Where Liberals Go Wrong on 'Discrimination'

Where Liberals Go Wrong on 'Discrimination'

Just Because Liberals Call Something ‘Discrimination’ Doesn’t Mean It Actually Is

The biggest problem with current sexual orientation and gender identity (SOGI) laws—including “Fairness for All,” which proposes a grand-bargain compromise between SOGI laws and religious liberty—is that they do not appropriately define what counts as discriminatory.

As I explain in a new report for The Heritage Foundation, “How to Think About Sexual Orientation and Gender Identity (SOGI) Policies and Religious Freedom,” these are the laws that are being used to shutter Catholic adoption agencies, fine evangelical bakers, and force businesses and public facilities to allow men into women’s locker rooms.

The problem is that liberals are calling anything they dislike “discrimination.” But liberals are getting it wrong. To illustrate this, consider several different cases of putative “discrimination.” The law must be nuanced enough to capture the important differences in these cases.

Invidious and Rightly Unlawful Discrimination

Racially segregated water fountains were one form of discrimination that took race into consideration—in a context where it was completely irrelevant—and then treated blacks as second-class citizens precisely because they were black. The entire point was to classify on the basis of race in order to treat blacks as socially inferior.

As a result, such actions were rightly described as invidious race-based discrimination, and—given the entrenched, widespread, state-facilitated nature of the problem—they were rightly made unlawful.

Likewise, throughout much of American history, girls and women were not afforded educational opportunities equal to those available to boys and men. This form of discrimination took sex into consideration and then treated girls and women poorly precisely because of their sex, barring them from education in certain subjects or at certain levels despite being otherwise qualified.

As with invidious racial discrimination, such treatment took a feature (in this case, sex) into consideration precisely to treat women as less than men. The law rightly deemed such actions invidious sex-based discrimination, and—again, given the entrenched, widespread, and state-facilitated nature of the problem—Title IX of the Education Amendments was enacted to ensure that girls and women received equal educational opportunities.

Appropriate and Rightly Lawful Distinctions That Are Not Classified as Discrimination

When Title IX was enacted in 1972 and its implementing regulations were promulgated in 1975, the law made clear that sex-specific housing, bathrooms, and locker rooms were not unlawful discrimination. Such policies take sex into consideration, but they do not treat women as inferior to men or men as inferior to women. They treat both sexes equally because they take sex into consideration (they “discriminate”—in the nonpejorative sense of “distinguish”—on the basis of sex) precisely in a way that matters: by appreciating the bodily sexual difference of men and women in things such as housing, bathroom, and locker room policy.

Would we really be treating men and women equally in anything but an artificial way if we forced men and women, boys and girls, to undress in front of each other?

Justice Ruth Bader Ginsburg, in her majority opinion for the Supreme Court forcing the Virginia Military Institute to become co-ed, wrote that it “would undoubtedly require alterations necessary to afford members of each sex privacy from the other sex in living arrangements.” Yet we certainly would be treating people unequally if access to intimate facilities were based on factors wholly unrelated to privacy, such as race.

As a result, policymakers did not consider sex-specific intimate facilities as discriminatory in the first place, and laws explicitly reflected that commonsense understanding while rightly declaring racially segregated facilities to be unlawful.

The lesson here is that not all distinctions in fact should be deemed unlawful discrimination.

Not Discriminatory at All

If sex-specific intimate facilities are an example of lawful, legitimate policies that take sex into consideration, pro-life medical practices are examples of policies that are legitimate and lawful because they do not take sex into consideration at all.

That only women can get pregnant has no bearing whatsoever on the judgment of the conscientious doctor or nurse who refuses to kill the unborn. The insistence of LGBT activists that men actually can become pregnant highlights the point: Pro-life medical personnel refuse to do abortions on pregnant women and “pregnant men” (i.e. women who identify as men).

>>>For more on this, see Ryan T. Anderson’s new book from Oxford University Press, “Debating Religious Liberty and Discrimination”

Thus, we can identify three different types of cases:

• Cases of invidious discrimination, in which an irrelevant factor is taken into consideration in order to treat people poorly based on that factor, as with racially segregated water fountains;
• Cases of distinctions without unlawful discrimination, in which a factor is taken into consideration precisely because it is relevant to the underlying policy and people are not treated poorly, as with sex-specific intimate facilities; and
• Cases with neither distinctions nor discrimination, in which a particular factor simply does not enter into consideration, as with pro-life doctors.

Any proposed policy intended to address the documented needs of people who identify as LGBT must take these categories into account without conflation.

SOGI Discrimination: Real and Imagined

Consider a florist who refused to serve all customers who identify as LGBT simply because they identified as LGBT. That would be a case of invidious discrimination because the mere knowledge that they identify as LGBT should have no impact whatsoever on the act of the florist selling flowers, because there is no rational connection between the two.

Now consider Baronelle Stutzman, the 71-year-old grandmother who served one particular gay customer for nearly a decade but declined to do the wedding flowers for his same-sex wedding ceremony.

Baronelle Stutzman lost her case and is appealing to the Supreme Court. (Photo: Alliance Defending Freedom)
Baronelle Stutzman lost her case and is appealing to the Supreme Court. (Photo: Alliance Defending Freedom)
The customer’s sexual orientation did not play any role in Stutzman’s decision. Her belief that marriage is a union of sexually complementary spouses does not spring from any convictions about people who identify as LGBT. When she says she can do wedding flowers only for true weddings, she makes no distinctions based on sexual orientation at all.

This is seen most clearly in the case of Catholic Charities adoption agencies. They decline to place the children entrusted to their care with same-sex couples not because of their sexual orientation, but because of the conviction that children deserve both a mother and a father.

That belief—that men and women are not interchangeable, mothers and fathers are not replaceable, the two best dads in the world cannot make up for a missing mom, and the two best moms in the world cannot make up for a missing dad—has absolutely nothing to do with sexual orientation.

Catholic Charities does not say that people who identify as LGBT cannot love or care for children; it does not take sexual orientation into consideration at all. Its preference for placing children with mothers and fathers is not an instance of discrimination based on sexual orientation—and the law should not say otherwise.

Purported gender identity discrimination presents similar problems. The Washington Post recently reported on a woman who was suing a Catholic hospital for declining to perform a sex reassignment procedure on her that entailed removing her healthy uterus. In that report, the Post captures the conflation of real and imaginary discrimination.

“What the rule says is if you provide a particular service to anybody, you can’t refuse to provide it to anyone,” said Sarah Warbelow, the legal director for the Human Rights Campaign. That means a transgender person who shows up at an emergency room with something as basic as a twisted ankle cannot be denied care, as sometimes happens, Warbelow said. That also means if a doctor provides breast reconstruction surgery or hormone therapy, those services cannot be denied to transgender patients seeking them for gender dysphoria, she said.

The two examples given, however, differ in significant ways. A hospital that refuses to treat the twisted ankles of people who identify as transgender simply because they identify as transgender would be engaging in invidious discrimination, but a hospital that declines to remove the perfectly healthy uterus of a woman who identifies as a man is not engaging in “gender identity” discrimination.

The gender identity of the patient plays no role in the decision-making process: Just as pro-life physicians do not kill unborn babies, regardless of the sex or gender identity of the pregnant person, doctors do not remove healthy uteruses from any patients, regardless of how they identify themselves.

As for the Human Rights Campaign spokesperson’s claim that emergency rooms “sometimes” refuse to treat the twisted ankles of transgender patients, there is no evidence—including on their own website—that it or anything similar in fact happens. Furthermore, insofar as this “sometimes happens,” it seems reasonable to think that the media would focus so much attention on it that the hospital would reverse course within hours. It therefore seems highly unlikely that this alleged problem merits a governmental response.

Need for Policy Shapes the Nature of Policy Response, Definitions, and Protections

My new Heritage report argues that any justified government policy must not penalize valid forms of action and interaction or burden the rights of conscience, religion, and speech. We can see this principle in action.

Because there was such widespread, entrenched systemic and institutional racism throughout American society in the 1960s, for example, and because social and market forces were not sufficient to remedy the problem, it was appropriate for government to respond. That response was properly tailored to meet this need. It defined discrimination to include racially segregated accommodations, places of employment, and housing providers while providing thin religious liberty protections.

Because the justification for antidiscrimination laws based on race was so strong and the need was so great, the law was appropriately broad with limited exemptions.

By contrast, consider laws that address discrimination based on sex. Because the nature of sex and the history of sexism did not represent an exact parallel to racism, the law did not treat them in entirely the same ways. Discrimination was legally defined so as not to include sex-specific intimate facilities, and much broader—and in some cases total—religious liberty exemptions were included. And to this day, sex is not a protected class for federal antidiscrimination law as applied to public accommodations.

