Guy Fawkes: Feminism and the Putative Fourth Wave

From a comment I wrote on WHTM, lightly edited for clarity absent its original context:

So many people have announced the beginning of 4th wave feminism. It’s not here.

The only way to begin a new wave is to make new ethical claims. The “first wave” feminists were actually acting on a relatively diverse mix of ethical philosophies, but the ones who’ve come to define 1W are the Susan B. Anthonys, and those were contractarians. Their claims were primarily about how women are treated by the government and the reforms they demanded were largely designed to make women equal participants in the social contract — which in a democracy is significantly defined by voting and participation in government.

Socialist feminism ran concurrently with contractarian feminism (and a smaller movement of not-well-defined sexually libertarian feminism), but since “wave theory” didn’t exist until relatively recently, it got lumped in with the 1W contractarian feminism in the earlier period and outright ignored during the period after the recognized end of contractarian feminism in the 1920s (leaving the appearance of a gap in feminist activism, though that appearance was deceptive).

2W feminism is largely existentialist in nature, and made claims about how women were treated socially, separate from the treatment of women by the government. This is a substantially different feminism that tries to justify negative ethical judgements of sexist behaviors on entirely different ethical grounds of an essential and universal quality of “womanhood”, and focuses on relationships women have with large institutions that are not the government and with whom we have no direct social contract and which have their own freedoms against which the claims of 2W feminism must compete. The language and form of analysis is completely different from 1W feminism.

3W feminism incorporates critiques of how women themselves are a heterogenous group. Though intersectionality comes to us through honest-to-goodness (not buzzword bullshit) critical race theory written by one of the two women of color who first introduced the term critical race theory (Kimerlé Crenshaw), feminism that acknowledges divides between groups of women and the need for a feminism that creates ethical demands on individual women towards other individual women has its roots so long ago that it actually is contemporaneous with 1W. (Remember Sojourner Truth’s “Aren’t I a woman?”) It further ran concurrently with 2W (Maxine Hong Kingston, the Combahee River Collective, Pat Parker, Shulamit Firestone etc., etc.).

What transitioned between 1980 and 2000 is that the critiques of feminism’s outsiders demanding an approach that acknowledge power differences, power abuses, and systematic privileges between women, falling on racial and other highly contested lines, finally reached the center of feminist activism and gender studies courses. Part of this is that even the relatively privileged white feminists of the 80s went through the so-called “Sex Wars”. In the Sex Wars, the Lavender Purge and other intrafeminist conflicts white feminists treated each other badly. This made them reflect on who was hurting whom, and why some people with bad ideas and harmful behaviors nonetheless maintained a respected and visible place within the movement. White, mainstream feminists suddenly had a number of people who reached to women of color feminisms to make sense of their contested, divided experience.

So now we have intersectional feminisms, which are quite old but are named for the metaphor that was coined right in the middle of this crucial period. And while old in philosophical tradition, it is new to the dominant position in feminist theory. Intersectional feminisms make different ethical claims than 2W feminism, though it does not reject the causes and claims of 2W feminism wholesale (much as 1W feminism was largely accepted by 2W feminists).

But ever since 2000 I keep hearing about people saying we have a 4th wave of feminism and every time I hear this I ask, “What is the new philosophy, not just the same ethical and philosophical approach applied to a new issue (like internet-based social media), but actual new method of analysis and new ethical claim being made by this proposed 4W feminism?”

There’s never a good answer.

I’ve heard 4W feminism is feminism informed by religion for religious women. But previous generations of feminists have been religious, often quite fiercely so. The 1848 Seneca Falls convention was held in a church by church-going women for church-going women.

I’ve heard 4W feminism is feminism that addresses behavior on the internet performed by feminists who use the internet. But that’s facile. We didn’t start a new wave of feminism when the radio was invented. Or the TV. It’s the same feminism addressing a new issue, as far as I can tell.

