie to even the fake hair—the whole carnival barker routine we’ve seen for some time now… The question now is about the rest of the Republican party and whether or not they’re going to be dragged into the dustbin of history with him.”

Florida Can No Longer Lock Mentally Disabled People And Forget About Them

Fifteen years ago, J.R. — an intellectually disabled man who “functions as a seven-year old.” — was charged with sexual battery, but he was never tried because a court found him incompetent to stand trial. Instead, J.R. was involuntarily committed to a residential mental facility by a court order that contains no end date.

End of story.  You see, under Florida law, the only entity that can order people like J.R. to be released is the court that originally ordered those people to be committed. And those courts have no obligation to conduct periodic reviews of whether institutionalized people.belong in a mental institution.

J.R. for example did not get a hearing since 2005.

I think the gravity of that needs to sink in.  Obviously, there was a competency hearing of some kind, so J.R. received “due process” under the Constitution.  Yet, he is in effect incarcerated indefinitely, even though he was never convicted of a crime.  And that’s a huge constitutional problem.

Fortunately, in a decision handed down by the Eleventh Circuit federal appeals court yesterday, this is no longer permissible.

“A state must release a person who is involuntarily committed if the grounds for his commitment cease to exist,” Judge Beverly Martin explained in her opinion on behalf of a two-judge panel. That constitutional requirement, however, “is toothless if a state does not periodically review whether the grounds for commitment are met.”

Specifically, Judge Martin notes, J.R. was committed under a law that permits the institutionalization of people who lack “‘basic survival and self-care skills to such a degree that close supervision and habilitation in a residential setting is necessary and, if not provided, would result in a real and present threat of substantial harm to the person’s well-being’ or would leave the person ‘likely to physically injure others if allowed to remain at liberty.’” J.R. may very well have presented a danger to others at the time of his confinement, but he has now lived more than a decade in a facility where he could learn coping and socialization skills that may eliminate that danger. He’s also been convicted of no crime.

At the very least, Martin’s opinion establishes, he should not remain confined forever because no one has bothered to look into whether his commitment can still be justified.

It’s some small progress in the law recognizing the rights of the mentally ill.

The Back End Of The Kentucky Court Clerk

It looks like Kentucky County Clerk Kim Davis doesn’t want to go back to jail after all.

Kim Davis, the embattled Kentucky county clerk, at the center of the dispute over gay marriage and religious liberty, appeared to back down from the threat of more jail time Monday, saying while she still refuses to authorize marriage licenses, she will not interfere with a deputy clerk who began providing them more than a week ago.

Davis returned to work Monday, her first time in the office since her high-profile release from the Carter County Detention Center last week. Emotional and flanked by her son, Nathan, Davis read a statement outside the courthouse, bemoaning that her deputy clerks have been caught in the middle of her case.

“If any of them feels that they must issue an unauthorized license to avoid being thrown in jail, I understand their tough choice and I will take no action against them,” she said. “However, any unauthorized license they issue will not have my name, my title or my authority on it. Instead, the license will state that they are issued pursuant to a federal court order.”

Great. Fine. Wonderful. Now go away.

Breaking: Kim Davis Released

Details coming.

UPDATE – 1:00 pm:  The contempt order was lifted by a US district court judge.  Unclear if it was the same judge who gave the contempt order or if it was lifted on appeal.

UPDATE – 1:15 pm:  It was the same judge:

A federal judge ruled Tuesday that a Kentucky clerk who has refused to issue marriage licenses to same-sex couples may leave prison — as long as she doesn’t interfere with the licenses that her deputies have been granting since her incarceration last week.

U.S. District Judge David Bunning ordered Rowan County Clerk Kim Davis released, and said that if she did not follow his guidance, “appropriate sanctions will be considered.”

Davis’ attorney, Mat Staver, told NBC News that accommodation was unlikely to suffice.

“We’re back to Square One,” Staver said. “She’s been released, but there’s been no resolution.”

Bunning’s order also requires the five deputy clerks in Rowan County to file status reports every 14 days detailing their compliance with his earlier orders that the office issue licenses to same-sex couples in accordance with a June U.S. Supreme Court ruling.

Davis, 49, has repeatedly defied the courts, saying that authorizing the licenses would violate her Christian beliefs. Arguing that her religious freedom is being compromised, she has asked state officials to develop alternative ways for the licenses to be issued without requiring her to authorize them.

Bunning ordered her jailed last Thursday, and she has become a national symbol of resistance to gay Christian supporters have rallied outside the lockup daily.

Mat Staver is a terrible lawyer.  Even Fox News calls him out for his stupidity:

[Fox News host Keith] Jarrett also called out Davis’s attorney [Mat Staver], who said it was “questionable” if the Supreme Court had the “constitutional authority” to rule on same-sex marriage.

“Whether the Supreme Court has constitutional authority?” the Fox News host said. “Article III Section 2 of the Constitution gives the Supreme Court constitutional authority to decide constitutional issues!”

Jarrett added that Staver’s statement appeared to be “stunningly obtuse.”

You may recall that prior to becoming a Fox News person, Keith Jarrett was THE main guy at Court TV for many many years.

Anyway, Staver is simply wrong when he says we are at square one.  Her clerks have been issuing the licenses, and will continue to do so.  In fact:

During proceedings on Thursday, Davis was offered to avoid jail if she allowed her deputies to issue the marriage licenses. She refused, and on Friday they began issuing them. The release order requires that Davis “shall not interfere in any way, directly or indirectly, with the efforts of her deputy clerks to issue marriage licenses to all legally eligible couples.” If she refuses — as she seemed to promise to do last week — she would again be held in contempt.

So basically, Davis caved.  She accepted an offer that she rejected last week.  Here’s the order:

Kentucky clerk Kim Davis ordered released from jail

UPDATE – 3:00 pm:  I suspect the lawyer is talking out of turn:

A CNN journalist at the jail reported that according to her attorneys, Davis “has not changed her mind” and intends to bring the licensing process to a halt all over again when she’s back on the job.

“The problem here is that the attorney says she has not changed her mind, that Kim Davis is adamant that as long as her name appears on those marriage licenses, she objects and she will attempt to stop those licenses from being distributed,” CNN correspondent Martin Savidge said during a live broadcast.

Well, if she “intends to bring the licensing process to a halt” then she is violating the terms of her release.  That would be VERY serious trouble for her.  Her lawyer can SAY this, but it’s easy for him to say since she will end up paying the cost.

So she’s out, and here she is with Ted Cruz and her husband, who is NOT playing Lenny in “Of Mice and Men” (that’s just the way he dresses):

UPDATE – 3:45 pm: Heaven help me….

Huckabee is on stage with her. Ted Cruz? Well, he had her picture with her (see above), but otherwise, his trip seems to be a bust.  Huckabee had staffers there a few days ago, and he has inserted himself there front and center.

Digby:

Kim Davis’ inane lawyer upon her release from jail:

“She can never recover the past six days of her life spent in an isolated jail cell.”Too bad she wasn’t free to just quit her job — the solution all the free-market wingnuts prescribe for every other complaint a worker might have against her employer. Oh wait, she was.

