I am Cassandra, Part 1: SCOTUS textualists read the text of the CRA!

As I’m sure that y’all have heard, SCOTUS has decided that the Civil Rights Act of 1964’s Title VII bans employment discrimination against folks on the basis of sexual orientation and being trans. The opinion was even written by a conservative justice. I’ll probably cover the decision in more detail later (though it’s been very hard to write lately), but right now I just want to call out how utterly ineffective I have been in pushing for change.

I had no effect on this decision at all.

And yet, the heart of this decision is simply taking a traditional legal test seriously. This is the “but for” test, and is used in liability cases of many kinds, as well as occasionally in other ares of law. The “but for” test is used this way:

Would the alleged harm have come to pass if all circumstances were the same but for one fact.

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Victory Against the Dakota Access Pipeline

Indianz.com has an important story up about a victory against DAPL.

NOTE: The TL;DR is that the expedited process for issuing permits for the project was illegal, DAPL might be shut down (at least temporarily), and the uncertainty created by the illegitimate permits might further delay fully connecting DAPL to the Albertan tar sands oil projects.

The Army Corps of Engineers (ACoE) has a long history of neglecting not only treaty rights but also duties imposed by the National Environmental Policy Act (NEPA). That act requires certain steps to be taken BEFORE concrete actions like issuing permits can be legally undertaken. There are good reasons – have been good reasons – to believe that they did not meet the legal prerequisites for issuing the DAPL permits and today a federal judge agreed.

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A Dastardly Homosexual Conspiracy in Switzerland

Al Jazeera (among others) is reporting on a Swiss referendum to amend laws banning racist or religious public discrimination or “incitement to hatred” to include incitement to hatred on the basis of sexual orientation. Switzerland is considerably backwards on issues of sexual orientation and struggles with how to address gender in public policy just as significantly (though in different ways) as, say, Italy and other neighbors. There is no general anti-discrimination law in Switzerland and the relationship between Canton governments and the federal government is not as independent as one will find in Canada’s provinces or the states of the USA (thought don’t ask me for more than that general characterization – Swiss law is far beyond me), which means that few cantons have strong anti-discrimination protections. Geneva enacted some, but only as recently as 2017.

This doesn’t mean that Swiss culture is more hostile to QTIs than other places in Europe. Rather, they have a constitutional structure that more generally protects against legal discrimination and laws against private sector discrimination are less used than in nearby countries and less reliant on specifying in statute particular classifications as off-limits in decisions regarding employment, housing, public accommodations, etc. General legal principles rather than specific protections have been thought to be enough.

Laws providing a very strong protection of freedom of association, for example, have been held out by legal scholars in Switzerland as sufficient to ban discrimination based on queer relationships. Yet these provisions are rarely actually used, and at least some reporting says that they are never or almost never used as the basis for a suit seeking remedy for discrimination based on sexual orientation. The provisions against public discrimination are intended to remedy this recent situation in which rights of association protect queer people in theory but not practice.

Switzerland, it seems, has been coasting on inertia. Actual queer fucking has been continuously legal in Switzerland since the 1940s while statutes making queer sex a felony in the US weren’t overturned until Lawrence v. Texas in 2003. Other locations in Europe still criminalize queer sex. Distinctions like this allowed Switzerland to believe it was ahead of its peers and not in need of legislation addressing sexual orientation (much) in public policy. But as other jurisdictions in other nations have surpassed Switzerland over the past two decades in terms of guarantees of personal freedom in the areas of sex and relationships, the Swiss have come to believe that action is necessary.

Believe it or not, that does not include passing legislation permitting equal access to state-sanctioned marriage, but as of today it includes the amendment I referenced in the first paragraph. It has long been illegal in Switzerland to engage in “incitement to public hatred” on the basis of race of religion. These laws are designed to prevent what is sometimes labeled “stochastic terrorism” – non-violent persons encouraging others to perform violence without entering into any specific conspiracy. If one speaks sufficiently hatefully about a group to enough people over time, sooner or later words will reach someone who finds in them a justification to commit violence. This statistical certainty makes hate speech literally dangerous. In the United States it is still protected constitutionally, but the USA is an outlier on this issue and most democracies in Europe have some form of law against incitement to hatred, as do Canada, New Zealand, and South Africa.