I’ve heard 4W feminism described as feminism done by people born (or coming of age) after 3W feminism had already been established. However if a mere passage of a couple decades required a new wave designation, then the 1W name for a period spanning 7-8 decades immediately fails. And if the 1W name is taken to be coherent, than the mere passage of 20 or 25 years can’t define a novel “wave” of feminism.

I’d be delighted for a genuinely new feminist methodology to arise that grounds genuinely novel ethical claims. But if we’re simply dealing with dehumanization over twitter instead of face to face or in the newspaper, then sorry. That’s still 2W feminism, focussed on the existentialist feminist priority of the struggle to place transcendent value on the authentic human experience. Dehumanization is a 2W concept. Addressing dehumanization that occurs in 280 characters or less isn’t suddenly no longer 2W.

So what is 4W feminism? What does it claim? On what body of thought does it rest its ethical claims about what is wrong with the world and what does it prescribe we should do about those wrongs? How is the logic by which it persuades fundamentally different from what came before? How is its vision of justice incompatible with that of the 3W?

Someday there will be a 4W feminism. It will be exciting and I’ll learn a ton from it and I can’t wait to read it.

But no one has been able to show me anything yet that’s not just a previously established school of feminism writing about a new issue — which is just as novel as a movie reviewer writing about this years’ movies instead of last. It’s not a whole new wave of movie reviews. It’s just the ongoing work you would expect the same movie reviewers to keep doing, so long as all movie reviewers don’t just up and die. If one movie reviewer retires and is replaced by a younger movie reviewer with different tastes, we still do not have a whole new “wave” of film studies.

Please educate me if I’m wrong and there really is a novel form of feminism out there that I should read. Until you do though, count me skeptical. Too many have announced a 4W before now for me to trust such claims without investigation.



Gender Identity and Your Stupid Ass

I just want to note here (after a frustrating conversation elsewhere) so I can link to this later in the midst of future frustrating conversations, that gender identity is not “new”. The concept is over 100 years old and the exact phrase is at least 45 years old in the scientific literature. Earlier uses of the two word phrase “gender indenti[$]” exist in the literature, but it’s not entirely clear when this transitioned (see what I did there) from simply modifying words like “identity” and “identification” with the word “gender” to a two-word term of art with its own definition.

In any case, if you think it’s a conspiracy that you never heard of gender identity until 2019 and now suddenly it’s everywhere in your life, that’s not a conspiracy. That’s just you being ignorant before 2019. Got that, Mr. gender critical SouthPark fan?

And I know that I recommend this book fairly often, but let’s do it again. The earliest, most complete study of what gender actually is that is still considered largely accurate and entirely relevant today is the Kessler & McKenna book, Gender: An Ethnomethodological Approach.

Other investigations into the nature of gender exist that were written prior to Kessler & McKenna, but none that I know of created such a complete framework for understanding, analyzing, and further studying gender. While some bits may no longer be the most up-to-date or may even have proved inaccurate in light of later work, as a whole volume there’s nothing there that has been made irrelevant over the decades. You really can’t do better than to read G:AEA if you want to understand what gender is and has been across cultural, temporal, and individual differences.

This comment is not about the murders of MtF trans people

But I think you cissies can learn something from our experience.

The murders of MtF trans folk are very often rage-filled, with multiple stab wounds or gunshots, and these assaults preferentially target our breasts and our genitals. Our murderers wanted, as it were, to erase our transness along with our lives. They wanted to rid the world of transness. It’s a genocidal impulse made viscerally personal.

It is, of course, hideous enough that trans people have been subjected to such murders, but historically the media outlets reporting on those murders would deadname victims, would call us men in women’s clothing when our names weren’t to hand, and in other ways would work to portray us as anything but ourselves.

In short, our murderers attempted to erase us, and the media chose to complete the erasure. This wasn’t neutral reporting, news outlets were choosing to assist our murderers, even to the point of completing their genocidal work.

The United States and a number of other “Western democracies” are in crisis because would-be fascists are attacking democratic governance itself. To say, as Biden has, that such people are anti-democratic is to tell an obvious truth that the fascist-leaning themselves tell each other every day. The more outrageous and ambitious among them then pass that on to the rest of the US:

We do not trust elections

they say.