Huckabee Needs To Attend Just One College Level Course On The Law

As far as conservative Christians candidates go, I always thought that Mike Huckabee was a slight cut above the rest.  He doesn’t seem dogmatic, and he was governor at one time.  So you would think that he would have some sense, while also being true to his conservative principles.

But this past week he has proved to be either a guy who thinks his followers are idiots, or perhaps he is an idiot.

It’s one thing to lend support to Kim Davis, the Kentucky law clerk now in jail for contempt of court because she refuses to issue marriage licenses to same-sex couples.  But the sheer ignorance coming from Huckabee in relation to that support is amazing.

Let’s start with this Huckabee quote:

“Gavin Newsome in San Francisco as mayor, performed same-sex weddings, even though it was illegal. Did he ever get put in jail? He most certainly did not.”

Nnnnope.  Gavin defended himself:

Put another way, bans on same-sex marriage had not been adjudicated illegal, nor was their a court order telling Newsome to stop issuing same-sex marriage licenses.  Once there was a court order, he stopped.  He followed the federal court order.

Kim Davis, as Huckabee cannot seem to get through his head, is in jail for violating a federal court order on a matter that had been fully judicated.

In other words, if Newsome had continued to issue marriage licenses despite the federal court order, THEN he would be in contempt of court, and like Kim Davis, could have been fined and put in jail.

Huckabee is also one of those guys who thinks Davis is like Rosa Parks, a citizen denied her rights by the government.  In actuality, she is George Wallace standing in the doorways of the University of Alabama — someone who is acting on behalf of the government who is denying rights to citizens.

And then Huckabee also said this:

“Jeffrey Dahmer got bail, Albert DeSalvo, the Boston Strangler got bail, John Wayne Gacy got bail. Kim Davis [the Kentucky clerk], because she followed her convictions is put in jail, and is not given bail.”

Is he kidding with that remark?  Does he know what “bail” is?

It is something criminal defendants get while they are being held awaiting criminal trial.  Let’s ignore that fact that Dahmer and other serial killers didn’t get bail AFTER they were convicted.  Let’s just point out that…. Kim Davis is not getting a trial.  And she is not a criminal defendant.  Congress vested federal courts with incredible power to “punish by fine or imprisonment, or both” any individual who disobeys or resists their dictates. This is what’s known as courts’ civil contempt power, and may include orders, judgments, instructions to appear, or other rules.

It’s comparing apples to oranges.  This, I suppose, was Huckabee’s clumsy way of trying to make the point that Kim Davis is being treated worse than Jeffrey Dahmer.  What horror!!  But does anyone really buy that?  Even Davis supporters?  Davis, unlike Dahmer, can get out of jail anytime she wants to.  And she can do it without changing her beliefs.  All she has to do is (a) agree to do her job; (b) resign or (c) allow others to do her that aspect of her job.  Dahmer, on the other hand, had no control over his future.

Ted Cruz is going to visit her now in jail, too.  Prepare for more absurdity.

Meanwhile, she has filed an appeal of the contempt of court penalty.

Here’s a good read: 5 Myths About Kentucky County Clerk Kim Davis You Shouldn’t Fall For

Kim Davis Is A Footnote To The Same-Sex Marriage Victory

I’m on vacation, but I am not completely off the grid.  I just have a higher bar (this week)n as to what interests me enough to blog about.

Checking in, I see not much has changed.  Trump is still testing the bounds of open bigotry.  Ho hum.

And I see that Kim Davis, who I wrote about last week, has achieved mainstream status.  She’s all over my Facebook.  Since I last wrote about her, she has been denied an appeal to the US Supreme Court, so basically, she has no legal recourse anymore, and she has to start issuing marriage licenses to gay and straight couples.

She is quite adamant about not doing it.  Her lawyers say it is “impossible” for her to do it.  Davis released a statement released yesterday in which she wrote: “To issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience. It is not a light issue for me. It is a Heaven or Hell decision. For me it is a decision of obedience.”

Well, isn’t that special?

She has become the spokesperson for religious hypocrisy too.  Despite her claims to literal biblical interpretation, she was married and divorced three times — in 1994, 2006 and 2008, according to U.S. News & World Report.  She gave birth to twins five months after she divorced her first husband. The father of those twins was her third husband, according to the records.  Her second husband adopted the twins, the news magazine said.

CN_QfbGVAAAtPtbWell, isn’t THAT special?

It seems to me that if she is working under God’s authority, then God should provide her a salary, and the state of Kentucky should not.  Or, as many many many people have said, if she cannot do her job, she should resign (she is an elected official).  The religious objection is a serious one, but she’s misusing it.  Think of it this way. Someone who objects to war due to his religious conscience has a right to be a conscientious objector and not serve in the military, even were there to be a draft. But he does not have the right to serve as a military officer, draw a paycheck from the military and then substitute his own personal views of when war is justified for that of the government. The same applies here.

Today is D-day — Davis Day — as she has to return to federal court on a contempt charge.  She is facing fines and imprisonment.

CN_RmNXWIAAzGUBI can see why this has national media attention.  This is a conflict for which there is no middle ground.  No compromise.   On one side are five same-sex couples who want their licenses in their own county; on the other is Davis, who wants to be free to refuse them and send them elsewhere. A court could hold for the plaintiffs and order Davis to do her job, or it could hold for Davis and tell the couples to go elsewhere. Those are the only two options.

Her lawyers at Liberty Counsel are boneheads.  They made a grievous error in advising Davis to defy the court’s order. And God knows the firm is easy to mock. Its website features a statement by Davis that “to issue a marriage license which conflicts with God’s definition of marriage, with my name affixed to the certificate, would violate my conscience”—and beneath it, a request for a $25 donation in exchange for a book in which “two nationally-acclaimed real estate entrepreneurs share biblical principles to revolutionize your work and family life, and give you the courage to stand up for what is right.”  When you look all that Liberty Counsel has done for Ms. Davis, you wonder if they have Ms. Davis’ best interests at heart, as opposed to their own.  Such is the state of religion today.

But back to Kim.  Guess what?  She loses.  And it is not because she is Christian.  It is because we are a nation of laws.  Not religion.  The two can co-exist, but if you think religion trumps law…. well, don’t complain when you get called the American Taliban.

UPDATE:  Via Facebook, a not-yet-published interview with Rowan County District Attorney Cecil Watkins:

Exclusive. Just conducted an interview with Cecil Watkins, the Rowan County Attorney. Watkins (who to my knowledge) hasn’t given any interviews.

Watkins indicates that Kim Davis “does not represent” Rowan County and is not representative of its inclusive values.

From Day One, Watkins told David I “will not and cannot support” you in her defiance of the law. Not only that he was clear he would not represent her as the law in the case of same sex marriage is clear.

While he has no stance on same sex marriage, well-established federal law must be followed.

Watkins wanted to emphasize several other things.

First that everyone who works at the courthouse has endured cursing as they enter the building. And it’s not just at her office. Everyone in the courthouse is scared to come to work.

Second that Liberty Counsel will leave Kim Davis high and dry when this charade is over. Watkins thinks the funds they raise off the case should go to Rowan County.