In sum, because the justification for laws against sex-based discrimination was weaker than the justification for laws against race-based discrimination, the legal response was more modest: It covered less terrain, defined discrimination more narrowly, and provided greater protection for religious liberty.

Any proposed policies intended to meet the needs of people who identify as LGBT would need to be crafted in a similar manner. Without greater evidence of the justification for specific policy responses—greater documentation of what the needs truly are—it is hard to be specific. In general, however, the need clearly seems weaker than the need for policies designed to deal with discrimination on the basis of race and sex.

A policy response would therefore need to cover less ground, target discrimination more narrowly, define discrimination accurately, and avoid undermining the rights of conscience, religion, and speech. Alas, laws proposed by liberals today do not do this.

What did Mann win?

Popehat explains:

The DC Circuit adopted the standard that the vast majority of states use for their anti-SLAPP statutes — the plaintiff only has to produce admissible evidence which, if accepted, is legally sufficient to win. That's the same standard courts apply to motions for summary judgment — motions in which the defendant argues that there's not enough evidence for the case to go to a jury. Practically that means that if the complaint is bogus as a matter of law (for instance, if it targets speech that is clearly just hyperbole or opinion), or if the plaintiff has no evidence to support it, the defendant wins — but if the complaint is legally plausible, and the plaintiff has any evidence to support it, the plaintiff wins.

....

Steyn's and CEI's Articles: The DC Court of Appeal held that the trial court was correct to deny the anti-SLAPP motion by Steyn, CEI, and Simberg. Mann won, and Steyn, CEI, and Simberg lost, that part of the appeal. The result is notable and, for several reasons, concerning.

There are two key elements to this part of the decision: the distinction between opinion and fact, and the question of what constitutes proof of malice.

Once again, only false statements of provable fact may be defamatory. Opinions, arguments, and hyperbole may not unless they imply false provable facts. "Ken is a jerk" can't be defamatory because it's not objectively provable; "I hacked Ken's email and he's a crook" might conceivably be defamatory because it could imply false facts.

Here, both Steyn's and Simberg's articles were replete with hyperbole, rather strongly signalling opinion. Moreover, they both disclosed the facts that they were relying upon — the hockey stick that another scientist [edited to correct: not Mann] called a "trick" to "hide a decline." I think — like others — that the better and more reasonable interpretation of these writings is that Steyn and Simberg were offering overt argument and opinion based on disclosed facts. You might disagree with the fairness of their conclusions — for instance, you might accept Mann's explanation of what the other scientist [edited: not Mann]meant by "trick," or believe that it's unreasonable not to agree with academic institutions that exonerated Mann — but conclusions based on data aren't defamatory even if they are unfair or unreasonable. That's classic protected speech.

The DC Court of Appeals, however, focused on a lack of overt signals like "in my view" or "in my opinion" or "I think" — silly formalism, in my view, but a pointer to practitioners of how one can manage libel risks. The court also focused on the fact that calling something "fraudulent" or "data manipulation" could possibly be interpreted as a statement of provable fact. The problem with this argument, I think, is that it is very selective about what context it considers. Steyn and Simberg are overtly operating in the context of a scientific culture in which someone has talked about a "trick" in presenting data in support of an argument to "hide" an inconvenient fact. That is the underlying fact framing their opinion. The fact is undisputed even if the interpretation of it is not. Their use of vivid and argumentative language helps establish that they are drawing conclusions, not asserting new (and unspecified) facts.

It's important to understand what the Court of Appeals found, though. It didn't find that Steyn's and Simberg's articles stated facts, let alone false ones. It simply found that Mann presented evidence that, if believed, could allow a jury to conclude that the articles stated facts rather than opinions. The court found he created an arguable issue, in other words. I don't agree, but that's much different than deciding that the articles were factual rather than opinion.

Next, the Court of Appeals found that Mann had presented evidence that was legally sufficient to show that Steyn and Simberg acted with malice. Malice, in this context, doesn't mean ill will — it means with knowledge that statements were false or recklessness about whether or not they were false. Mann has to meet that standard because he's a public figure — only false statements about him made with malice are defamatory. The court found that Mann had presented evidence of widely circulated studies and findings exonerating him, and that the existence of those studies could be accepted by a jury as adequate proof of knowledge that the factual allegations were false.

I think the Court's decision here was, at a minimum, badly framed. The entire point of Steyn's and Simberg's posts was quis custodiet ipsos custodes — that the scientific and academic community's policing of alleged wrongdoing by its own is incredible and unreliable when it is defending ideologically cherished consensus.

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies | Popehat

How To Spot And Critique Censorship Tropes In The Media's Coverage Of Free Speech Controversies | Popehat

Fortunately, this ain't rocket science. Americans can train themselves to detect and question the media's pro-censorship tropes. I've collected some of the most pervasive and familiar ones. This post is designed as a resource, and I'll add to it as people point out more examples and more tropes.

When you see the media using these tropes, ask yourself: what normative message is the author advancing, and does it have any basis in law?


Trope One: "Hate Speech"

Example: "hate speech is excluded from protection. dont [sic] just say you love the constitution . . . read it." CNN Anchor Chris Cuomo, on Twitter, February 6, 2015.
Example: "I do not know if American courts would find much of what Charlie Hebdo does to be hate speech unprotected by the Constitution, but I know—hope?—that most Americans would." Edward Schumacher-Matos, NPR, February 6, 2015.

In the United States, "hate speech" is an argumentative rhetorical category, not a legal one.

"Hate speech" means many things to many Americans. There's no widely accepted legal definition in American law. More importantly, as Professor Eugene Volokh explains conclusively, there is no "hate speech" exception to the First Amendment. Americans are free to impose social consequences on ugly speech, but the government is not free to impose official sanctions upon it. In other words, even if the phrase "hate speech" had a recognized legal definition, it would still not carry legal consequences.

This is not a close or ambiguous question of law.

When the media frames a free speech story as an inquiry into whether something is "hate speech," it's asking a question of morals or taste poorly disguised as a question of law. It's the equivalent of asking "is this speech rude?"

Trope Two: "Like shouting fire in a crowded theater"

Example: " There is no freedom to shout 'fire' in a crowded theater." Prof. Thane Rosenbaum, Daily Beast, January 30, 2014.

Nearly 100 years ago Justice Oliver Wendell Holmes, Jr., voting to uphold the Espionage Act conviction of a man who wrote and circulated anti-draft pamphlets during World War I, said"[t]he most stringent protection of free speech would not protect a man in falsely shouting fire in a theatre and causing a panic."

That flourish — now usually shortened to "shout fire in a crowded theater" — is the media's go-to trope to support the proposition that some speech is illegal. But it's empty rhetoric. I previously explained at length how Holmes said it in the context of the Supreme Court's strong wartime pro-censorship push and subsequently retreated from it. That history illustrates its insidious nature. Holmes cynically used the phrase as a rhetorical device to justify jailing people for anti-war advocacy, an activity that is now (and was soon thereafter) unquestionably protected by the First Amendment. It's an old tool, but still useful, versatile enough to be invoked as a generic argument for censorship whenever one is needed. But it's null-content, because all it says is some speech can be banned — which, as we'll see in the next trope, is not controversial. The phrase does not advance a discussion of which speech falls outside of the protection of the First Amendment.

Trope Three: "Not all speech is protected"

Example: "Not all speech is protected by the First Amendment." Ann Coulter, Townhall, August 2, 2001.

Example: “Not all speech is protected if there is hate speech and it is intended to ridicule another religion,” he said. “I don’t believe it is a free speech matter.” Archbishop Paul Coakley, quoted on FoxNews.com, August 8, 2014.

The media routinely prefaces free speech discussions with the bland and inarguable statement "not all speech is protected." That's true. In fact it's not in serious dispute. The problem is that the media routinely invokes this trope to imply that the proposed First Amendment exception it is about to discuss is plausible or constitutional because other exceptions already exist. Not so. Though First Amendment analysis can be complicated at the margins, the core exceptions to First Amendment protection are well-known and well-established. The Supreme Court — in the course of rejecting a proposed new exception — articulated them recently:

"From 1791 to the present," however, the First Amendment has "permitted restrictions upon the content of speech in a few limited areas," and has never "include[d] a freedom to disregard these traditional limitations." Id., at 382-383. These "historic and traditional categories long familiar to the bar," Simon & Schuster, Inc. v. Members of N. Y. State Crime Victims Bd., 502 U. S. 105, 127 (1991) (Kennedy, J., concurring in judgment)–including obscenity, Roth v. United States, 354 U. S. 476, 483 (1957), defamation, Beauharnais v. Illinois, 343 U. S. 250, 254-255 (1952), fraud, Virginia Bd. of Pharmacy v. Virginia Citizens Consumer Council, Inc., 425 U. S. 748, 771 (1976), incitement, Brandenburg v. Ohio, 395 U. S. 444, 447-449 (1969) (per curiam), and speech integral to criminal conduct, Giboney v. Empire Storage & Ice Co., 336 U. S. 490, 498 (1949)–are "well-defined and narrowly limited classes of speech, the prevention and punishment of which have never been thought to raise any Constitutional problem." Chaplinsky v. New Hampshire, 315 U. S. 568, 571-572 (1942).