We will not tolerate the general rule of law, but we will use the law to attack our political opponents,

they say.

And in the face of these things, the media chooses to admonish the anti-fascists, the leftists, even the Democrats and other institutionalists for language that the media insists will sow distrust and spark violence.

Do not accept this narrative. Do not tolerate this narrative to be spread in your presence. The fascist and fascist leaning are working with vigor to blame their own division, hatred, and violence on anyone but themselves, and this media narrative does not report on fascist violence: it completes the fascists’ task of delegitimizing government and justifying its overthrow by any means necessary.

Apparent neutrality is not the same as actual neutrality, and the media have a particularly shameful history of adopting a guise of neutrality while forwarding the cause of violence.

When the authoritarian, anti-democratic mob assaulted the US seat of government on 6 January, 2021, it was with the intent of preventing democratic rule. When two thirds of House Republicans voted to oppose certification of the 2020 presidential election this seemingly separate event was another effort with the same goal: to end democratic rule. They may make noises of protest to dissociate themselves from the insurrection, but their own actions show them attempting to complete it.

Even now our media treat McCarthy and the other House Republicans who voted to oppose democracy as if they are correct to be offended when Biden calls out “extreme MAGA republicans” as anti-democratic and semi-fascist. Like the House Republicans on the night of 6 January, the reporters and commentators who accept and repeat this framing are not neutral: they are working to complete the fascists’ goal of delegitimizing the Democratic Party and of democracy itself.

What will you do to call the media to account? Will you be as outraged and as active as the trans people who protested the coverage of our murders? You should be.

Time is short. Choose to act.

that female athlete doesn’t look feminine enough

So one of the things I have said about my activism in the past is that my job is to work myself out of a job. I want to end domestic & sexual violence generally, fully fund services for all victims who have been (and will be) harmed before we finally do away with D/SV, and along the way to end heterosexist barriers to sex and gender variant victims ability to access relevant services. I want many other things, too, but these are at the core of my activist career, if I can be said to have had one.

I have always maintained that as the world changes, I’ll be the wrong person to talk to about next steps, because I won’t have lived my life where that next step is the biggest problem. i won’t have felt the lack of that next step so acutely. I won’t be able to speak from personal experience about how that next step would have changed my life for the better b/c we’ve already taken so many steps that it’s hard for me to imagine **only** lacking that next step.

And in many ways, I’ve been successful. Where once I was a voice in the wilderness talking about the interrelation between cissexism, heterosexism, and sexism, and how the first two play a role in how even straight, cis women are treated by our governments and our service providers, now many people are talking about these things, often with a specificity that makes them far more expert in their area than I could ever be.

But in some ways, I have been frighteningly unsuccessful. While I primarily discussed access to gender segregated services for victims of trauma, harassment, and stalking, as early as 1998 I was asked a question about trans athletes in women’s sport. Not an expert in sports (my close friends will recognize this as hilarious overstatement of the scope of my knowledge), I fell back on how I had seen cissexism and heterosexism used to exclude even straight, cis women from the services with which I was more familiar.

It is inevitable, I told the audience in approximately these words, that efforts to exclude trans people from any social pursuit will end up harming cis women. The reason is that people will look for hints that reveal a participant to be the stereotype of the deceptive transsexual who lies about her past to conceal the tenuous validity of her womanhood. This presupposes, however, that trans people can get away with passing as non-trans at least for a time. Clues revealing secret transness, then, must be subtle, and because they must be subtle, they can be found in any number of women. As a result, the desire to communicate cisgender and cissexual state of being will result in women voluntarily curtailing any social expressions deemed too masculine. Women who do exceed the boundaries of feminine behavior and presentation will initially receive the worst consequences of gender policing that nominally targets trans people, but as the outliers are pressured to conform, the boundaries of femininity collapse. As a result, freedom for all women is eventually constricted. And though trans people will suffer from gender policing, and out trans people will be the individuals who suffer more than any other individuals, because the group of cis women is so much larger than the group of trans persons, when considering all suffering in total, cis women will surely suffer more than trans people from any increased gender policing of social activities. 