Finally and most importantly he has learned that deputy clerks would issue lawful marriage licenses. They are simply afraid to do so. And if Judge Bunning instructs them to do so . . . they will.

Davis has put, in the words of Watkins, her employees and everyone in the courthouse in a “terrible position.”

Watkins, in his role as the County Attorney, will be in court tomorrow for the hearing at 11:00 in Ashland. He is pictured being sworn in.

Ed. Note – The takeaways from the Watkins interview are clear. Davis is acting alone in her zealous mission. Her conduct has terrorized not just her staff but everyone that works in the courthouse. And all for a foolish mission aided by out of state charlatan lawyers trying to raise money for their “religious liberty” mission.

Shannon Ragland
Kentucky Trial Court Review

UPDATE:

Fifth Circuit Strikes Down Texas Voter ID Laws

Oh, well.  Nice try, Texas — trying to prevent minorities from voting.  Among other things, the State of Texas tried to impose Voter ID laws because (they said) illegal immigrants were voting.  Of course, there was no evidence of this.  Just the opppsite — illegal immigrants (as the Fifth Circuit noted) try to AVOID government officials since the last thing they want to do is get caught.  So they’re not going to show up at the ballot box.

Texas’ new voter ID law would have hurt poor people.  21.4% of people making under $20,000 did not have a valid ID to vote. The Justice Department had argued that the Texas law, considered one of the toughest voter ID measures in the country, would prevent as many as 600,000 voters from casting a ballot because they lacked one of seven forms of approved ID.

This is a remarkable case, because the U.S. Supreme Court actually raised the standard regarding voter ID laws.  To win, the Justice Department could not just show a “discriminatory effect”, but rather, a “discriminatory intent”.  And apparently, the DOJ succeeded here.

The full opinion is below the fold.

SCOTUS Round-up: Three More Five-To-Four Decisions Today

Today is the last day of the SCOTUS term, and so they issued the last of their opinions.  The two biggest cases — on Obamacare and sames-sex marriage — came out at the end of last week, so a lot fewer people were paying attention this morning.  Here’s what happened:

(1)  DEATH PENALTY – The 5-4 decision in Glossip v. Gross was a win for conservatives who support the death penalty and viewed the case’s technical dispute over one state’s lethal injection methods.  The Supreme Court ruled that Oklahoma’s “drug cocktail” is not cruel and unusual punishment, despite the fact that it has resulted in some botched execution.  Scalia was especially snarky in his concurrence, starting with “Welcome to Groundhog Day” as he noted repeated attempts to abolish the death penalty for good.  He also said that those who seek abolition of the death penalty “reject the Enlightenment”.  (Odd!)

(2)  ENVIRONMENT – The Supreme Court in Michigan v. Environmental Protection Agency ruled 5-4 against EPA regulations to limit mercury emissions and other pollutants at power plants.  Substituting its judgment for the EPA’s the Supreme Court said the EPA’s decision to impose the regulations was not reasonable or necessary since it did not take into account the costs to utilities to make these changes.  Happy breathing, everybody!

CIrTeTxWEAEYP2U(3)  GERRYMANDERING – In a win for liberals (Kennedy siding with the liberal four), The Supreme Court in Arizona State Legislature v. Arizona Independent Redistricting Commission upheld Arizona congressional districts drawn by an independent commission and rejected a constitutional challenge from Republican lawmakers. The outcome preserves efforts in 13 states to limit partisan influence in redistricting. Most notably, California uses an independent commission to draw electoral boundaries for its largest-in-the-nation congressional delegation.

The Arizona case stemmed from voter approval of an independent commission in 2000. The legislature’s Republican leaders filed their lawsuit after the commission’s U.S. House map in 2012 produced four safe districts for Republicans, two for Democrats and made the other three seats competitive. Democrats won them all in 2012, but the Republicans recaptured one last year.

CIrN-hRWcAE46YlJustice Ruth Bader Ginsburg wrote for the court that there is “no constitutional barrier to a state’s empowerment of its people by embracing that form of lawmaking.” In dissent, Chief Justice John Roberts accused the majority of approving a “deliberate constitutional evasion.”  The justices have been unwilling to limit excessive partisanship in redistricting, known as gerrymandering. A gerrymander is a district that is intentionally drawn, and sometimes oddly shaped, to favor one political party.

Republicans employed an enormously successful strategy to take advantage of the 2010 census, first by winning state legislatures and then using that control to draw House districts to maximize their power. One measure of their success: In 2012, Republicans achieved a 33-seat majority in the House, even though GOP candidates as a group got 1.4 million fewer votes than their Democratic opponents.

Chief Justice got a little snippy by inserting “what chumps” into the opinion (see right).

UPDATE – LATE IN THE DAY 5-4 RULING is good for pro-choice advocates:

The U.S. Supreme Court agreed Monday afternoon to put a hold on court rulings that have reduced the number of abortion clinics in Texas.

Four of the court’s conservatives — Chief Justice John Roberts and Justices Antonin Scalia, Clarence Thomas and Samuel Alito — dissented.

A state law passed in 2013 required clinics providing abortion services to meet the same standards as ambulatory surgical centers, and it required doctors providing the services to have admitting privileges at nearby hospitals.

Women’s groups asked the Supreme Court to put an emergency hold on the effect of the law while they prepare an appeal to challenge its constitutionality. They say the law, which takes effect Wednesday, would force all but nine abortion clinics in the state to close.

“Overall, there would be a net reduction in abortion facilities of more than 75% in a two-year period,” they argue in their court filings. And the clinics that remain open would find it hard to expand their services.

So for now, enforcement of the Texas law is on hold and will remain so until the court decides whether to hear the full appeal.

UPDATE – EVEN LATER IN THE DAY 5-4 RULING is good for pro-choice advocates in North Carolina:

RALEIGH — A federal appeals court must reconsider whether North Carolina can issue “Choose Life” license plates.

The U.S. Supreme Court on Monday ordered the 4th Circuit Court of Appeals to reconsider its ruling last year that the state could not issue a license plate with an anti-abortion slogan unless it also issued a plate with the opposite point of view.

The order to rehear the case came after the justices ruled 5-4 last week that Texas could refuse to issue Confederate battle flag plates. In that ruling, the Supreme Court said plates are government property and don’t have to offer both sides of the debate.

The American Civil Liberties Union sued when lawmakers voted to offer the “Choose Life” plates in 2011. The appeals court said governments must offer both sides of the debate.

The ACLU said it was disappointed in the Supreme Court’s ruling and again asked the North Carolina General Assembly to offer a plate with a message supporting abortion rights.

“This case has always been about more than specialty license plates; it asks whether the government should be allowed to provide a platform to one side of a controversial issue while silencing the other,” ACLU of North Carolina Legal Director Chris Brook said in a statement.

The Other Case: Victory For Fair Housing

It won’t get as much press, but the Supreme Court decision in Texas Department of Housing and Community Affairs v. The Inclusive Community Project, Inc., is arguably as important as the Obamacare case.