For these countries, a decision has already been made about the extent to which speech is protected by the constitution, but even if the constitution does not protect such hate speech, it is still not against the law unless a specific statute bans it. That’s what this most recent referendum did. It took the existing statute and simply expanded the banned bases for incitement to hatred, adding sexual orientation to race and religion. In other words, the types of speech banned are not expanded, but the targets protected are expanded.

As in other laws of this type, straight people are protected equally against being singled out for being heterosexual as queer folk are for being queer. Nonetheless, since straight people have no idea what it’s like to be targeted for being straight, they tend to undervalue this protection and overvalue the freedom to denigrate all the big scary queerbos in their midst. Fortunately many straight people are overcoming this tendency and the referendum passed with 60.5% approval. But this referendum was only necessary because of that tendency.

In 2018 this amendment was originally passed by the Swiss parliament. The largest political party in Switzerland, the SVP, is a center-right to not-quite-far-right party. With the number of parties in a parliamentary system this doesn’t mean that they have a majority (far from it), but their plurality status gives them a large amount of power. Unable to block passage of the bill entirely, they instead forced it into limbo until it could be ratified by popular referendum. That happened today.

As you may imagine, the SVP were not pleased: SVP MP Eric Bertinat gave the quote of the day to Agence France-Presse when he said that the amendment to the incitement to hatred law was “part of an LGBT plan to slowly move towards same-sex marriage and IVF” for gay couples. (In countries where health care is a right and straight couples’ health benefits include assisted reproduction, many right wingers protest queer folk accessing the same benefits since they are not infertile, just perverted.) Other right-wingers were also unhappy, though not as unintentionally funny. Marc Frueh, and MP from a minor party of Christian conservatives known as the EDU stuck with characterizing it as a pro-censorship amendment.

The anti-discrimination provisions in the law are still somewhat weaker (if I understand them correctly) than similar provisions in US law. For instance, it may not protect against employment, housing, and lending discrimination unless the discrimination happens in a public way that tends to humiliate or denigrate the target. In this way it is similar to certain provisions of Canadian provincial Human Rights Codes that provide remedy for denial of human dignity that operates somewhat differently to statutory provisions that simply ban discrimination on specific bases. They also do not protect against discrimination or incitement to hatred on the basis of sex, gender, gender identity, or gender expression.

Still, this is a pretty big step for Switzerland. Who knows. Maybe Bertinat is correct and somewhere, someone is secretly plotting to someday legalize queer marriages in Switzerland. Quelle horreur.

 

Minnesota Gets It Right

Here’s a good use of state tax dollars for ya:

Minnesota just allocated nearly a million dollars in incentives for people to transform their lawns into bee-friendly wildflowers, clover and native grasses.

The state is asking citizens to stop spraying herbicide, stop mowing so often, and let their lawns re-wild into a more natural state.

The goal is to provide “food sources for pollinators of all kinds, but will specifically aim at saving the rusty patched bumblebee, a fat and fuzzy species on the brink of extinction

I reduced the size of the lawn when I owned my own single-detached home. I specifically replanted a good portion with wildflowers and scattered moss through a very large portion of the rest of the lawn. The moss is incredibly good in the PNW: it holds quite a lot of moisture, so the grass can’t grow very fast (and rarely goes to seed), but it also can’t dry out too much because there’s a point where the balance tips and the grass is dry enough it can steal water from the moss instead of the other way round.

Moss doesn’t work everywhere, and neither do prairie plants, but looking for the plants native to your area before human development and planting them can make your land (should you have any) more beautiful and lower-maintenance. Sure, it might mean that less area is available for soccer or picnics, but is that what you were using the yard for before? And are there no nearby parks in which to do those things? At my old house, I was one block away from a manicured city park with lots and lots of grass. There was no need to keep any at my house. (I really did so only because of local laws that at the time prohibited natural yardscapes b/c neighbors were worried about their lawns getting weeds from untended properties.