Thus, I argued, even if you hate trans people, you should advocate against gender policing that targets trans persons. The investigation and accusation and prosecution process will never harm only trans people.

Well, if all y’all cis people had listened to me 24 years ago, we could have saved ourselves a world of hurt. Unfortunately some of you are bigoted Mormons who just can’t comprehend the benefits of gender liberation. Or, perhaps, they embrace sexism, so the incidental sexism of cissexist persecutions seem a feature not a bug.

From the Deseret News:

After one competitor “outclassed” the rest of the field in a girls’ state-level competition last year, the parents of the competitors who placed second and third lodged a complaint with the Utah High School Activities Association calling into question the winner’s gender.

Entirely unsurprising. Utah is one of the states that has legislated a system ostensibly banning k-12 trans students from participating in school sport save in categories open to their assigned gender at birth. What it actually does, however, is allow any random person to trigger a state investigation into the most private aspects of a child’s life. In the particular case here, the complaint was considered resolved through a thorough check of multiple records going back a decade or more, but more intrusive investigations, including medical ones, apparently are authorized by statute and cannot be said to be ruled out in the future.

And, of course, what’s compounding the horror here is that the excessive masculinity triggering the investigation wasn’t a tracheal prominence or tiny boobs. What triggered the investigation here was athletic excellence itself.

Given that the ostensible rationale for passing laws regulating trans children’s participation in school sports was to ensure that girls have a chance to experience being celebrated for their excellence, this punishment of excellence would seem to be proof that such laws not only fail to support and celebrate athletic girls, but rather punish them for their greatest successes, encouraging them to fail.

One might hope that this would cause some second thoughts, perhaps an effort to repeal this repellent and sexist regime. One would, of course, be mistaken. This is Utah, after all. Read and then weep over this most telling part of the Deseret News article:

Spatafore [David Spatafore, the UHSAA’s legislative representative] said the association has received other complaints, some that said “that female athlete doesn’t look feminine enough.”

The association took “every one of those complaints seriously. We followed up on all of those complaints with the school and the school system,” he said during an update on HB11, a ban on transgender girls from participating in female school sports, which was passed during the final hours of 2022 General Session.

And we come full circle. What I predicted 24 years ago has come to pass. Girls looking insufficiently feminine is now a complaint that the government takes “seriously”, and that the government then investigates.

I understand that women’s and girls’ athletic achievements are not sufficiently celebrated. And I understand that there’s fear that permitting trans children to participate in gender segregated sports in the manner that is most healthy for them, even if that means participating in sports originally conceived as being only for students of a different assigned sex at birth will inevitably mean a few celebrated wins for trans athletes that might otherwise have been wins for cis girls or cis women.

But giving the government the power to investigate deficient femininity, or to treat a woman or girl as an object of suspicion for her athletic excellence itself, does nothing to support cis girls or celebrate their achievements.

If you can’t oppose such laws because of their cissexism alone, oppose them for their sexist, for the power they give governments to crack down on anyone who violates gender norms even in so innocuous a manner as being a girl winning a medal in girls’ sports.




Reproductive “choice” and abortion

So we have a new commenter by the name of A Woman of No Importance who contributed to the thread (still going!) about Asshole Patriarchs. I’ll let most of that stand where it is, but one piece is something that I think should be talked about, and that’s this:

One thing that bothers a lot of moderates on both sides of the issue, which I almost never hear addressed, is this: Why do we need a million abortions a year when birth control is cheap, readily available, easy to use, and mostly works? We should be living in a world in which there are no new AIDS transmissions since it is widely known how to have sex without transmitting the virus, and the same thing applies here. People know how to have sex without making a baby. It’s entirely predictable what may happen if you have sex without precautions. So, if you don’t want a child, maybe the time to decide that is before you decide to have unprotected sex.