The observation "not all speech is protected" adds nothing to a discussion because it offers no mechanism for determining whether the speech at issue falls into a traditional exception or not.

To see what I mean, consider the utility of equivalent rhetoric. You've been bitten by an unfamiliar snake, and you'd like to know if you need treatment.

You: Doctor, was the snake that bit me poisonous?
Doctor: Actually snakes are usually venomous. Though some are both venomous and poisonous.
You: Great. What about this snake here? I caught it in a bag for you to look at.
Doctor: There are both harmless and venomous snakes in North America.
You: Yes, thank you. Which is this?
Doctor: That snake has rings!
You: Yes. Yes it does.
Doctor: Some venomous snakes have rings.
You: Is there anyone else on duty I could see?

Trope Four: "Line between free speech and [questioned expression]"

Example: "Texas Shooting Sheds Light On Murkiness Between Free, Hate Speech." NPR.com Headline, May 5, 2015.
Example: "Texas attack refocuses attention on fine line between free speech and hate speech." LA Times Headline, May 4, 2015.

Journalists and pundits talking about free speech disputes love to frame their stories as being about "the line between free speech and X," where X is the controversial expression in question.

This trope can be invoked accurately when there is a legally meaningful line separating protected speech and the type of speech called out. For instance, "the line between free speech and true threats" isn't misleading because "true threats" are an actual category of unprotected speech and there's a line between them and protected speech.

Too often, though, the "line" is invoked to imply a nonexistent legal distinction. The "line between free speech and hate speech" rhetoric from the examples above is misleading and meaningless because, as noted in Trope One, "hate speech" is not a legal thing. "The line between free speech and bullying" — another recently popular line — is another example. It implies, falsely, that there is a legally meaningful category of speech called "bullying" that lies outside of First Amendment protections. In fact there isn't — there are traditional exceptions to free speech (true threats, for instance) and some of that conduct could sometimes be described as "bullying," but that's not the same thing.

"The line between free speech and X" is often the rhetorical equivalent to "the line between vegetables and rutabagas": the author doesn't have a coherent argument that rutabagas aren't vegetables, but doesn't like rutabagas and thinks you shouldn't either.

Trope Five: "Balancing free speech and [social value]"

Example: "The incident raised heated questions about race relations — and how to balance free speech with protection from discrimination and harassment." Washington Post, March 3, 2015.

The media's love of "balancing" stories is a variation on its love of "line between" stories, only more misleading.

"Balancing," when used as a colloquial description of how courts decide whether speech is protected, is almost always wrong. American courts don't weigh the value of speech against the harm it does. When speech falls into an established exception to the First Amendment, as discussed above, no balancing is necessary; it can be restricted. When it doesn't, balancing of its "value" against other interests is almost always prohibited. As the Supreme Court recently said in rejecting the government's request to create new categories of unprotected speech through balancing:

The First Amendment's guarantee of free speech does not extend only to categories of speech that survive an ad hoc balancing of relative social costs and benefits. The First Amendment itself reflects a judgment by the American people that the benefits of its restrictions on the Government outweigh the costs. Our Constitution forecloses any attempt to revise that judgment simply on the basis that some speech is not worth it. The Constitution is not a document "prescribing limits, and declaring that those limits may be passed at pleasure." Marbury v. Madison, 1 Cranch 137, 178 (1803).

Courts occasionally engage in something that faintly resembles "balancing" when they apply different levels of scrutiny to speech restrictions. For instance, the Supreme Court said that Congress could prohibit the burning of draft cards because the government had a substantial interest in the draft system and the law was narrowly addressed to that legitimate interest, and aimed only at the non-communicative element of the conduct (destroying the card) and not the communicative aspect (doing so to protest the draft). But that analysis doesn't purport to assign a value to the speech. It considers only whether the government has a sufficiently compelling interest in its goal. Moreover, there's very good reason to doubt that the Supreme Court would ever approve a speech restriction that is content-based — that is, premised on dislike of the speech — no matter how strong the government's interest. The Court has repeatedly rejected calls to do just that, and a focus on the content of disfavored speech (when it's not within an established exception) is almost certainly fatal to the proposed restriction.

Trope Six: "This isn't free speech, it's [category]"

Example: "It’s not free speech. It’s bullying and intimidation. It’s a horror show." Mary Elizabeth Williams, Salon, February 17, 2015.

The First Amendment is, in a way, categorical: there are well-defined categories of speech that are not protected, as I discussed above. But media commentators often abuse categorical thinking by inventing new categories of speech outside the First Amendment. "This isn't free speech, it's hate speech." "This isn't free speech, it's discrimination."

The trope can be used correctly — "this isn't free speech, it's an unprotected death threat." But usually it's not. Usually it's invoked as shorthand for "I don't want to address First Amendment analysis so I'm just going to say in conclusory fashion that it doesn't apply at all."

Our response to the trope should always be the same — does this supported not-speech category exist, and is it one that's actually outside the First Amendment?

Trope Seven: "Fighting words"

Example: "There are two exceptions from the constitutional right to free speech – defamation and the doctrine of “fighting words” or “incitement,” said John Szmer, an associate professor of political science and a constitutional law expert at the University of North Carolina at Charlotte." McClatchy.com, May 4, 2015.

No discussion of controversial speech is complete without some idiot suggesting that it may be "fighting words."

In 1942 the Supreme Court held that the government could prohibit "fighting words" — "those which by their very utterance inflict injury or tend to incite an immediate breach of the peace." The Supreme Court has been retreating from that pronouncement ever since. If the "fighting words" doctrine survives — that's in serious doubt — it's limited to face-to-face insults likely to provoke a reasonable person to violent retaliation. The Supreme Court has rejected every opportunity to use the doctrine to support restrictions on speech. The "which by their very utterance inflict injury" language the Supreme Court dropped in passing finds no support whatsoever in modern law — the only remaining focus is on whether the speech will provoke immediate face-to-face violence.

That's almost always irrelevant to the sort of speech at issue when the media invokes the trope.

Trope Eight: "[Professor] explained . . . ."

Example: "The exhibit of cartoons in Texas might have crossed the line, [Professor] Szmer said."

The media loves to quote a professor to support a viewpoint. This is intellectually neutral: it can be good or bad, depending on the honesty and qualifications of the professor selected.

Quoting professors about law is particularly risky, if your aim is an accurate and informative discussion of free speech law. If you call a physics professor and ask them what will happen if you drop your pencil, and why, he or she will say "it will fall, because of gravity." There is a relatively low chance that the professor will tell you "well, maybe nothing will happen" because he or she harbors the belief that the current gravitic regime is unfair and otherwise problematical. But when you call a professor of law, or political science, or journalism, and ask them a question about whether some controversial speech is protected by the First Amendment, there is an unacceptably high probability that you will get a quote expressing what the professor thinks the law ought to be. Sometimes the professor will flag a statement as an argumentative one, sometimes not. Moreover, some professors . . . . how can one put this delicately? Some law professors' views on how a court is likely to rule on an issue are untainted by exposure to actual courts.

Many professors will give you a sober, accurate and well-informed assessment of how a court would likely approach a given free speech situation. The trick is separating those professors from ones who are out of their field or mere advocates.

Trope Nine: "This speech may be protected for now, but the law is always changing."

Example: "'The way we interpret the constitution is always changing. The supreme court can change the rules, and does do so,' he said." The Guardian, quoting Eric Posner, May 6, 2015.

When existing American law clearly protects questioned speech, the media sometimes resorts to finding someone to say "the law can change, and maybe it should."

Yes, American law can change. Constitutional interpretation can change in breathtaking ways inside a generation.

But the United States Supreme Court has been more consistently protective of free speech than of any other right, especially in the face of media sensibilities about "harmful" words. Fred Phelps and the Westboro Baptist Church are universally reviled and held up as an example of the worst sort of speech; the Court found their speech protected by a margin of 8-1. The Court struck down an overbroad law prohibiting "crush videos" of animals being killed by the same margin. There is no sign of any movement towards the proposition that speech may be restricted because it is hurtful or disfavored — the sort of speech that provokes this banal media observation that law changes.

Pointers to more tropes are always welcomed, as are particularly good examples.