The 5-4 ruling (PDF) found that the housing policies could be deemed discriminatory based on “disparate impact.” This means that plaintiffs could prove discrimination by showing that the impact of a housing policy was discriminatory.  That’s the way it has always been, but a bad decision today could have meant that plaintiffs would have to prove discrimination by showing a motive — a specific intent to discriminate.  In the absence of someone publicly admitting they are racist, this is very difficult — if not impossible — to prove. The impact would have been to essentially gut the Fair Housing Act of 1968.

While some of the ruling, written by Justice Kennedy and joined by the four liberal members of the court, turned on technical issues of statutory interpretation and precedent, the underlying theme was a finding by the Supreme Court that a lot of discrimination, in 1968 and today, is either unconscious or hidden:

[The law] permits plaintiffs to counteract unconscious prejudices and disguised animus that escape easy classification as disparate treatment. In this way disparate-impact liability may prevent segregated housing patterns that might otherwise result from covert and illicit stereotyping.

So, another good win today.

Same-Sex Marriage Still A Battlefield In North Carolina

This morning, North Carolina legislators in the GOP-controlled state House approved a measure that allows some court officials to refuse to perform same-sex marriage duties because of their religious beliefs.

House lawmakers agreed 69-41 to override Governor Pat McCrory’s veto of the bill, which the Senate had done last week​. The bill, now a law, allows magistrates and register of deeds workers the option to stop fulfilling their duties regarding gay marriages if they have “sincerely held religious” beliefs.

Once they seek an exemption from their duties, workers cannot perform any type of wedding for at least a six-month period. That inaction possibly could cause significant delays for couples wishing to marry.

It’s a dumb law, and I don’t know why it is important for NC to have, since I doubt any magistrate would feel right about causing six-month delays in ALL marriages.  More to the point, it is an unconstitutional law, and everybody knows it, so it just makes North Carolina look like a bunch of religious bigots.

UPDATE:  I did not know this

Several magistrates resigned after being warned that their oath of office stipulated they officiate for any couple with a valid marriage license. Two of these former magistrateshave filed suit against the state, arguing that they resigned under duress. They claim that they should not be forced to choose between their job and their religious beliefs, even if their beliefs prohibit them from performing their job in a way that serves all citizens.

From The “Seriously?” Files

First Amendment at work:

“When she went across the stage I just called her name out. ‘Lakaydra’. Just like that,” Ursula Miller said she shouted about her niece.

Miller and Henry Walker were two of the four people asked to leave Senatobia High School’s graduation ceremony for cheering.

Police at Northwest Mississippi Community College, where the high school ceremony was held, said the superintendent asked the crowd not to scream and to hold their applause until the end.

Otherwise, they would be asked to leave.

However, that wasn’t the end of it.

“A week or two later, I was served with some papers,” Miller explained.

The papers threatened to throw them in jail.

This being Mississippi, it should not come as a surprise that the school superintendent (who supported the arrest warrants) is white and at least two of the four people served were black.

Now, I understand that the superintendent wanted the crowd to hold its applause until the end, but if someone does not do that, it is not a “disturbance of the peace violation”.  Also, the First Amendment.

Maybe if they incorporated themselves before shouting….

Religious Bigots Use First Amendment Protections To Spew Hate…. Again

Another crazed anti-Muslim right winger — this one in Phoenix — is planning to hold a ‘Draw Muhammad’ Contest right in front of the Islamic Community Center.

The organizer of the event, Jon Ritzheimer, has held two protests in Phoenix since the Texas shootings. The chants and slogans at the protests are brash and hateful. Some supporters wear t-shirts that state, “(expletive) Islam.” Ritzheimer says he is using provocative methods to draw attention to a religion he believes at its core promotes violence.

“I want this to be about pushing out the truth about Islam,” said Jon Ritzheimer. “I’ve read the Koran three times… [Sure he has. – ed.] the ones flying the planes into the tower, those are Muslims following the book as it is written.”

A Facebook page dedicated to the event titled “Freedom of Speech Rally Round II” states: “This will be a PEACEFUL protest in front of the Islamic Community Center in Phoenix AZ… Everyone is encouraged to bring American flags and any message that you would like to send to the known acquaintances of the 2 gunmen.”

What this article at KPNX doesn’t mention is that Ritzheimer is actually leading a gang of bikers to stage this protest — and they intend to bring guns.

Ritzheimer anticipates possible problems because of the rally and says people should bring their guns.

“People are also encouraged to utilize (their) second amendment right at this event just (in case) our first amendment comes under the much anticipated attack,” the event’s Facebook page says.

Bikers will be there too, according to the post.

600 protester/biker/haters are expected in can properly be called a perfect storm of islamophobia, gun culture, and assholes.

To give you an idea of what kind of person Ritzheimer is, here’s a picture he proudly posted of himself at his Facebook page:

jerk

You Go, Girl — Uh — John Cole!

At Balloon Juice, John Cole – a better writer than me (not a high bar, I confess) — puts words to my sentiments:

[I]f one more motherfucker tells me that unless I stand up and yell “You go girl” every time Pam Geller opens her noxious piehole to spew venom that I am responsible for creeping Sharia and am a hopeless “dhimmi,” I’m going to kick them in the junk with a freedom boot. No, we don’t all have to stand up and provoke crazy people just to prove a point or to be assholes or to further freedom or whatever bullshit you want to peddle. I don’t have to pretend that a bunch of snotty French cartoonists shitting all over people is some sort of heroic endeavor worthy of an award or my complete admiration. You drew a cartoon intending on pissing off crazy people. Congratulations, you pissed off some crazy murderous psychos who reacted predictably. WOO- You! WTF did you think was going to happen? Now, exactly how have you advanced the cause of freedom? And yes, it is horrible that those scumbags murdered people. But are you surprised and what exactly did you accomplish?

I don’t have to pretend that because Geller provoked some loathsome creeps into attacking her backwoods hick hatefest, the first amendment is on the brink of falling and that I’m going to be praying five times a day at gunpoint by next week. Yes, legally, her free speech is protected by the Constitution, but that doesn’t mean I have to act shocked or surprised when some assholes want her dead and it doesn’t mean free speech as we know it is dying. That’s not being a pussy or bowing to the TERRAHRISTS, it’s just common sense. I don’t walk down the street calling women whores and sluts because I don’t want to get slapped in the face. I don’t run around and shit all over religious people just because I can even though I think it’s all just elaborate myths and folklore.

Just because you have first amendment rights guaranteed by the Constitution doesn’t mean that actions don’t have consequences. Crazy people react… crazily. Saying obnoxious things can have real world consequences. Pointing that out doesn’t make me a wimp or a coward, it makes me sentient. But, by all means, if you disagree, march on in to your boss’s office tomorrow and tell her/him to go fuck themselves and that you slept with their spouse. Don’t forget to demand your 1st Amendment rights after s/he fires you.

If blog posts could drop mics…. this one would.

Second Circuit Rules Against Mass Collection Of Phone Records

I haven’t written much about Ed Snowden and the huge, perhaps unconstitutional, mass surveillance of Americans, but this is too noteworthy to ignore:

A federal appeals court ruled Thursday that the National Security Agency’s controversial collection of Americans’ phone records, first revealed by Edward Snowden, is not legal under the Patriot Act.