Now, AWoNI is in favor of abortion on demand until “sometime in the second trimester” when personhood attaches to the fetus. This isn’t someone who is reflexively opposed to abortion, and AWoNI can of course clarify, but it appears from context that she places herself among the moderates.

That’s important because assuming all that is true, it says quite a bit that a moderate is repeating right-wing extremist assumptions that sex is an entirely predictable thing and people are irresponsibly “choosing not to choose” until after they become pregnant and that, to use AWoNI’s language:

birth control is cheap, readily available, easy to use, and mostly works

Except birth control is not necessarily cheap, it is not always readily available, and “mostly works” is not the same as “it works”.

Further, this is something that is addressed literally all the time. Local schools try to make condoms available to prevent AIDS transmission and pregnancy, then local anti-contraception, anti-sex extremists scream about how a cereal-bowl full of condoms on some school nurse’s desk is killing god and inviting the Chinese Communist Party to rule over the good white folk until the end of time.

Seriously, there’s a huge panic with lots of news stories every time a school tries to increase access to contraception or even simply to good information. And when those news stories are not happening, epidemiologists from the CDC and NIH are producing regular reports about access and information, all of which are available to anyone, including AWoNI. It’s truly bizarre to me when people say that “no one is X” when we have entire industries of people whose job is to study X and put out good, peer reviewed information about it.

Is AWoNI reading that stuff? Evidently not. Could AWoNI read it? Sure could. Accessed through libraries it’s “cheap, readily available, easy to use, and mostly works”. Laws and policies are written all the time using such information and research and professional opinion.

The problem is not that there is no good, non-hyperbolic information. It’s certainly not that no one is discussing these things. The problem is that one side is actively trying to suppress that information through abstinence only education which we know from those same researchers results in more disease and more pregnancy.

And thus the irony: AWoNI is pleading for reasonable discussion, while repeating the assumptions of the people who have, as a significant goal, the squashing of reasonable discussion. Worse, the conclusion that AWoNI comes to is that

if you don’t want a child, maybe the time to decide that is before you decide to have unprotected sex.

And, again, that’s the extremist position of one side: you don’t need the “choice” of whether or not to remain pregnant, because you already had the “choice” of whether or not to become pregnant.

This dovetails with something Alito (or his ghostwriters) said in their draft Dobbs opinion: which is that there’s no such thing as involuntary pregnancy, since anyone who doesn’t wish to be a parent can simply give the child up for adoption.

There can be other posts about ways in which we don’t necessarily have the choices asserted because of x or y. Also too, VASECTOMY, MOTHERFUCKERS. But mostly what i want to say here is that it’s disingenuous to claim that we have so many other choices we don’t need this one, when the person making that claim is simultaneously working to also remove those other choices.

AWoNI has entirely typical views on abortion for a woman in the US — there should be some period where it is an option, then another period where it isn’t, and we should just have a good, productive discussion about when the dividing lines between those periods should be and get this abortion thing solved. It would be silly to blame her or look down on her or think less of her for being an entirely typical woman.

But just because AWoNI is entirely typical doesn’t mean that we can’t notice how the disingenuous communication and even outright lies of extremists end up determining the expectations of the reasonable middle. “Teach the controversy” is another example more familiar to the readers of Pharyngula, but “Sex is predictable, we already have choices at other stages of reproduction, therefore abortion isn’t necessary” is a particularly pernicious one.


I’m just going to say this once

rather than comment all over the place whenever it comes up, and I sure as fuck hope that everyone else on FreethoughtBlogs and Wonkette and Discord is listening, because this is important.

There is a thing lately, a widespread thing, a thing that has happened in comments here but also in top-level posts, which is just pissing me off. Abe Drayton is the latest to do this thing that pisses me off with his post:

The Democrats are not blameless: Some thoughts about how we got here

Now, I’m not going to lie, there is some utility in examining how institutions such as the Democratic Party help (or not) and fight (or not) for things that are supposedly Democratic Party priorities. Examining that might help you make decisions going forward about how you interact with the Democratic Party and representatives thereof.