What American law professors forgot and what Trump knew - Chicago Tribune

What American law professors forgot and what Trump knew - Chicago Tribune

It was lonely being a Donald Trump supporter in the legal academy. Of my thousands of colleagues teaching law in this country, I don't think more than a few dozen believed that he would have made a better president than Hillary Clinton, and not more than a handful of us were willing to go public with our support.

It has always been a risk to be a Republican teaching in a law school, where many teachers see a thin line between support for the GOP and bigotry or insanity. And yet, enough Americans liked what they saw in Trump to give him a smashing Electoral College victory.

How did it come about that law professors grew so out of touch with much of America?

To a hammer everything looks like a nail, and to a law professor everything is a problem in jurisprudence. Accordingly, it's my guess that the legal academy, over the past 80 years or so, began to wander too far from common sense, or, to be more precise, to depart from the essentials of the rule of law. Law professors forgot the most important notion that undergirds our legal system — the basic principle endorsed by the framers, that ours is a government of laws, not men (or women).

What this is supposed to mean is that we adhere to the original understanding of our Constitution and laws, and that if legal change is to be accomplished it is done not by judges or presidents, but by legislators or the American people, through constitutional amendments.

Since Franklin Roosevelt lambasted the U.S. Supreme Court for its "horse and buggy" definition of interstate commerce, however, the court, in recoil, has felt an obligation to rewrite the Constitution to meet the needs of the times, as the Supreme Court under Justice Earl Warren did with abandon, and as subsequent courts have done, most notably with Roe v. Wade and Obergefell v. Hodges.

The court has advanced the cause of human rights, undeniably, but at a cost of self-government by the American people.

This has been justified in the legal field through theories arguing that the Warren Court was engaged in teasing out "principles" of justice inherent in the Constitution, and, more boldly, by theorists who maintained that, at bottom, all law is politics.

A rear-guard action in the academy was maintained by those who lamented the Warren Court's failure to adhere to our tradition that the Constitution should be neutrally applied, without a thumb on the scale to implement policies favored by the justices. That view was best expressed by the late justice and former Chicago law professor Antonin Scalia, who ridiculed the idea of a "living Constitution" and maintained that the only valid jurisprudence was one that assigned law-making not to the judges but to legislatures. It is no coincidence that President-elect Trump singled out Scalia as his favorite justice. And it is probably no coincidence that President Barack Obama's executive orders stretched the law and Constitution to new lengths, often beyond the breaking points. He went to Harvard Law School in an era when critical legal studies, which challenge and overturn accepted legal norms and standards and practices, were at their zenith.

It seems to be well understood that some conservatives (I'm one) adhered to Trump early on because of the view that he would appoint a conservative like Scalia to the Supreme Court. But I can't help but wonder whether the many millions who voted for President-elect Trump also understood what the legal academy had all but forgotten, that what was at stake in the past election was nothing less than the rule of law and self-government itself.

FBI Director Confirms that Hillary Lied, and Mishandled Classified Material

FBI Director Confirms that Hillary Lied, and Mishandled Classified Material

On Sunday, FBI Director James Comey sought to put a cap on the bottle he opened on October 28 when he announced that the FBI was once again investigating Hillary Clinton’s emails, based on a device they had discovered containing what turned out to be approximately 650,000 emails. The device was the shared computer of sexting pervert and former congressman Anthony Weiner and his long suffering wife, Huma Abedin, top aide to Hillary Clinton and a woman with deep ties to the Muslim Brotherhood.

Comey caused an uproar in the campaign, on both sides of the aisle. Democrats and their allies in the media were outraged that Comey would drop this bomb into the campaign with 11 days until the election, and not explain the urgency or the substance of his findings. Many Republicans, and their allies, who were outraged by Comey’s conclusions back in July—namely that Hillary Clinton was guilty of serious violations of the law, but that he didn’t believe that she had any criminal intent, nor that “any reasonable prosecutor” would attempt to prosecute the case against her—were saying that maybe Comey was going to implicate Hillary in serious criminal activity after all. He wouldn’t have reopened this matter, they believed, if he didn’t have something new and serious that he had seen.

Now, the roles are reversed again, with Democrats claiming that Comey’s latest statement represents a complete vindication for Hillary, while Republicans are questioning the timing and point of the whole exercise. Did the FBI, even with their high-tech reading devices, actually go through 650,000 emails in a week, and conclude that there is no there there? And why is the State Department only able to process 500 emails per month? The wheels of justice seem to turn at whatever pace the Democrats need them to.

I have a bit of a different take. In the November 6 letter to Congress, Comey stated:

“I write to supplement my October 28, 2016 letter that notified you the FBI would be taking additional investigative steps with respect to former Secretary of State Clinton’s use of a personal email server. Since my letter, the FBI investigative team has been working around the clock to process and review a large volume of emails from a device obtained in connection with an unrelated criminal investigation. During that process, we reviewed all of the communications that were to or from Hillary Clinton while she was Secretary of State.

“Based on our review, we have not changed our conclusions that we expressed in July with respect to Secretary Clinton.”

While Comey did, in fact, argue back in July that he was not recommending an indictment or prosecution of Hillary, he also drew other “conclusions that we expressed in July with respect to Secretary Clinton.” He had concluded that she lied when she said that she hadn’t sent or received classified materials on her private, unsecured server. She lied when she said that nothing that she sent or received was marked classified. She lied when she said that she only used one device, when in fact she used at least 13 devices, at least two of which were destroyed by hammers. And she lied when she said that she had turned over all of her work-related emails. No, in fact Comey said that there were “thousands” of work-related emails they found that she had not turned over. You can watch here to see Comey draw all of these “conclusions” back in July.

This is what the Clinton campaign is wearing as a badge of complete exoneration, and a closing of the books on her so-called email scandal, which is actually a national security scandal. As we have often pointed out, others have gone to jail, been fined, lost their security clearances and were run out of public life for far less egregious examples of mishandling classified material.

Andy McCarthy, the former U.S. Attorney who successfully prosecuted the Blind Sheikh for his involvement in the first World Trade Center bombing, argued back in July that Comey basically rewrote the law. Comey “conceded that former Secretary Clinton was ‘extremely careless’ and strongly suggested that her recklessness very likely led to communications (her own and those she corresponded with) being intercepted by foreign intelligence services.”

McCarthy added that “Comey recommended against prosecution of the law violations he clearly found on the ground that there was no intent to harm the United States.”

“In essence,” wrote McCarthy, “in order to give Mrs. Clinton a pass, the FBI rewrote the statute, inserting an intent element that Congress did not require. The added intent element, moreover, makes no sense: The point of having a statute that criminalizes gross negligence is to underscore that government officials have a special obligation to safeguard national defense secrets; when they fail to carry out that obligation due to gross negligence, they are guilty of serious wrongdoing. The lack of intent to harm our country is irrelevant. People never intend the bad things that happen due to gross negligence.”

But this has been a corrupt process. The fix was in. It had to be to protect President Obama as well, who knowingly exchanged emails with Hillary on her private server. As Politico pointed out, “President Barack Obama used a pseudonym in email communications with Hillary Clinton and others, according to FBI records…” Those FBI records, released in late September, confirmed what McCarthy had earlier predicted: “As I explained in February,” wrote McCarthy, “when it emerged that the White House was refusing to disclose at least 22 communications Obama had exchanged with then-secretary Clinton over the latter’s private e-mail account, we knew that Obama had knowingly engaged in the same misconduct that was the focus of the Clinton probe: the reckless mishandling of classified information.”

It is possible that America will be electing someone as president on Tuesday who has committed serious crimes that could all be wiped away by a presidential pardon. The media’s failure to accurately cover this story could very well be the cause of a major constitutional crisis, the likes we’ve never witnessed before.

5 Legal Rights Women Have That Men Don’t | Thought Catalog

5 Legal Rights Women Have That Men Don’t | Thought Catalog

I’ve had an opportunity lately to speak to a lot of feminists about why so many young women are rejecting feminism, and one theme that has come up repeatedly is that feminism is interested in equal rights for everyone. I have yet to meet a single feminist who was not completely astonished to discover that not only do women have equal rights to men, they actually have more rights than men. Most feminists will backpedal when confronted with that reality and try to justify why they are deserving of more rights than men, but the stark fact remains that in 2014, women do indeed have more rights than men. Here are five legally enshrined rights that women have and men do not:

1. Women have the right to genital integrity

Regardless of how you personally feel about the practice of circumcision (I personally find it barbaric, cruel and completely unjustifiable), the legal fact is that infant girls are protected against any genital cutting of any kind and infant boys are not. Many feminists will argue that female genital mutilation (FGM) is a magnitude of brutality beyond male genital mutilation and while that may be true, I do not find the “it’s only a little bit brutal” argument to be very compelling. It’s like saying cutting off a toe is okay because cutting off a foot is much worse. Ultimately, the argument is immaterial to the fact that women have the legal right to be protected from having their body parts sliced off. Men do not.