The Second Circuit Court of Appeals held in the case, which was brought by the ACLU, that the telephone metadata collection program “exceeds the scope of what Congress has authorized.” The Court did not rule on a larger Constitutional issue and sent the case back down to a lower court for further proceedings.

The program gathers up bulk telephone records to enable targeted searches based on telephone numbers or other identifiers associated with terrorist organizations.

A three judge panel held that the text of the Patriot Act “cannot bear the weight the government asks us to assign to it and that it does not authorize the telephone meta date program.”

The Court said, “We do so comfortably in the full understanding that if Congress choses to authorize such a far-reaching and unprecedented program, it has every opportuntiy to do so, unambiguously. Until such times as it does so, however, we decline to deviate from widely accepted interpretations of well-established legal standards. ”

“This is a landmark ruling and it critically important decision, what it means going forward depends entirely on Congress, because this provision was set to expire on June 1st anyway,” said Steve Vladeck of American University.

The Court said it wouldn’t block the provision while the case is reconsidered at the lower court.

I would disagree that this is a “landmark ruling” because the Second Circuit did not reach the important Constitutional issue.  But it is important

The reason I haven’t written much about these mass surveillance issues is because I am largely on the fence about them.  If the NSA gathers up all the data relating to phone conversations — i.e., all conversations of everybody as to when and who they called and how long they talked — and that data sat on a computer somewhere and was never looked at by a pair of eyes until it became necessary (which it wasn’t 99.999999% of the time), is that an invasion of privacy that violates the Constitution?  I don’t know, but I tend to think not.  I tend not to give a damn.

And what if the conversations, texts, etc. themselves are collected?  Again, not sure I care.

But I can see why others might disagree.

The Battle For Same Sex Marriage: A Timeline Graph

I love this graph from an article in today’s New York Times.  It shows what states did for and against the idea of same-sex marriage.

SSMovertime

You can see that the anti-SSM movement got out ahead of the issue in the mid 1990s by enacting laws banning same-sex marriage.  I have no way of proving this, but I think that by making same-sex marriage an issue, it became, well, an issue.  And that motivated same-sex marriage proponents to organize and lobby and take the issue to the courts.  Once Massachusetts ruled that same-sex bans were unconstitutional in 2003, the floodgates opened.

I don’t think the floodgates opened because the notion of same-sex marriage became fashionable or popular.  I think they opened because once people started to examine and think about the issue, there was simply no constitutional (or even moral) reason for the government to discriminate against homosexual love.

But yeah.  If you had asked me in 1995 if there would be such a thing as legally-recognized gay marriage in this country, I think I would have answered “someday, but not in my lifetime.”  It is the great civil rights issue of my generation, and I really believe it will be over in June.

Same-Sex Marriage Case Being Heard In Supreme Court Today

Today, the US Supreme Court will hear oral arguments on Obergefell v. Hodges, one of several same-sex marriage cases brought to the Court.

Obergefell v. Hodges requires the Court to answer: “1) Does the Fourteenth Amendment require a state to license a marriage between two people of the same sex? 2) Does the Fourteenth Amendment require a state to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-state?”

The Washington Post has information on the lawyers who will be making the arguments.

SCOTUSblog is liveblogging the oral arguments.  Here are some snippets, as reported by SCOTUSBLOG:

[T]here was one interesting exchange between Justice Scalia and two of his more liberal colleagues. Scalia asked whether, if petitioners win, a minister who objects to same sex marriages could refuse to perform a civil same-sex wedding. Bonauto answered yes. Scalia pressed the point though, arguing that he could not understand how a state could permit somebody to hold a license to marry people if that person would not exercise the power consistently with the Constitution. After a little more back-and-forth, Justice Kagan reminded the Court that many rabbis refuse to perform weddings between Jews and gentiles, even though there has long been a prohibition against religious discrimination. Justice Breyer then chimed in and quoted the First Amendment. Ultimately, Justice Scalia seemed satisfied that a minister could refuse to perform those weddings… by Eric Citron 10:44 AM

And this…..

One very interesting aspect of the early argument was that it was primarily a set of questions about what “marriage” means as an institution, and accordingly, whether it is “irrational” or “invidious discrimination” to exclude gays and lesbians. As a consequence, you had some Justices emphasizing the “millennia long” definition of marriage as between a man and a woman, and other Justices — like Ginsburg — emphasizing the relatively new character of egalitarian marriage, now sponsored by the state governments, on which gays and lesbians were seeking to enter. You also had a kind of quirky historical dispute about whether ancient societies with their heterosexual definition of marriage could not be trusted (because they generally discriminated against gays and lesbians), or whether they could be, because they were generally more open to homosexuality outside the marriage context (Alito asked this question about Ancient Greece). There was a parallel line of questioning about whether bans on interracial marriage were as consistent as the “millennia long” definition of marriage as uniting a man and woman. Doctrinally, this all seemed to float somewhere above the bottom line question of whether states were discriminating against gays and lesbians or somehow marking them as less favored members of society… by Eric Citron11:05 AM
And…
So several Justices wanted to know, for example, whether a state could deny recognition to all marriages performed in another state. They were skeptical when the suggestion was that a state might be able to do that…. by krussell12:40 PM
And….
A little surprisingly, Justice Scalia asked tough questions of the State — he wanted to know why the text of the Full Faith and Credit provision did not extend to marriages… by krussell 12:38 PM
UPDATE (11:08 am):

This….

UPDATE #2:  Here are the audios of the arguments….

First question —

PART ONE

Fast forward to the 27:00 mark if you want to hear the “burn in hell” protester and Scalia’s quip afterwards.

PART TWO

Second question —

“Cake Is Speech”: The New Dumbest Thing Ever Said

Yes, cake is speech.

That’s what Indiana Baptist pastor Tim Overton told NPR’s Steve Inskeep yesterday morning, defending his state’s controversial “religious freedom” law.

No, it’s not some fringe theory: It’s shaping up as a core tenet of one “compromise” approach to religious freedom laws that’s under consideration, in the wake of the backlash to the Indiana law, which Overton fervently supported as written. It’s at the heart of the fix to the law Jeb Bush pushed Wednesday night with pro-gay rights Republican donors.

Here’s how the pastor tried to explain it: Critics who say Indiana’s Religious Freedom Restoration Act would let businesses routinely deny service to LGBT Americans are wrong. “I don’t think any RFRA anywhere would say, ‘I’m not gonna give you a hotel room, I’m not gonna give you a hamburger, or gasoline or groceries,’” Overton told Inskeep. “That’s outside the bounds.”

But just as a religious leader should be able to decide, according to the tenets of his or her faith, whether to preside over gay marriages, Overton argued, so should a florist or a baker get to decide whether his or her “artistic ability” should be part of a gay wedding.

I think most Americans would agree that a pastor like myself should not be compelled by the government to use my speech to support someone else’s perspective. I think that has parallels to the cake maker. The cake maker is using his or her artistic ability to make a cake and that cake communicates something. I think that cake is speech, that says ‘we celebrate this union.’ I just don’t think they should be forced by the government to use their speech to support someone else’s perspective….I would like the line to be drawn in services that involve speech.