I will also stipulate that Drayton (and many other people implicitly criticized by this here blog post of mine) are not bad people. That’s not what I’m saying. (Abe Drayton is actually a good guy who does amazing work on climate and you should support that work.)

But this is a shitty take to promote right now, and let me tell you why. Because when you say, as Drayton does, that “the Democrats” are guilty of x or y sin of action or omission, you’re talking about a category that includes both men and also maybe possibly actual fucking women. Yes, that’s right. Women are occasionally Democrats. They occasionally get elected as Democrats to work within legislative bodies or as executive officers of states or other jurisdictions.

And here’s the thing that I’m only saying once, so LISTEN THE FUCK UP:

Democratic women are the ONLY political group who has made reproductive rights a priority. They are the ONLY group that has fought with any measure of consistency or effectiveness for reproductive rights. And they are the FIRST group to be targeted for shit from the right wing, such as when a woman testified before congress about the gross disparities between insurance coverage of mens sexual health and insurance coverage of contraception for women and other necessities for women’s sexual health and was then immediately tarred as a “slut” (yes, that actual word, no euphemisms) for testifying before congress on a public policy matter. That woman is Sandra Fluke and fucking hell yes I remembered her off the top of my head; I didn’t google this shit; I didn’t go hunting for examples through laborious internet research. I just know the name of this woman who was pilloried for doing exactly what Drayton and too many others say that “Democrats” are unwilling to do.

So the question is, if I know her name, why don’t all of you? Why are so many of you willing to blame “the Democrats” without qualification? If you want to bash some broad group within the Democratic Party you can bash Democratic men if you like, but at this moment, at this particular moment, lumping Democratic women, the ONLY people who have worked to create the environment that mades overturning Roe v. Wade even an issue the media would cover so that you would notice it to comment, with people who just don’t give a shit, well, that’s victim blaming and I won’t have it.

I know that people have done this without being bad people. They just made a bad mistake, yada yada yada. I don’t fucking care because this post isn’t about you. It’s not about how you’re a bad person. It’s not about how you feel.

This post is about how Democratic women are the only people who have cared about this for more than 50 years now, and to have Democratic women lumped in with the do-nothings has to fucking stop. This post is about not forgetting that women are people. This post is about not forgetting that Democrats include women and when you’re talking about “Democrats” you’re talking about women. And this post is important because Alito and his ilk would like you to forget that when you’re talking about “Americans” or “Adults” or “teenagers” you are also talking about women.

Ignoring the existence of women as independent human beings with our own needs, our own bodies, and our own agency is what got us into this mess. Continuing that mistake isn’t going to help us get out of it.


Originalism, Dobbs v. JWH, and Oblivious, Asshole Patriarchs

So, in keeping with a line of cases most recently exemplified by Washington v. Glucksberg (a right-to-die case), Alito demanded of the respondents (Jackson Women’s Health) that they establish not merely that bans on abortion were an imposition on liberty, but that there existed constitutional and statutory resistance to such bans at the time of the drafting of the US Constitution, or, failing that, at the time of the passage of the 14th Amendment upon which pregnant persons rely to defend against state and local limitations on the right to choose for oneself whether to carry a pregnancy to term or to seek an abortion.

Alito found that there was no constitutional or statutory resistance to abortion bans established by 1789 or even by 1868. And he has some examples to back that up. Let’s not fool ourselves that there’s no such thing as a coherent argument against a federal constitutional right to abortion in the USA. I think it’s a bad argument, but it’s at least coherent. Alito isn’t Marjorie Taylor Greene or Paul Gosar or Rand Paul.

But the historically-based reasoning of Glucksberg as employed in Alito’s decision leaves out crucial context, and that is that while abortion rights were not protected before the civil war, and while the law journals of prominent law schools didn’t have published articles asserting or even requesting a defense of abortion rights until after World War II, the people tasked with protecting rights – the appellate judges and ultimately the supreme court justices of the United States – included 0 women until 1934, when one woman was appointed to 1 circuit court of appeal. It wasn’t until after World War II that there was a single federal trial judge in the district courts.