2. Women have the right to vote without agreeing to die

In the US, citizens are free to exercise their constitutionally guaranteed right to democratically choose their own leaders through the process of casting a ballot in an election once they reach the age of 18. Women achieve this right by the simple act of surviving 18 years. Men may not actualize their basic rights as a citizen without first signing a Selective Service card, in which they agree that at the discretion of the democratically elected government, they will take up arms and die to defend their liberty and way of life. The draft. Men may vote if, and only if, they agree they will face death if required. Women have no such obligation, but they do get to vote for the governments that can potentially send men to meet death. Again, regardless of how you feel about the draft, women have the right to vote without agreeing to be drafted. Men don’t.

3. Women have the right to choose parenthood

I’ve written about this before, but it is worth repeating. Women have three options to absolve themselves of all legal, moral, financial and social responsibility for children they did not intend and do not want. Women may abort the child before it is born, they may surrender the child for adoption without notifying or identifying the father or they may surrender the infant under Safe Haven laws and walk away from all responsibility and obligation. Women cannot be forced or coerced into parenthood, but they are legally allowed to force men into financing their reproductive choices. In many states, men can be forced into financial responsibility for children whom they did not biologically father. As long as a particular man is identified as the father, he will be held accountable. Paternity fraud is legal. In no state is legal paternal surrender permitted without the express agreement of the mother.

Again, regardless of whether you agree or disagree with legal paternal surrender, the fact remains that women have the legal right to choose parenthood. Men do not.

4. Women have the right to be assumed caregivers for children

When parental relationships irretrievably break down, current custody laws assume one primary caregiver (almost always a woman) and one tertiary caregiver (almost always a man). In order to win equal or shared custody, the tertiary caregiver must litigate to prove they are worthy of equal parenting, a proposition that is not only very difficult to “prove”, it is also very expensive. The legal presumption of shared parenting upon divorce – that children have a legal right to an equal relationship with both their mother and their father following relationship breakdown – is strongly resisted by the National Organization for Women (NOW) and other feminist organizations who know that women will almost always win custody of children under the default laws. In actual fact, men who can afford to purse legal remedies and challenge primary custody stand a good chance of winning, because women do not have the market cornered on loving or caring for children. So while the law does not specifically indicate that custody will be awarded to women, the defacto result of primary/tertiary caregiver custody law is that women have a legal right to be assumed caregivers for children. Men do not.

5. Women have the right to call unwanted, coerced sex rape

The original FBI definition of rape specifically identified women as the victims, excluding the possibility of male rape victims. When the FBI updated that, it did so in way that includes a small minority of male rape victims but excluded most male rape victims by retaining the “penetration” clause. Penetration of any orifice must occur for rape to have happened. The FBI does collect another set of statistics though, under the category of “other sexual assault” – it’s the awkwardly named “made to penetrate” category, which includes men who were coerced, tricked or bullied into penetrative sex with women they would otherwise not have had sex with. The National Intimate Partner and Sexual Violence Survey similarly considers the two types of assault separately, despite the fact that occurrences are virtually identical. 1.27M women report rape (p.18) and 1.26M men report “made to penetrate” (p.19). By collecting the information under separate categories, following the legal definitions, women have the right to have their rapes called “rape”. Men do not.

Why does any of this matter? Feminism is under attack in the popular media for failing to address real problems that have real consequences for real people. Despite insisting that feminism cares for everyone, and wants equality for everyone, the facts suggest the opposite is true. Women have more rights than men and those discrepancies need to be addressed. But more importantly, gender is just one thing that defines who a person is, what advantages and disadvantages they might have, what opportunities are in front of them, or foreclosed. Class, wealth, race, ability, sexual orientation, ethnicity, religion – all of these things have a profound influence on individuals, and the only way to understand how a specific person can be helped or hindered is to see that person as a human being, first and foremost. Perhaps the reason I don’t need feminism is because what I really need is humanism. And maybe you do, too.

5 Legal Rights Women Have That Men Don’t | Thought Catalog

5 Legal Rights Women Have That Men Don’t | Thought Catalog

I’ve had an opportunity lately to speak to a lot of feminists about why so many young women are rejecting feminism, and one theme that has come up repeatedly is that feminism is interested in equal rights for everyone. I have yet to meet a single feminist who was not completely astonished to discover that not only do women have equal rights to men, they actually have more rights than men. Most feminists will backpedal when confronted with that reality and try to justify why they are deserving of more rights than men, but the stark fact remains that in 2014, women do indeed have more rights than men. Here are five legally enshrined rights that women have and men do not:

1. Women have the right to genital integrity

Regardless of how you personally feel about the practice of circumcision (I personally find it barbaric, cruel and completely unjustifiable), the legal fact is that infant girls are protected against any genital cutting of any kind and infant boys are not. Many feminists will argue that female genital mutilation (FGM) is a magnitude of brutality beyond male genital mutilation and while that may be true, I do not find the “it’s only a little bit brutal” argument to be very compelling. It’s like saying cutting off a toe is okay because cutting off a foot is much worse. Ultimately, the argument is immaterial to the fact that women have the legal right to be protected from having their body parts sliced off. Men do not.

2. Women have the right to vote without agreeing to die

In the US, citizens are free to exercise their constitutionally guaranteed right to democratically choose their own leaders through the process of casting a ballot in an election once they reach the age of 18. Women achieve this right by the simple act of surviving 18 years. Men may not actualize their basic rights as a citizen without first signing a Selective Service card, in which they agree that at the discretion of the democratically elected government, they will take up arms and die to defend their liberty and way of life. The draft. Men may vote if, and only if, they agree they will face death if required. Women have no such obligation, but they do get to vote for the governments that can potentially send men to meet death. Again, regardless of how you feel about the draft, women have the right to vote without agreeing to be drafted. Men don’t.

3. Women have the right to choose parenthood

I’ve written about this before, but it is worth repeating. Women have three options to absolve themselves of all legal, moral, financial and social responsibility for children they did not intend and do not want. Women may abort the child before it is born, they may surrender the child for adoption without notifying or identifying the father or they may surrender the infant under Safe Haven laws and walk away from all responsibility and obligation. Women cannot be forced or coerced into parenthood, but they are legally allowed to force men into financing their reproductive choices. In many states, men can be forced into financial responsibility for children whom they did not biologically father. As long as a particular man is identified as the father, he will be held accountable. Paternity fraud is legal. In no state is legal paternal surrender permitted without the express agreement of the mother.

Again, regardless of whether you agree or disagree with legal paternal surrender, the fact remains that women have the legal right to choose parenthood. Men do not.

4. Women have the right to be assumed caregivers for children

When parental relationships irretrievably break down, current custody laws assume one primary caregiver (almost always a woman) and one tertiary caregiver (almost always a man). In order to win equal or shared custody, the tertiary caregiver must litigate to prove they are worthy of equal parenting, a proposition that is not only very difficult to “prove”, it is also very expensive. The legal presumption of shared parenting upon divorce – that children have a legal right to an equal relationship with both their mother and their father following relationship breakdown – is strongly resisted by the National Organization for Women (NOW) and other feminist organizations who know that women will almost always win custody of children under the default laws. In actual fact, men who can afford to purse legal remedies and challenge primary custody stand a good chance of winning, because women do not have the market cornered on loving or caring for children. So while the law does not specifically indicate that custody will be awarded to women, the defacto result of primary/tertiary caregiver custody law is that women have a legal right to be assumed caregivers for children. Men do not.

5. Women have the right to call unwanted, coerced sex rape

The original FBI definition of rape specifically identified women as the victims, excluding the possibility of male rape victims. When the FBI updated that, it did so in way that includes a small minority of male rape victims but excluded most male rape victims by retaining the “penetration” clause. Penetration of any orifice must occur for rape to have happened. The FBI does collect another set of statistics though, under the category of “other sexual assault” – it’s the awkwardly named “made to penetrate” category, which includes men who were coerced, tricked or bullied into penetrative sex with women they would otherwise not have had sex with. The National Intimate Partner and Sexual Violence Survey similarly considers the two types of assault separately, despite the fact that occurrences are virtually identical. 1.27M women report rape (p.18) and 1.26M men report “made to penetrate” (p.19). By collecting the information under separate categories, following the legal definitions, women have the right to have their rapes called “rape”. Men do not.

Why does any of this matter? Feminism is under attack in the popular media for failing to address real problems that have real consequences for real people. Despite insisting that feminism cares for everyone, and wants equality for everyone, the facts suggest the opposite is true. Women have more rights than men and those discrepancies need to be addressed. But more importantly, gender is just one thing that defines who a person is, what advantages and disadvantages they might have, what opportunities are in front of them, or foreclosed. Class, wealth, race, ability, sexual orientation, ethnicity, religion – all of these things have a profound influence on individuals, and the only way to understand how a specific person can be helped or hindered is to see that person as a human being, first and foremost. Perhaps the reason I don’t need feminism is because what I really need is humanism. And maybe you do, too.

