Critical Race Theory: Videos by people much more fun than me

For our next fun & games with CRT, I’m just going to share two good videos. One is very non technical while still getting most everything right. I like it a lot. Whatever quibbles I have with it I’m not going to bother with because right now I just want you to hear something from a lay person about CRT because hopefully whatever language they use will be more accessible and less wordy than whatever I would say. (Yes, I’ve heard myself speak. Can’t really help it. Sorry/not sorry.) This first, non technical video was actually suggested in the comments so if you’ve been following along in the comments, you might have already watched it. If you haven’t though, your narrator and host goes by the handle T1J and is excellent. Get to it:

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Critical Race Theory: Questions, Answers, Feelings, and more Questions

A few weeks ago Marcus Ranum asked me via a secret backchannel communication conduit (read: email) if I wanted to tag team some CRT education here on FtB. I said sure, but then quickly hit writers’ block. (And also didn’t keep up with the email. Sorry, Marcus! It’s all me, you did nothing wrong!). The biggest reason I’ll get to at the end, but it hugely contributed to the block. My second biggest problem, though, would have been enough on its own even without the biggest: There’s so much to write about! And although I might possibly be the only blogger on this network who has actually studied this stuff in the law school classrooms where it was meant to be taught, that doesn’t mean I’m an expert. Far from it.

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Vice-Presidential Precedent

Mike Pence has ruled out invocation of the 25th Amendment. I could try to analyze his entire statement, and I’ll post it below, but right now I just want to focus on one sentence:

Invoking the 25th Amendment in such a manner would set a terrible precedent.

Let’s be clear here, Pence is claiming that it would be wrong to communicate to future presidents who aspire to tyranny and the violent overthrow of our constitutional order that such a betrayal of our nation and our constitution renders one, by definition, unfit to hold the power of the presidency.

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Trump: The Worse Fate

So I had thought a bit about self-pardons and Trump, as you might have read. I had also thought of civil cases being brought against Trump. But the last week has been so hectic I didn’t even stop to think about the tradeoffs between self-pardons and civil cases. (To be fair, the consequences for the country are more important to me than the consequences for Trump.)

But ABCNews has a piece up that directly addresses civil liability and briefly raises the fact that a pardon of any kind (issued by Trump to himself or issued by any subsequent president to Trump) is terrible for Trump’s ability to defend against a civil suit.

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We Have No Idea What The FUCK You’re On About, Texas, But Alito & Thomas Have THOUGHTS Anyway

The State of Texas’s motion for leave to file a bill of complaint is denied for lack of standing under Article III of the Constitution. Texas has not demonstrated a judicially cognizable interest in the manner in which another State conducts its elections. All other pending motions are dismissed as moot.

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Pervert Puns for Justice

On my last post reader lumipuma was surprised to hear I had conceived of my blog’s title as a pun, and wrote this comment:

This blog’s name is a pun? Now I’m slightly perplexed on why you’d want to pervert justice, in addition to just wanting pervert justice.

I had always assumed the verb/noun pun was apparent, but as it is not, Lumipuma deserves a serious answer to what is a serious question.

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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.