Thirty-Eight

Well, today the Virginia legislature ratified the ERA, making it the 38th state to have done so. This does not mean that the ERA will be immediately effective. There are two major problems confronting ERA proponents (including me, natch).

First, 5 states that ratified the ERA have since passed acts that purport to rescind their ratification. While this is a barrier, I don’t judge this a particularly high hurdle to clear. There simply is no mechanism in the constitution that discusses, much less actually permits, a state that has ratified an amendment to take that ratification back. The constitutional process simply demands that a state ratifies it. Once a state has done so, it has done so. Anything after that is likely (but not certainly) constitutionally irrelevant.

Of course, a right-leaning judiciary might still attempt to hang up ratification on that point, but since it’s pretty flimsy and in pretty flagrant conflict with the actual constitutional text, so-called originalists would prefer to have another hook on which to hang their argument that the ERA cannot be put into effect. As it so happens, they do. That’s the second barrier: the ERA as written is simple and includes no deadline, but passage of the ERA was accompanied by text that gave the states only a limited amount of time to ratify, after which the amendment would be presumed not ratifiable. This deadline was extended once, but not again, and according to the accompanying text (as amended) time to ratify passed in 1982.

Now, the constitution also does not specify that Congress may limit the time period during which states may consider ratification, but this argument has decidedly more sympathy than the any argument that states might be able to “take back” ratification. After all, if they can take back ratification, there is no obvious reason that they can’t take back ratification of an amendment already in effect. This could potentially reducing the amendment to support levels below the threshold needed to bring the amendment into force. At that point, what would happen? Repeal of an in-force amendment? What if a single state repeals their ratification of the 9th amendment? Since there were only 13 states at the time, and only 10 required to put the amendment into effect, rescinded ratification by one state could result in a need to ratify by 26-29 states to restore the amendment’s force. All these reasons make it unlikely that even die-hard conservatives hell bent on defeating the ERA would rely much on the rescinded ratification argument when they have any other argument to make.

So it seems likely that whether or not the ERA becomes effective on Jan 15, 2022 will be dependent on whether courts agree or disagree with the argument that Congress has the power to include accompanying text limiting the ratification window.

Of course, what seems more likely to me is that ratification by a 38th state will put new pressure on Congress to pass a new amendment textually identical to the ERA so that states can then ratify the new version, and that that new pressure will be successful within fewer than 10 years. At that point, we will have 33 relatively easy ratifications. To gain the other 5 might be easier than people think, but won’t necessarily be easy in any absolute sense. It’s arguably true that at least some of the reason why the 12 states never to ratify have not more recently changed their minds is because the question of the ERA was considered irrelevant by most. With a new window for passage and an enthusiastic base of women pushing for passage, it will likely be much harder for a state’s conservatives to effectively oppose ratification in the 10 years after a new ERA passes than in the 10 years leading up to today.

Nothing is guaranteed, and neither sex nor gender equality is yet enshrined in the US constitution, but Jan 15, 2020 should still be remembered as a day to celebrate. Reaching 38 is a very important victory.

Utah Criminal Code Chapter 9 §702-5

This is a delightful little statute. It bans “Lewdness involving a child” within the state of Utah.

I quote:

A person is guilty of lewdness involving a child if the person under circumstances not amounting to rape of a child, object rape of a child, sodomy upon a child, sexual abuse of a child, aggravated sexual abuse of a child, or an attempt to commit any of those offenses, intentionally or knowingly:
(a) does any of the following in the presence of a child who is under 14 years of age:
(i) performs an act of sexual intercourse or sodomy;
(ii) exposes his or her genitals, the female breast below the top of the areola, the buttocks, the anus, or the pubic area:
(A) in a public place; or
(B) in a private place under circumstances the person should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire of the actor or the child;

…(iii and iv omitted)

I’m going to pare this down for you a bit:

A person is guilty of lewdness involving a child if the person [does not commit or attempt to commit a more serious sexual crime, but]:

(a) does any of the following in the presence of a child who is under 14 years of age:

(ii) exposes the female breast below the top of the areola

(B) in a private place under circumstances the person should know will likely cause affront or alarm or with the intent to arouse or gratify the sexual desire of the actor or the child;

Got that? Exposing a female breast in the presence of a child, while in a private place, is a crime if anyone will “likely” feel affronted or alarmed.