5 Legal Rights Women Have That Men Don’t | Thought Catalog

5 Legal Rights Women Have That Men Don’t | Thought Catalog

I’ve had an opportunity lately to speak to a lot of feminists about why so many young women are rejecting feminism, and one theme that has come up repeatedly is that feminism is interested in equal rights for everyone. I have yet to meet a single feminist who was not completely astonished to discover that not only do women have equal rights to men, they actually have more rights than men. Most feminists will backpedal when confronted with that reality and try to justify why they are deserving of more rights than men, but the stark fact remains that in 2014, women do indeed have more rights than men. Here are five legally enshrined rights that women have and men do not:

1. Women have the right to genital integrity

Regardless of how you personally feel about the practice of circumcision (I personally find it barbaric, cruel and completely unjustifiable), the legal fact is that infant girls are protected against any genital cutting of any kind and infant boys are not. Many feminists will argue that female genital mutilation (FGM) is a magnitude of brutality beyond male genital mutilation and while that may be true, I do not find the “it’s only a little bit brutal” argument to be very compelling. It’s like saying cutting off a toe is okay because cutting off a foot is much worse. Ultimately, the argument is immaterial to the fact that women have the legal right to be protected from having their body parts sliced off. Men do not.

2. Women have the right to vote without agreeing to die

In the US, citizens are free to exercise their constitutionally guaranteed right to democratically choose their own leaders through the process of casting a ballot in an election once they reach the age of 18. Women achieve this right by the simple act of surviving 18 years. Men may not actualize their basic rights as a citizen without first signing a Selective Service card, in which they agree that at the discretion of the democratically elected government, they will take up arms and die to defend their liberty and way of life. The draft. Men may vote if, and only if, they agree they will face death if required. Women have no such obligation, but they do get to vote for the governments that can potentially send men to meet death. Again, regardless of how you feel about the draft, women have the right to vote without agreeing to be drafted. Men don’t.

3. Women have the right to choose parenthood

I’ve written about this before, but it is worth repeating. Women have three options to absolve themselves of all legal, moral, financial and social responsibility for children they did not intend and do not want. Women may abort the child before it is born, they may surrender the child for adoption without notifying or identifying the father or they may surrender the infant under Safe Haven laws and walk away from all responsibility and obligation. Women cannot be forced or coerced into parenthood, but they are legally allowed to force men into financing their reproductive choices. In many states, men can be forced into financial responsibility for children whom they did not biologically father. As long as a particular man is identified as the father, he will be held accountable. Paternity fraud is legal. In no state is legal paternal surrender permitted without the express agreement of the mother.

Again, regardless of whether you agree or disagree with legal paternal surrender, the fact remains that women have the legal right to choose parenthood. Men do not.

4. Women have the right to be assumed caregivers for children

When parental relationships irretrievably break down, current custody laws assume one primary caregiver (almost always a woman) and one tertiary caregiver (almost always a man). In order to win equal or shared custody, the tertiary caregiver must litigate to prove they are worthy of equal parenting, a proposition that is not only very difficult to “prove”, it is also very expensive. The legal presumption of shared parenting upon divorce – that children have a legal right to an equal relationship with both their mother and their father following relationship breakdown – is strongly resisted by the National Organization for Women (NOW) and other feminist organizations who know that women will almost always win custody of children under the default laws. In actual fact, men who can afford to purse legal remedies and challenge primary custody stand a good chance of winning, because women do not have the market cornered on loving or caring for children. So while the law does not specifically indicate that custody will be awarded to women, the defacto result of primary/tertiary caregiver custody law is that women have a legal right to be assumed caregivers for children. Men do not.

5. Women have the right to call unwanted, coerced sex rape

The original FBI definition of rape specifically identified women as the victims, excluding the possibility of male rape victims. When the FBI updated that, it did so in way that includes a small minority of male rape victims but excluded most male rape victims by retaining the “penetration” clause. Penetration of any orifice must occur for rape to have happened. The FBI does collect another set of statistics though, under the category of “other sexual assault” – it’s the awkwardly named “made to penetrate” category, which includes men who were coerced, tricked or bullied into penetrative sex with women they would otherwise not have had sex with. The National Intimate Partner and Sexual Violence Survey similarly considers the two types of assault separately, despite the fact that occurrences are virtually identical. 1.27M women report rape (p.18) and 1.26M men report “made to penetrate” (p.19). By collecting the information under separate categories, following the legal definitions, women have the right to have their rapes called “rape”. Men do not.

Why does any of this matter? Feminism is under attack in the popular media for failing to address real problems that have real consequences for real people. Despite insisting that feminism cares for everyone, and wants equality for everyone, the facts suggest the opposite is true. Women have more rights than men and those discrepancies need to be addressed. But more importantly, gender is just one thing that defines who a person is, what advantages and disadvantages they might have, what opportunities are in front of them, or foreclosed. Class, wealth, race, ability, sexual orientation, ethnicity, religion – all of these things have a profound influence on individuals, and the only way to understand how a specific person can be helped or hindered is to see that person as a human being, first and foremost. Perhaps the reason I don’t need feminism is because what I really need is humanism. And maybe you do, too.

The Modern Feminist Rejection of Constitutional Government

The Modern Feminist Rejection of Constitutional Government


Many people assume that it is modern feminism, not the Constitution, that has secured freedom and political equality for women. In reality, the Constitution has always been compatible with women’s equal political rights and provides a framework for the expansion of those rights. Although contemporary feminists ostensibly pursue the goal of ensuring that men and women enjoy equal opportunity and treatment under the law, the feminist movement has largely strayed from this narrow mission in favor of a far more radical agenda. In the name of “equality,” it has sought to promote women’s full autonomy by eliminating gender distinctions and forcing gender parity. Achieving these goals would require a vast expansion of centralized government, the redefinition of freedom, and the destruction of equal protection and due process of law. This movement undermines America’s constitutional system, which limits the scope and character of the law with a view to protecting the individual rights of both men and women.

The Modern Feminist Rejection of Constitutional Government

The Modern Feminist Rejection of Constitutional Government


Many people assume that it is modern feminism, not the Constitution, that has secured freedom and political equality for women. In reality, the Constitution has always been compatible with women’s equal political rights and provides a framework for the expansion of those rights. Although contemporary feminists ostensibly pursue the goal of ensuring that men and women enjoy equal opportunity and treatment under the law, the feminist movement has largely strayed from this narrow mission in favor of a far more radical agenda. In the name of “equality,” it has sought to promote women’s full autonomy by eliminating gender distinctions and forcing gender parity. Achieving these goals would require a vast expansion of centralized government, the redefinition of freedom, and the destruction of equal protection and due process of law. This movement undermines America’s constitutional system, which limits the scope and character of the law with a view to protecting the individual rights of both men and women.

The Modern Feminist Rejection of Constitutional Government

The Modern Feminist Rejection of Constitutional Government


Many people assume that it is modern feminism, not the Constitution, that has secured freedom and political equality for women. In reality, the Constitution has always been compatible with women’s equal political rights and provides a framework for the expansion of those rights. Although contemporary feminists ostensibly pursue the goal of ensuring that men and women enjoy equal opportunity and treatment under the law, the feminist movement has largely strayed from this narrow mission in favor of a far more radical agenda. In the name of “equality,” it has sought to promote women’s full autonomy by eliminating gender distinctions and forcing gender parity. Achieving these goals would require a vast expansion of centralized government, the redefinition of freedom, and the destruction of equal protection and due process of law. This movement undermines America’s constitutional system, which limits the scope and character of the law with a view to protecting the individual rights of both men and women.

The Ten Commandments, Killing, and Murder: A Detailed Commentary

The Ten Commandments, Killing, and Murder: A Detailed Commentary

The difference between Hebrew roots R-Tz-Ch, M-O-T, and H-R-G.

Scalias Worst Opinion

Scalias Worst Opinion

Smith is the well-known “Peyote Case,” in which Scalia, for a 5-4 majority, adopted the most narrow possible reading of the Free Exercise Clause of the Constitution, concluding that the First Amendment’s ban on laws “prohibiting” the “free exercise” of religion stated a non-discrimination rule only. Government could not target specific religious practices for prohibition, and could not prohibit conduct because it is engaged in for religious reasons. But if a “neutral” and “generally applicable” rule had the effect of banning religious practice or religiously motivated conduct, that was not a law prohibiting the free exercise of religion.