When Inskeep asked how society would determine what type of service represented “speech,” Overton punted and said that would be up to courts. “I think that distinction will be played out in the court,” he replied. “All the legislature can do is pass principles to guide the court.” So is a pepperoni pizza “speech”?  Hey. judge, tell us…..

The Indiana Fix

The proposed new bill working its way through the Indiana state legislature today seems to negate the worst things about the RFRA law:

It doesn’t undue Hobby Lobby or other grievances.  The changes would not establish sexual orientation and gender identity as a protected class under the state’s civil right’s laws.  That will have to come another day.  All this does is say that the Indiana RFRA cannot be used to discriminate, nor can it be used as a defense in a lawsuit for discrimination.

On the other hand, you have to ask yourself…. if the original “unfixed” law did not discriminate, why are so many on the right claiming that their side “lost”?

UPDATE:  Angie’s List is having none of it.  Angie’s List, one of the first companies to object to Indiana’s religious freedom law, on Thursday morning said that the changes proposed by Indiana lawmakers did not go far enough in addressing the company’s concerns.

Oesterle said that as long as the Religious Freedom Restoration Act (RFRA) remains in place and Indiana does not provide further protections for gays and lesbians, Angie’s List will not expand its presence in the state, according to the Star.

“Employers in most of the state of Indiana can fire a person simply for being lesbian, gay, bisexual, transgender or questioning. That’s just not right and that’s the real issue here. Our employees deserve to live, work and travel with open accommodations in any part of the state,” Oesterle said in the statement.

Arkansas Governor Wisely Seeks To Avoid Same Headache That Indiana Has

Moments ago, Arkansas Gov. Asa Hutchinson said that he does not plan to sign the version of the religious freedom bill that currently sits on his desk and called on the state legislature to make changes before sending it back to him.

Hutchinson, who called the issue “divisive” and cited his own son as an example of someone urging him to veto the bill, made the announcement during a Little Rock press conference Wednesday morning.

The Arkansas House on Tuesday approved a religious freedom measure that mirrors the one Indiana Gov. Mike Pence signed into law in Indiana — sparking outrage from businesses, sports organizations and popular culture figures who said it opened the door to discrimination against gays and lesbians.

Hutchinson, a Republican in his first year in office, said Monday that he’d sign the measure — but that was when lawmakers were still trying to find tweaks that ultimately eluded them.

Bigots Get It

At yesterday’s press conference, Indiana Governor Mike Pence spent a great deal of time blaming the media for its representation that Indiana’s RFRA law allows businesses to discriminate against gay people.  “Not true”, Pence said.  Well, it is true if you read the actual law, and apparently, even the bigots think so:

WALKERTON, Ind. -A small-town pizza shop is saying they agree with Governor Pence and the signing of the controversial Religious Freedom Restoration Act.

The O’Connor family, who owns Memories Pizza, says they have a right to believe in their religion and protect those ideals.

If a gay couple came in and wanted us to provide pizzas for their wedding, we would have to say no,” says Crystal O’Connor of Memories Pizza.

She and her family are standing firm in their beliefs.

The O’Connor’s have owned Memories Pizza in Walkerton for 9 years.

It’s a small-town business, with small-town ideals.

“We are a Christian establishment,” says O’Connor.

The O’Connor family prides themselves in owning a business that reflects their religious beliefs.

We’re not discriminating against anyone, that’s just our belief and anyone has the right to believe in anything,” says O’Connor.

So, when Governor Pence signed the Religious Freedom Restoration Act into law, the family was not disappointed.

“We definitely agree with the bill,” says O’Connor.

When ABC 57 asked O’Connor about the negative backlash the bill has been getting for being a discriminatory piece of legislation, she says that’s simply not true.

I do not think it’s targeting gays. I don’t think it’s discrimination,” says O’Connor. “It’s supposed to help people that have a religious belief.”

I do believe that the Indiana RFRA legislation has now been sufficiently clarified, yes?

I mean, I guess … thank you, O’Connor family? You have done a great job showing exactly why this law is so awful, the kind of mean-spirited bigotry it was passed to enable, and the degree to which all of Pence’s talk of the Golden Rule and how Hoosiers are too nice to discriminate has been a shameless lie. You are the perfect voice for this, which is to say you are abhorrent, un-Christian people.

Of course we know the likely next chapter of this story: the O’Connor family goes whining to the right-wing media about how mean people have been to them (on Yelp, for instance) since they bravely expressed their bigotry and announced their intention to discriminate. Cry me a damn river.

By the way, what respecting wedding couple — gay or straight — would have pizza at a wedding?

The Indiana “Religious Freedom” Law Isn’t Like Past Laws

Last, week, Indiana Gov. Mike Pence stirred up controversy when he signed a “religious freedom” bill into law.  The law has businesses and civil rights groups up in arms and threatening — or in some cases pledging — to boycott the state.  Critics assert the law could be used by individuals and businesses to discriminate on the basis of religion — particularly against the LGBT community of lesbian, gay, bisexual and transgender individuals.

Pence has been trying to use the “nothing to see here” and “everybody’s doing it” defenses to the new law, which is why he’s loath to get into the law’s details and admit that the statute he signed is not just like the federal Religious Freedom Restoration Act and not just like most other states’ RFRAs.

At the Atlantic, Garret Epps has a good simple description of how the Indiana statute differs from most precedents:

[T]he Indiana statute has two features the federal RFRA—and most state RFRAs—do not. First, the Indiana law explicitly allows any for-profit business to assert a right to “the free exercise of religion.” The federal RFRA doesn’t contain such language, and neither does any of the state RFRAs except South Carolina’s; in fact, Louisiana and Pennsylvania, explicitly exclude for-profit businesses from the protection of their RFRAs.

Second, the Indiana statute explicitly makes a business’s “free exercise” right a defense against a private lawsuit by another person, rather than simply against actions brought by government.

So Indiana is trying to create a genuinely plenary zone of sanctioned discrimination, including every kind of entity and protecting discriminators from legal action from any direction. The first point carries it beyond SCOTUS interpretation of the federal RFRA in the Hobby Lobby case as covering “closely held” corporations, but not all for-profits. And the second means Indiana isn’t just protecting religious folk against the all-powerful government, but against the very targets of their discrimination.

Indiana Governor Plans To Sign Pro-Discrimination Bill Into Law

The signing would make Indiana the first state to enact such a change this year among about a dozen where such proposals have been introduced. The measure would prohibit state and local laws that “substantially burden” the ability of people — including businesses and associations — to follow their religious beliefs.  Conservative groups say the Indiana measure merely seeks to prevent the government from compelling people to provide such things as catering or photography for same-sex weddings or other activities they find objectionable on religious grounds.

It is difficult for me to understand how this is not akin to the fervently held religious beliefs that the races should not “mix” in marriage, and the anti-miscegenation laws that emanated from those beliefs. Of course, in 1967 the U.S. Supreme Court struck down those laws as unconstitutional in Loving v. Virginia. How is this any different from a 1960s lunch counter owner denying service to African Americans because of his religious beliefs (widely held at the time) that “Negroes” were lesser human beings and citizens than white folks?