Interesting little statute there. I’m sure it would never be abused by any misogynistic prosecutors in the United States. Especially not in a state as friendly as Utah, for Mormon Heaven’s sake! No, I’m sure that they would reserve it for egregious behavior like …

Tilli Buchanan, 27, … and her husband had been installing drywall in the garage and had taken off their shirts that were itchy from the fibers, she told The Salt Lake Tribune.

When her stepchildren, aged 9, 10 and 13, walked in, she “explained she considers herself a feminist and wanted to make a point that everybody should be fine with walking around their house or elsewhere with skin showing,”

Well there was that consequential condition on the actus reus that involved some sort of distress. This doesn’t sound like quite enough to …

The charges were filed after the children’s mother told that authorities she was “alarmed”

Ah. So a mom hates her ex’s new wife enough that she got her arrested on charges of “lewdness” because she was doing the exact same thing as the ex (removing clothes itchy from drywall contamination), something that anyone might do in their own home. That makes more sense. Gotta protect the kids from seeing their step-mom’s boobies. At least the punishment should be proportionate given the wisdom of the Utah legislature and its…

If convicted, Buchanan faces imprisonment [for a maximum of 364 days – cd], fines up to $2,500 and the requirement to register as a sex offender for 10 years.

DAMN. Well, at least exposing your nipple in your own house isn’t a felo…

Lewdness involving a child is a third degree felony if at the time of the violation:

… (ii) the person has previously been convicted of a violation of this section.

So children walking in on you while your top is off in your own home is a misdemeanor the first time. The second time it happens, you can be punished

 by an indeterminate prison term of up to five years, and a fine of as much as $5,000 [oh, and by the by, they make your sex offender registration permanent].

Well. I guess that is serious. They’ll probably lose their house too, with no one out of prison to work and pay the mortgage…

Though her husband was similarly clad, he was not charged with a crime.

But… but…

Fuckit. Utah, you are fucking horrible.

 

 

 

The 28th Amendment

Amendment XXVIII (Amendment 28 – Clarification of the extent of the right to bear arms):

The careful control of dangerous weapons being necessary to the security of a free people, the right to bear arms shall not be guaranteed by this constitution further than is necessary for the defense of persons, hunting game for food, and participation in well-regulated sport that does not threaten life, health or property.

 


If you have a twitter account, TWEET THIS EVERYFUCKINGWHERE, but especially to your senators, your congressional rep, and anyone who campaigns for even half a second for POTUS.

 

 

Thirdmill301 and Cis Cowardice

Normally I respond to people talking about trans lives in comment threads in those comment threads. Partially this is because I really do believe in the power of discussing and exchange of information. Yes, I can be harsh on people who, in my opinion, have commented enough times in ways that repeat errors which have been corrected in the same thread that I believe it’s reasonable to infer that they aren’t actually learning from the tactics of helpful education. At that point, I usually decide to change tactics, and one set of tactics involves going for the jugular of a bad argument. Despite the harshness with which I treat those bad arguments, I’ve historically wanted to maintain those responses in the same threads as the comments which occasioned them.

But today, I’ve decided to change tactics, because I believe that sometimes it simply isn’t enough to directly address one person in a thread while the conversation goes on around us. For that reason, I’m going to do a couple posts responding to thread comments with blog posts. And I’m going to start with a bit by Thirdmill301:

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They Are All Up In Your Constitution, Winning Your Rights

Careful reader of this blog may remember that I consider the greatest legal genius in history to be Charles Hamilton Houston. If you don’t know who he is, well, read a book because a blog post alone won’t do it. Okay, fine. I’ll give you a bit to get started.

This is the one person more responsible than any for Brown v Board of Education (Topeka, Kansas) and the success of legal efforts to end segregation everywhere in the US. This is the one person who had not merely the legal success to argue and win that case before SCOTUS (he didn’t, as he had recently died: that was his little-known protege, Thurgood Marshall), but rather the nearly incomprehensible foresight necessary to plan literally decades ahead.

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