Scalia’s reading of the Free Exercise Clause was not entirely implausible: There is at least a colorable argument from the text (and history) that the Free Exercise Clause states a rule about the formal content of government’s rules — that government may not adopt a law that, by its terms, prohibits religious exercise. But the better conclusion (as I argue in today’s piece, and at greater length in my academic writing on the topic) is that the Free Exercise Clause confers an affirmative substantive right to the free exercise of religion, unimpaired by government’s laws, and that this sometimes may indeed confer an immunity, specifically for religious conduct, from government’s usual rules. (What was less plausible was Scalia’s manipulation in Smith of the Court’s prior Free Exercise Clause precedents, which Scalia refashioned into rather unprincipled, incoherent exceptions to his refashioned rule.)

I argue that Smith is a positively perverse reading of the Free Exercise Clause: As the sphere of government expands, the sphere of religious liberty contracts. And it has proved unqualifiedly pernicious in its consequences.

Patterico's Pontifications » Yes, Sally Kohn, Laws Are Coercive

Patterico's Pontifications » Yes, Sally Kohn, Laws Are Coercive

Who knew?

Some readers may remember Sally Kohn from such articles as “I’m gay. And I want my kid to be gay too.” Kohn’s latest Dispensed Wisdom is an argument that, hey, government’s not forcing you to cater a gay wedding with your pizza, because you don’t have to sell pizza:

This issue of government force is a funny one. You could also argue that the government is forcing you to drive below the speed limit or wear a seatbelt in your car. But it’s not. There isn’t a police officer holding a gun to your head literally forcing you to buckle up. In fact, you are 100 percent free to speed and not wear your seatbelt—and simply deal with the consequences if you’re pulled over. Is the threat of the fine for breaking the law amount to “forcing” you to follow the law? No.
And more to the point, the government certainly isn’t forcing you to drive. If you don’t like the speed limit and seatbelt rules, and don’t want to be subject to the consequences of breaking them, then you can not drive. Whether to drive or not is your choice.
This all seems simple when we talk about driving, but somehow a fringe set of rightwing conservatives want us all to believe that hapless business owners are somehow being forced, against their will, to serve pizza to gay people. Nothing could be further from the truth. If you don’t want to serve pizza to gay people, by all means, don’t—which, by the way, is legal in Indiana and 28 other states, but even where it is illegal, you’re still free to do so and deal with the consequences of breaking the law. That, pizza shop owner, is your choice. And if you don’t want to deal with those consequences, well, no one is forcing you to be in the pizza business. You’re free to do something else.
. . . .
Don’t like following the laws that apply to businesses—including serving all customers equally? Then don’t start a business. That’s your choice.

Yes, I suppose that you could say that people don’t “have” to drive, or sell pizza. By the same logic, people don’t “have” to have sex. So I guess that means that if government wanted to pass laws mandating that any sex be heterosexual, then by Kohn’s logic, that wouldn’t be “forcing” people to have heterosexual sex.

In other words: Don’t like laws that apply to everyone having sex? Then don’t have sex. That’s your “choice.”

Right, Ms. Kohn?

But even if you could mount an argument that such laws would not “force” homosexuals to have heterosexual sex, it’s more difficult to argue that these examples do not involve government coercion. Even if you’re not literally “forced” into the behavior government demands, you are indeed being coerced into either a) performing that behavior, or b) giving up a major life function.

Kohn doesn’t seem to understand that labeling coercive action as coercive (or even as “force”) does not necessarily make that action wrong. Government “forces” those who drive to drive on the correct side of the road, and that is a proper function of government. Rather than make lame arguments that coercive action isn’t coercive, the honest approach is to recognize coercion for what it is, and defend it . . . if you can.

Kohn is busy digging deeper holes on Twitter, and exposing herself further as someone who can’t hold her own in logical debate. For example, she dismisses the example of sodomy laws I give above, which has been raised by many people, with the following “logic”:

But the cherry on top of this delicious hypocrisy sundae comes courtesy of Sean Davis, who sent me a link to Kohn’s article on the Hobby Lobby decision. You’ll never guess what she said there (OK, actually, you will). Namely, she said that conservatives were trying to “force” their religious beliefs on America.

To put it mildly, our forbearers would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us.

We’ll place to one side, for the time being, the question: “What the hell is a forbearer?” To put it mildly, our forebears would be appalled at seeing their language mangled like this. But they would also be amused, as I am, by the inconsistency of Kohn’s “laws don’t force people to do stuff!” argument, as contrasted with her Hobby Lobby position.

Ms. Kohn: you don’t like religious freedom laws that apply to Hobby Lobby and other similar closely held corporations? Don’t work for said closely held corporations. That’s your “choice.” Where’s the “force”?

In the end, the Hobby Lobby decision isn’t actually coercive because there is plenty of freedom to work for companies that are not closely held corporations run by highly religious people. By contrast, your life is severely restricted if are told you can’t drive, or engage in your chosen occupation, or even engage in sexual activity. So governmental restrictions on such activities should be absolutely necessary — because they are inherently coercive.

Ultimately, all government laws are coercive, because resistance always ends up with men coming to your door and pointing guns at you. Keeping this precept in the forefront of the minds of the citizenry is critical, because it helps focus our attention on the fact that passing laws is serious business. Laws and government should protect the public. They should not be used for much else. Certainly, laws should not be used to force you to make me a sandwich. Although I would like a sandwich.

Sally Kohn Doesn't Understand How Laws Work

Sally Kohn Doesn't Understand How Laws Work

The debate over religious freedom has officially broken the collective liberal mind. Rather than just admitting that many same-sex marriage supporters wish to use the power of government to force people of faith to violate their consciences, at least one skeptic of religious freedom has invented a new legal theory on the matter.

In a column for TPM,
liberal media personality Sally Kohn asserted that it makes no sense to say the government is forcing people of faith to violate their consciences, because government can’t force you to do anything:

You may have heard that the government is forcing businesses not to discriminate. It isn’t. If you chose to run a business, you have to follow the laws. If you don’t, that’s a choice—and you choose to suffer the consequences.

Kohn, who has a law degree from NYU, carried her theory even further, stating that members of the police force aren’t really using force to enforce the law unless they put a gun to your head:

This issue of government force is a funny one. You could also argue that the government is forcing you to drive below the speed limit or wear a seatbelt in your car. But it’s not. There isn’t a police officer holding a gun to your head literally forcing you to buckle up. In fact, you are 100 percent free to speed and not wear your seatbelt—and simply deal with the consequences if you’re pulled over. Is the threat of the fine for breaking the law amount to “forcing” you to follow the law? No.

Eric Garner, who was choked by Staten Island police and later died at the scene of his arrest for selling untaxed cigarettes, might disagree with Kohn’s description of what does and doesn’t constitute force. Unfortunately, Kohn fails to see the linguistic hints embedded in the words we use to describe how government compels legal compliance.

We use the phrase “force of law” for a reason: laws that are not backed by force aren’t laws; they’re suggestions. We use the phrase “law enforcement” for a reason. We use the phrase “police force” for a reason. If a law is not followed, it is not unusual for the government to dispatch its resources to force compliance or to levy punishment.

One gets the impression that @sallykohn hasn’t thought about government a great deal. http://t.co/xKwzTuazXK pic.twitter.com/0wbmEFm5Ok
Charles C. W. Cooke (@charlescwcooke) April 6, 2015

Governments pass laws to change behavior. Sometimes government uses carrots — engage in this particular activity we like and you’ll be rewarded with subsidies. And sometimes government uses sticks — engage in this particular activity we don’t like, and you will be punished.



Kohn appears to grasp that last part. After all, she specifically wrote that if you don’t follow a law, you might have to “suffer the consequences.” Unfortunately, she doesn’t expend any mental energy following that logic all the way through. In the absence of force, how are any consequences possible? Who has been sanctioned by government to impose this suffering?

.@sallykohn If there's no government force involved, why would I pay this hypothetical parking ticket? I'd ignore it and do whatever I want.

Sean Davis (@seanmdav) April 7, 2015

Americans don’t pay taxes out of the goodness of their hearts. They pay taxes to avoid force in the form of government fines or levies. We don’t generally drive the speed limit because it’s fun to go slow. We do it to avoid fines and arrest, an act which requires literal physical force. Martin Luther King, Jr. didn’t end up in a Birmingham jail cell because he longed for the quaint, cozy confines of prison. He ended up in that cell because police forced him into it for the crime of peacefully protesting segregation. That’s how laws — even vile ones like those of the Jim Crow era — work. Blacks didn’t choose to use different water fountains or lunch counters. They were forced to do so by police, hoses, and dogs.



A law is nothing but a threat backed up by force. This principle is not “ideological,” as Kohn tried to suggest on Twitter. It is definitional. The threat of force is what converts a mere recommendation into an actual law.