Taken to their logical and extreme conclusion, such laws could allow someone to ask to be exempted from meeting the requirements of the Americans with Disabilities Act, if that person’s religion believed (as in much of the Old Testament) that physical infirmities were the result of the afflicted person’s sin (or that of his parents), and “my religion condemns sin rather than cooperating with it.”

But these debates and legislation are not fueled by the religious adherent’s condemnation of sin. Chances are, the florist who refuses to provide flowers for a gay wedding does not deny service to a bride who is on her second or third marriage. Jesus is silent about gay marriage, but roundly and emphatically condemns remarriage after divorce. The photographer who refuses to take pictures for a lesbian marriage (because it is against God’s will) should also decline to photograph a lavish and ostentatiously expensive wedding (Jesus talks a lot about the sinful nature of greed). If this were seriously about not serving sinful people, then obese people would be turned away from fast-food outlets as obviously living the sinful “lifestyle” of a glutton. If this were really about condemning sin, then service would be denied to all sinners, not just a particular sin among a particular, targeted group.

Make no mistake: These legislative bills, like the one about to become law in Indiana, are about exempting some people from having to comply with non-discrimination laws already in place for LGBT people, as well as pre-empting and forestalling any efforts to put such protections in place. This is old-fashioned discrimination all dressed up in ecclesiastical vestments and “religious freedom” language. But it is still discrimination, pure and simple, against a targeted group of fellow citizens. No amount of cloaking such legislation in the garb of “freedom of religion” is going to turn this sow’s ear into a silk purse.

Fortunately, big Indiana employers like Cummins Engine have opposed the law, and Gen Con, a major gamer convention, has threatened to pull out of Indianapolis if it becomes law. Indianapolis’ Republican mayor is concerned that it will send “the wrong signal” about his city and state. Which, to many, it will.

But the real prize is the NCAA, headquartered in Indianapolis.  The NCAA basketball championships are held every five years In Indiana, including this year.  Will this organization step up to the proverbial plate (wrong sports metaphor – I know) and pull out of Indiana? [UPDATE: NCAA says the Final Four games will go on in Indiana despite concerns over anti-gay bill ]

Good Briefs: Amicus Filings in the Supreme Court Marriage Equality Case

Last Friday was the deadline to submit amicus briefs to the Supreme Court in support of marriage equality. Over 60 different briefs were filed by various “friends of the court,” including coalitions, organizations, scholars, and individuals. Contained within them are a variety of arguments in favor of recognizing same-sex couples’ right to marry, ranging from the more legal and technical to the more historical and personal.

And a few odd ones.  Here is one from the Cleveland Choral Arts Association, complete with West Side Story lyrics and everything (it really gets going at p. 29)

Cleveland Choral Arts Association Amicus Brief by Equality Case Files

But there are obviously more serious ones that tackle the arguments made same-sex opposition.

Social conservatives still argue that because only different-sex couples can biologically produce children, only they should be allowed to marry.   But children actually present a compelling case for same-sex couples’ right to marry.  There are many amicus briefs to the court on this subject, from such organizations as the Donaldson Adoption Institute, the Child Welfare League of America, the North American Council on Adoptable Children, and Voice for Adoption.  Here is an excellent “Voices of Children” brief, filed by the Family Equality Council and COLAGE — it highlights the tens of thousands of children being raised by same-sex couples who have benefited or could benefit from their parents marrying.

Family Equality Council, et al., Amicus Brief by Equality Case Files

And you know the argument rooted in “traditional” marriage?  And how we can’t go changing the definition of marriage?  Well, the American Historical Association has something to say about that.  Their brief outlines the many ways marriage has changed over time. “The historical record contradicts attempts to cast marriage as serving any single, overriding purpose,” the historians write. “And it contradicts attempts to present marriage as a static institution so rooted in ‘tradition’ as to insulate it from constitutional challenge.” To the contrary, they note, “marriage has remained a vital institution because it is not static.”

Historians of Marriage & American Historical Association Amicus Brief by Equality Case Files

And finally, the religious liberty argument.  Conservatives attempt to justify marriage discrimination against LGBT people based on their religious beliefs.

But an amicus brief from a large coalition of religious organizations emphasizes that “civil recognition of same-sex relationships through lawful marriage is fundamentally consistent with the religious pluralism woven into the fabric of American law, culture, and society.” Many religious traditions now ordain gay and lesbian clergy, welcome same-sex couples and their families, and affirm the inherent dignity of LGBT people, including their right to marry someone of the same sex and have that union solemnized in faith. This, they point out, has no implications for those with different views, whose anti-gay religious beliefs and traditions will still be protected under the Constitution. Signers of that brief include leaders of the Episcopal Church, the UCC, various rabbinical associations and synagogues, the Unitarian Universalist Association, Muslims for Progressive Values, and LGBT groups from Presbyterian, Methodist, and Lutheran denominations.

Episcopal Church, et al. Amicus Brief by Equality Case Files

(HT: Equality Case Files.)

Senate Republicans Overstepping Their Authority

Can you imagine if this was 2006 and the Democrats did this to Bush?

A group of 47 Republican senators has written an open letter to Iran’s leaders warning them that any nuclear deal they sign with President Barack Obama’s administration won’t last after Obama leaves office.

Organized by freshman Senator Tom Cotton and signed by the chamber’s entire party leadership as well as potential 2016 presidential contenders Marco Rubio, Ted Cruz and Rand Paul, the letter is meant not just to discourage the Iranian regime from signing a deal but also to pressure the White House into giving Congress some authority over the process.

“It has come to our attention while observing your nuclear negotiations with our government that you may not fully understand our constitutional system … Anything not approved by Congress is a mere executive agreement,” the senators wrote. “The next president could revoke such an executive agreement with the stroke of a pen and future Congresses could modify the terms of the agreement at any time.”

Arms-control advocates and supporters of the negotiations argue that the next president and the next Congress will have a hard time changing or canceling any Iran deal — — which is reportedly near done — especially if it is working reasonably well.

It appears from the letter that the Senators do not understand our constitutional system or the power to make binding agreements.

The letter states that “the Senate must ratify [a treaty] by a two-thirds vote.”  But as the Senate’s own web page makes clear: “The Senate does not ratify treaties. Instead, the Senate takes up a resolution of ratification, by which the Senate formally gives its advice and consent, empowering the president to proceed with ratification” (my emphasis).  Or, as this outstanding  2001 CRS Report on the Senate’s role in treaty-making states (at 117):  “It is the President who negotiates and ultimately ratifies treaties for the United States, but only if the Senate in the intervening period gives its advice and consent.”  Ratification is the formal act of the nation’s consent to be bound by the treaty on the international plane.  Senate consent is a necessary but not sufficient condition of treaty ratification for the United States.  As the CRS Report notes: “When a treaty to which the Senate has advised and consented … is returned to the President,” he may “simply decide not to ratify the treaty.”

