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 Since there were only 13 states at the time, and only 10 required to put the amendment into effect, rescinded ratification by one state could result in a need to ratify by 26-29 states to restore the amendment’s force.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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Pi = 3.2 says committee that is surely not at all drunk

Right, so. Many people here will have heard about Indiana’s attempt to legislate the value of pi. This was quite a long time ago, mind, but it’s still funny. I was just reminded of this by the delightful Pharyngula commenter Jaws. It inspired me to re-read an article from a couple years ago – before I started this blog. The story about the legislation is funnier than I remembered it.

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“Not as bad as Alabama” is hardly the same thing as “good.”

So, for amusement I will periodically go catch up with my reading on the US-centric but still wildly funny law blog, “Lowering the Bar”. Recently they have been covering the case of a Judge in Texas who, because of a rarely-remembered but still operant clause in the Texas state constitution, had the misfortune of accidentally resigning the judgeship he won in an election only three months before.

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Follow up to the Punisher cops: Logo Lawyer is Troubled

And FREEZE PEACH activists, for that matter.

One of the things that struck me the hardest in that story, at least after excluding the revelation that cops had actually placed punisher logos on their patrol cars anywhere, ever, much less huge logos covering nearly the entirely of the hoods, was the DeepThoughtsing™ of batshit dingleberry Roy Gutterman, head of the Syracuse Tully Center for Free Speech.

What did this “expert on communications law and the First Amendment” have to say that could help us appreciate precisely what had happened in Catlettsburg, Kentucky?

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When You Let George Zimmerman Get Away With Murder …

Apparently two white supremacists shot bullets, at least two shots, at two bi-racial siblings (16 yo and 12 yo) who were walking on a footpath that is property of a local church and intended and maintained for public use. The evil white supremacists arrested for those shots are James Reidnauer and Brent van Besien. They don’t claim that the fired no shots, but they do insist that they fired the shots because the children were “meth heads”.

There’s little mystery about their future defense: they can claim erratic behavior on the part of the children that scared them, then invoke stand your ground. We know that Zimmerman claimed he thought Martin might have been high. We know that Zimmerman, despite being a violent, horrible jerkface ended up being found not guilty at trial. Why should the white supremacists neglect a winning strategy?

This. This is the evil that your government encourages when it passes a stand your ground law. Every single such law should be opposed in every single jurisdiction that has passed or considers passing such a provision. Do not retreat from this fight. Go on offense. The mere existence of stand your ground laws is a threat: treat it as such and never back down.