To put it bluntly: the right to abortion has been protected for longer than women have been permitted to sit on the Supreme Court of the United States. To this day we have never had a woman Chief Justice of the Supreme Court of the United States.

The reasoning of Roe has frequently been criticized as muddy, but when I read Roe, one thing that I believe those 8 men were trying to examine is, “Would abortion rights have been considered fundamental if women were considered people, considered valid authorities able to determine as well as men what was necessary for the ‘ordered liberty’ the court categorizes as essential to the democratic functioning of the United States?”

Alito would have us skip that question. Alito ignores that women were not considered persons, capable of contract and of holding property. Women were not considered capable of democratic self-determination throughout the period Alito examines. To expect the record of a country’s history during which women were not allowed the right to choose anything for themselves to reflect deep respect for a woman’s right to choose pregnancy or abortion is the grossest perversion of honest investigation.

Alito attempts (in at least one place that I remember from my first reading of this draft Dobbs decision) to distinguish the question of abortion as a question of so-called “substantive due process” and thus as a question of whether or not abortion is “intrinsic to ordered liberty”, meaning that it was a liberty with a “deeply rooted” history of legal protection within the early history of the United States and its forerunner colonies. He goes as far as to say that being pregnant is not a “sex based classification” for the purposes of the court. The import here is that he is trying – most desperately – to avoid any equal protection argument.

But the truth is that the very concept of “ordered liberty” fraught with equal protection problems for an originalist such as Alito. How can one say that the worship practices of Santeria are protected under such an analysis. For if you examine the record of protections (or lack thereof) for traditional African spiritual practices, you will find that Santeria is no more a religious classification than being pregnant is a sex-based one. Why, then, should a First Amendment analysis apply? And why should Santeria practitioners expect their practices to be protected equally with those of Catholicism’s practitioners? The history tells us that Santeria was not a “religion” in the meaning of the framers, and further that protection of Santeria cannot now be granted on the basis of the 14th amendment since there is no history of protecting its practices before the US civil war. One might attempt an equal protection argument, but Alito’s reasoning is clear: equal protection only applies when discussing two classifications within the same larger category. With Santeria determined not to be a religion to the minds of the elite landed men during the early history of White North America, there is no religion to which Santeria can be fairly compared.

In short: equal protection and “ordered liberty” cannot be fully divorced, and the plain language of the 14th Amendment prohibits much that was quite normal (and normalized) at the time. Different levels of analysis (rational basis tests, strict scrutiny, intermediate scrutiny, and even “rational basis with teeth”) seem to arise in US Jurisprudence more to excuse the court from the responsibility of applying the obvious meaning of this most modern-relevant Reconstruction amendment than they do in order to justify applying the power of the courts.

Glucksberg and its predecessors were never cases with which I was happy, but Alito’s decision in Dobbs makes clear exactly where they lead: to an artificial parsing of liberty, of due process, of privileges and immunities, as separate from the context of equal protection -a guarantee contained within the very same sentence. Dobbs is an immediate threat only to rights supported by precedent drawing upon the Due Process clause, but the longer term threat comes from this notion that due process can be fully explored, explained, and protected without reference to the entirely separate concept of equal protection. And in this Originalist separation we find that liberty is exactly what the drafters of the constitution thought it was: a privilege of white men.

I leave the final thoughts to the incomparable Pamela Means:

Yes, I know, I’m reading the opinion right now. Let’s stay calm unt—GOD FUCK ALITO GODDAMMIT

Here is one excerpt I’ve already taken. We’ll discuss a bunch of quotes and my general analysis soon.


He thinks Roe was “highly restrictive” in what it imposed.


Um, Alito? Roe was the OPPOSITE of imposing a highly restrictive regime. OP POH ZIT. Look it up.