So, Republicans — in telling a foreign country not to trust the Unites States — are wrong on the law (not to mention condescending — eleven members of the Iranian government’s cabinet were educated in the United States and are probably smarter than your typical GOP senator).  But more importantly, they are actively impeding the negotiation — clearly and exclusively in the executive branch’s domain — and attempting to subvert the foreign policy of the country they allegedly represent.

Oregon Bakers Fined As Much As $150,000 For Discrimination

Aaron and Melissa Klein, co-owners of Sweet Cakes by Melissa, refused to sell a wedding cake to Rachel Cryer and Laurel Bowman (now Bowman-Cryer) because they were a same-sex couple in January 2013. The Kleins became martyrs for conservative opponents of LGBT equality, claiming that they were being persecuted for their beliefs — both because of the complaint the couple filed with the state and the public backlash they faced. The backlash led them to close their storefront and operate their bakery out of their home.

The Kleins have insisted on social media that they do not hate gay people, putting this Rick Warren quote on Facebook:

“Our culture has accepted 2 huge lies. The first is that if you disagree with someone’s lifestyle, you must fear or hate them. Second is that to love someone means that you must agree with everything they believe or do. Both are nonsense. You don’t have to compromise convictions to be compassionate.”

They insist that they were simply living in accordance with their religious beliefs when they rejected a lesbian couple’s request for a wedding cake. Furthermore, they said they believed their decision to deny service to the two women was protected by their right to practice their religion as they see fit.

I get tired of these arguments, and all you have to do is replace “gay” with “inter-racial” and the whole thing crumbles.  Just as the owner of a lunch counter cannot discriminate on the basis of race, a business owner should not be able to discriminate on the basis of sexual orientation.  And religion should not provide a safe shelter for bigotry.

The Oregon Bureau of Labor and Industries (BOLI) announced yesterday that the owners of Sweet Cakes by Melissa violated a state nondiscrimination ordinance when they refused to sell a wedding cake to the lesbian couple. They may have to pay the couple as much as $150,000, though damages will be determined at a future hearing.

The legalese in this decision is important.  The main argument the Kleins put forth was that compliance with the state nondiscrimination law constituted “compelled speech.” BOLI rejected that argument saying, “[The Kleins] were not asked to issue a marriage license, perform a wedding ceremony, or in any way legally recognize Complainants’ planned same-sex wedding.” The Kleins were “under no compulsion to publicly ‘speak the government’s message’ in an affirmative manner that demonstrates their support for same-sex marriage.” The event would be private, not public, and regardless of whether making a wedding cake may be expressive, “the operation of Respondents’ bakery, including Respondents’ decision not to offer services to a protected class of persons, is not.”

In other words, even if baking a cake IS “speech”, you still cannot discriminate.

The Kleins next legal argument was also grounded in the First Amendment: they claimed that being forced to produce a wedding cake was a violation of their religious beliefs. In analyzing law that might support such a claim, BOLI arrived at an important distinction based on the Kleins’ own testimony: “Their refusal to make a wedding cake… was not a religious practice, but conduct motivated by their religious beliefs.” This is important because, unlike the conduct link for sexual orientation, other jurisprudence has established that religious freedom does not relieve individuals of complying with a a law that is “neutral” in applicability irrespective of religion, like nondiscrimination protections.

In other words, if making cakes was an actual religious practice, then they might have a religious exemption.

Here’s the decision:

 

World’s Dumbest Lawyer(TM) Joins Twitchy At Being Outraged At Something They Didn’t Understand In The First Place

In other words, dog bites man.

University of Baltimore law professor Garrett Epps wrote a piece in the Atlantic entitled “Imperfect Union: The Constitution Didn’t Foresee Divided Government” that discussed the likely confrontations between the President and the newly-Republican Congress:

What’s coming will be painful, frustrating, and dangerous—and it will illustrate a constitutional malfunction unforeseen in 1787. The country will survive, and it’s possible it can even make progress—but at tremendous cost in polarization and missed opportunity. The country is like a car driving with the handbrake on: Any movement forward will be accompanied by smoke and internal damage.

So we might profitably put a six-month moratorium on paeans to the wisdom of the Framers. The problem of divided government is a bug, not a feature, and the Constitution itself provides no guidance on how to work around it.

This sent the right wing into “gotcha” conniptions and Twitter giggles.  It even prompted the World’s Dumbest Lawyer to write Professor Epps’ employer, the University of Baltimore Law School, in order to demonstrate that the founders indeed envisioned separation of powers (as shown by the Constitution as well as The Federation Papers).

Of course, educated people and people NOT on the lookout for gotchas could read Epps article, and could tell that Epps was talking about DIVIDED GOVERNMENT… which is not the same as “separation of powers”.  And the reason you can tell he is talking about “divided government” is because — in the very quote that sent conservatives off the rails — he uses the phrase “divided government”.

To people who actually know what they are talking about, “divided government” does not mean the separate branches of government and the various powers they hold.  Go ahead and google “divided government”.  I’ll wait.  You’ll find it explained thusly:

In the United States, divided government describes a situation in which one party controls the White House and another party controls one or both houses of the United States Congress, thus leading to Congressional gridlock. Divided government is suggested by some to be an undesirable product of the separation of powers in the United States’ political system. Earlier in the 20th century, divided government was rare, but since the 1970s, it has become increasingly common, mainly in part because of the Watergate scandal, which popularized the idea that a divided government is good for the country

Emphasis mine.  Clearly “divided government” does not mean “separation of powers” or the above sentence would not make sense.  It has to do with POLITICAL PARTIES, a concept that does not appear in the Constitution.  Nor are political parties spoken of favorably in the Federalist Papers.

So, Epps’ point is not incorrect.  It is accurate.  At worst, it can be criticized for being obviously true.  The framers — who did not anticipate or promote political parties — set up a government which has separation of powers, but did not anticipate a divided government and Congressional gridlike.  That is simply a fact.

Twitchy and The World’s Dumbest Lawyer have once again exposed their own ignorance and blamed it on someone else.

It must suck to be so wrong so often.  And right now, Yale Law School must be so embarrassed.

Fourth Circuit Overturns Virginia Same-Sex Marriage Ban

The religious right continues losing their reactionary culture war, as a federal appeals court strikes down Virginia’s ban on marriage equality.

And this ruling will also affect conservative bans on same-sex marriage in West Virginia, North Carolina and South Carolina, so it’s a significant defeat for the forces of atavism.

“We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws,” the divided three-judge panel of the 4th U.S. Circuit in Richmond concluded.

[…]

The 4th Circuit opinion also will affect marriage laws in other states within its jurisdiction, including West Virginia, North Carolina and South Carolina. Only Maryland has legalized same-sex marriage.

Here in North Carolina, there are three cases which challenge the same-sex marriage ban.  In one of them, one of the plainitiffs is medically ill, and the ACLU has asked for expedited relief.  I expect the judge in that case will, in light of the Fourth Circuit decision, strike down NC's ban as well.

That might not mean gay marriage is coming to North Carolina.  More likely, it will be put "n hold" pending an inevitable Supreme Court decision.