At one time, Kohn appeared to roughly understand the principle of government force. During the debate over the Obamacare contraceptive mandate, Hobby Lobby argued in court that it should not be forced by the government to pay for abortifacients for its employees. The arts and crafts supplier said that if employees wished to use abortifacients, they were free to purchase those with their own money.



This was unacceptable to Kohn, who claimed in a 2013 column for The Daily Beast that “right-wing conservatives are using the Hobby Lobby Supreme Court case on contraception to force their religious views on the nation”:

To put it mildly, our forbearers would be appalled by how right-wing conservatives are trying to use government to force their religious views on all of us.

[…]

Hobby Lobby wants to go one step further. This corporation, which already takes advantage of special government benefits by incorporating as a private business in the first place (entitling Hobby Lobby to tax benefits and liability shelters to which individuals alone are not entitled), wants to use its government-created corporate status with the help of government-run courts not just to express its religion on a poster or what have you but to force its employees to comply with the supposed religion of the corporation’s founders. This is, plain and simple, a corporation trying to contort government to impose the religious views of some onto many. This is precisely what our nation was founded against.

She asserted the existence of government force five separate times in that article. Granted, she had it completely backwards, but at least she accepted the premise. Hobby Lobby didn’t want to force anything on anybody. Its owners wanted the freedom to not pay for items they considered to be abortifacients. Hobby Lobby never argued during the case that its employees should be forever banned from using certain types of birth control. The company merely suggested that maybe people should buy some things with their own money. Perish the thought.



But to Kohn, even though a company choosing not to pay for something has nothing to do with government force, that was an example of blatant government force, a dynamic which as of yesterday she said did not even exist. Kohn apparently believes that government force doesn’t exist, that individuals can be forced to “suffer consequences” in the absence of force, that fines and imprisonment for non-compliance don’t constitute force, and that, somewhat paradoxically, an individual choosing to abstain from an activity is a perfect example of the use of government force.



As I noted previously, Sally Kohn has a law degree from NYU.



While the Indiana religious freedom debate raged on last week, I joked that many same-sex marriage supporters had moved the goalposts from “if you don’t like gay marriage, then don’t have one” to “if you don’t like having your conscience violated, then don’t have one.” I didn’t expect to be proven right in less than a week, but Sally Kohn is a charitable person who decided that I needed to be vindicated in short order.



“Don’t like following the laws that apply to businesses,” Kohn asked at the end of her column for TPM. “Then don’t start a business. That’s your choice.”



Segregationists made the exact same argument during the Jim Crow era. Thank goodness that people like Martin Luther King, Jr. ignored them, government force notwithstanding.

Why The Atlantic Is Wrong about Indiana's Religious Freedom Law | The Weekly Standard

Why The Atlantic Is Wrong about Indiana's Religious Freedom Law | The Weekly Standard

Garrett Epps writes at The Atlantic that I am wrong to say there aren't "significant" differences between the federal Religious Freedom Restoration Act (RFRA) and Indiana's RFRA.

According to Epps, who teaches creative writing and constitutional law at the University of Baltimore, there are two major differences between the Indiana law and the federal law. "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," writes Epps. "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."

"I am not sure what McCormack was thinking," writes Epps, referring to my claim that there aren't any "significant" differences between Indiana's RFRA and the federal RFRA.

If Epps could have continued reading just a bit longer, he would have discovered that I back up this claim by directing readers to the writings of University of Virgina law professor Douglas Laycock, Stanford University law professor Michael McConnell (a former federal judge on the Tenth Circuit Court of Appeals), and South Texas law professor Josh Blackman: "Indiana's RFRA makes it explicit that the law applies to persons engaged in business as well as citizens in private lawsuits, but until quite recently it had always been understood that federal RFRA covered businesses and private lawsuits. (See this post by law professor Josh Blackman for more on these matters.)"

In an email to THE WEEKLY STANDARD, University of Virginia law professor Douglas Laycock explains why the Indiana RFRA's inclusion of corporations isn't really different from federal RFRA:

On corporations: The United States has what is commonly known as “The Dictionary Act.” At the very beginning of the United States Code (Title 1, section 1) is a series of definitions. As used in this Code, unless the context otherwise requires, these words have the following meaning. The federal RFRA protects every “person,” and the Dictionary Act defines “person” to include corporations. Most states have the same sort of Dictionary Act, and the same definition. In Indiana, they put it directly into the RFRA, presumably because of the litigation culminating in Hobby Lobby. That’s not really a difference.

Epps wrote that a "lot of legal thinkers thought that idea was outlandish until last year’s decision in Burwell v. Hobby Lobby Stores, in which the Court’s five conservatives interpreted the federal RFRA to give some corporate employers a religious veto over their employees’ statutory right to contraceptive coverage." What Epps doesn't acknowledge is that only two of the nine Supreme Court justices (Sonia Sotomayor and Ruth Bader Ginsburg) dissented from the majority opinion's holding that closely-held coporations may defend themselves under federal RFRA (Kagan and Breyer didn't take a position).

As for Epps's claim that the Indiana RFRA differs from the federal RFRA in allowing people to defend themselves in private lawsuits, Josh Blackman points out that there hasn't been unanimous agreement, but "four federal courts of appeal and the Obama Justice Department have all taken the position that [federal] RFRA can be used as a defense in private suits."

So I stand by my original claim that these two features of the Indiana law cited by Epps are not significantly different from the federal law.

But does Indiana's RFRA differ from other state RFRAs?

Epps points out that the New Mexico Supreme Court did not allow a RFRA defense in a private lawsuit, and he suggests that Texas is the only state besides Indiana that allows such a defense. But Stanford's Michael McConnell has argued persuasively that other state RFRAs cover private lawsuits: "The New Mexico RFRA specifically covers action by 'a government agency.' The Arizona RFRA applies to all action by 'government' and extends to 'all state and local laws and ordinances and the implementation of those laws and ordinances.' Courts are not agencies, but they are an arm of government. 'All' law includes common law; civil suits are a means of implementing and enforcing law."

It is worth noting that the Illinois RFRA--which Barack Obama voted for as a state senator--also applies to all state and local laws: "This Act applies to all State and local (including home rule unit) laws, ordinances, policies, procedures, practices, and governmental actions and their implementation, whether statutory or otherwise and whether adopted before or after the effective date of this Act."*

So how did the confusion arise as to whether or not RFRA applied in private lawsuits in New Mexico? In his email to TWS, Douglas Laycock explains:

On private lawsuits, the federal RFRA was clearly intended to provide a possible defense (subject, as always, to the compelling interest test) when a religious organization or believer is sued, whether by a government or a private citizen. The statute specifically mentioned relief against a government, because of concerns about sovereign immunity (the rule that you usually can’t sue a state). And that created an ambiguity; did it mean only against a government?

Most states copied the federal language, and copied the ambiguity. And the New Mexico Supreme Court took advantage of that, and said no RFRA defense in a suit by a private citizen. So the Indiana bill addresses that ambiguity. If your church is feeding the homeless, and the neighbors don’t like it, it really doesn’t matter whether you get sued by the neighbors or by the city.

The New Mexico court was clearly hostile to the religious claim, rejecting every argument she made; if it had not had the ambiguity about private lawsuits, it would have just found a compelling government interest, which is what the state trial court in Washington did in the florist case. And what the Minnesota Supreme Court did thirty years ago in the only reported case of a business claiming a religious justification for discriminating against gays just because they are gay.

It's unfortunate that Epps didn't make any effort to respond to the arguments made by McConnell, Laycock, or Blackman. Perhaps a public debate is in order. Isn't that what C-SPAN is here for?

*Update (11:40a.m.): Here's Michael McConnell's analysis of the Illinois statute:

Here is the relevant part [of the statute]:

If a person's exercise of religion has been burdened in violation of this Act, that person may assert that violation as a claim or defense in a judicial proceeding and may obtain appropriate relief against a government. A party who prevails in an action to enforce this Act against a government is entitled to recover attorney's fees and costs incurred in maintaining the claim or defense.

It allows the person to assert RFRA as a claim or defense in any judicial proceeding, but seems to authorize appropriate relief only against a government. That seems to suggest RFRA can be asserted as a defense in a lawsuit brought by a private person, but not to allow suits by RFRA claimants against other private parties -- or at least, not to get relief. Perhaps a RFRA plaintiff could get a declaratory judgment that a particular act violates RFRA.

This does not make much sense. What it really might mean is that RFRA plaintiffs cannot obtain affirmative relief such as damages against private parties, but only protective relief like an injunction. In any event, the hypothetical cases people have been raising involve RFRA claimants being sued by other persons who want to compel them to take actions contrary to their religion.

The second sentence reinforces the idea that RFRA applies to lawsuits between private parties, because if it did not, there would be no need to restrict attorneys fees to those cases involving government.