Nel's New Day

September 14, 2017

Edie Windsor: An Icon for the Ages

A great woman died this week. Thanks to Edie Windsor, my partner and I, along with hundreds of thousands of other same-gender couples, are able to have the same benefits of legal marriage that heterosexual couples have always had. Edie is even more special to me because I had the opportunity to talk with her on a cruise to Alaska before she became internationally famous. Every time I saw her on television or spotted her in a photograph, I remembered her energy, warmth, and kindness.

As Richard Socarides wrote, Edie is the Rosa Parks of the LGBT movement of the 21st century. Her legal claim to have the same rights as any other married couple personified courage as she openly declared her long-time relationship with another woman. United States v. Windsor wasn’t even specifically about marriage; it was about the rights that marriage confirms in state and federal law regarding taxes. Yet the Supreme Court case ruling that the Defense of Marriage Act (DOMA), barring federal recognition of legally valid same-gender marriages, was unconstitutional ended in the landmark decision granting marriage equality to all same-gender couples.

Married in her early twenties, Edie divorced her husband, Saul Windsor, in less than a year after she told him that she wanted to be with a woman. In 2013, Windsor told NPR:

“I told him the truth. I said, ‘Honey, you deserve a lot more. You deserve somebody who thinks you’re the best because you are. And I need something else.’”

She took a job with IBM in 1958 after she earned a master’s in applied mathematics from New York University and became a computer programmer ad executive. Like almost all LGBT people at that time, she stayed in the closet. Earlier this year, she told Metro Weekly:

“I worked for IBM for 16 years. I lied for 16 years to people I loved. We ate lunch together, we had drinks together, we spent weekends together. Today, you don’t have to do that at IBM. You don’t do that anywhere, almost. It’s unlikely that LGBT people in the United States would have to do such a thing again.”

Edie met her love, clinical psychologist Thea Spyer (left), at the Portofino restaurant in New York’s Greenwich Village. A few years later, Thea gave Edie a diamond brooch instead of a ring for their engagement to keep their relationship secret. They loved to dance, and Edie kept dancing with Thea even after multiple sclerosis put Thea in a wheelchair (to right of Edie, above). Their remarkable relationship, which included Edie as Thea’s caregiver, is beautifully documented in the film, Edie & Thea: A Very Long Engagement. The title refers to the 44-year “engagement” before they could legally marry in 2007 after an arduous trip to Canada when Thea was a quadriplegic. Susan Muska and Greta Olafsdottir used almost five decades of slides for this poignant yet joyful view of this love story. [More views of Edie at her website.]

After Thea’s death two years later, Edie’s inheritance was taxed at $363,053 because DOMA prevented same-gender couples from the advantages of marital tax deductions for all heterosexual couples. She argued that existing law subjects people in same-sex marriages “to differential treatment compared to other similarly situated couples without justification in violation of the right of equal protection secured by the Fifth Amendment.” The taxes resulted from the decades-long appreciation on real estate that they had long owned. Edie found the taxes an affront to her marriage to Thea, and she sued to regain them.

WASHINGTON, DC – MARCH 27: Edith Windsor, 83, acknowledges her supporters as she leaves the Supreme Court March 27, 2013 in Washington, DC. The Supreme Court heard oral arguments in the case ‘Edith Schlain Windsor, in Her Capacity as Executor of the Estate of Thea Clara Spyer, Petitioner v. United States,’ which challenges the constitutionality of the Defense of Marriage Act (DOMA), the second case about same-sex marriage this week. (Photo by Chip Somodevilla/Getty Images)

Finding a lawyer was difficult because of her age and fragile health—and the fact that her sexual orientation made her appear to some lawyers as less than a compelling plaintiff. Roberta Kaplan, partner with the firm Paul, Weiss, was joined by the ACLU, and Edie’s case went before the Supreme Court on March 27, 2013 when Edie was 83. Her openness and victory were signals to all of us in the LGBT community that we might also be out to the public. Edie stayed an LGBT rights activist after the court ruling, and met her second wife, Judith Kasen (right), at a benefit. They were married a year ago.

Even a Supreme Court case two years after Edie’s victory ruling for marriage equality has not  created equal rights for LGBTQ people across the nation. The judiciary continued to struggle with questions about marital rights, adoption, and other family law in states that kept opposing same-gender marriage. The future for these rights is dimming: Dictator Donald Trump (DDT), the officials in his administration, and many other Republican leaders are virulently anti-LGBT. The Supreme Court will argue a case next month about whether businesses need to serve LGBT people, specifically if a baker has the right to not bake cakes for LGBT couples. DDT’s attorney general, Jeff Sessions, is supporting the baker and also arguing that the Civil Rights Act does not protect LGBT people from employment discrimination. Kaplan is fighting DOJ in these cases from her new firm, Kaplan & Company. DDT has attempted to ban transgender service members in the military.

I would like to think that my marriage is like squeezing all the toothpaste out of the tube: it’s impossible to put it back in. And I would like to think that I can’t be refused service in a restaurant because a so-called “law” allows people to deny service to anyone they personally reject. Nowhere in history have rights been taken away from people once granted. People can skirt school desegregation, mandated by Brown v. Board of Education, but the ruling is still the law of the land. In a fit of pique, Justice Antonin Scalia wrote in his dissent to United States v. Windsor:

“By formally declaring anyone opposed to same-sex marriage an enemy of human decency, the majority arms well every challenger to a state law restricting marriage to its traditional definition. Henceforth those challengers will lead with this Court’s declaration that there is ‘no legitimate purpose’ served by such a law, and will claim that the traditional definition [of marriage] has ‘the purpose and effect to disparage and to injure’ the ‘personhood and dignity’ of same-sex couples.”

A public memorial will be held Friday, September. 15 at 12:30 pm at Riverside Memorial Chapel in New York City. In lieu of flowers, Windsor had requested that any donations in her memory be made to the NYC LGBT Center, Callen-Lorde Community Health Center, the Hetrick-Martin Institute, and Services & Advocacy for LGBT Elders, or SAGE.

President Obama made this touching statement after Edie’s death:

“America’s long journey towards equality has been guided by countless small acts of persistence, and fueled by the stubborn willingness of quiet heroes to speak out for what’s right. Few were as small in stature as Edie Windsor – and few made as big a difference to America.

“I had the privilege to speak with Edie a few days ago, and to tell her one more time what a difference she made to this country we love. She was engaged to her partner, Thea, for forty years. After a wedding in Canada, they were married for less than two. But federal law didn’t recognize a marriage like theirs as valid – which meant that they were denied certain federal rights and benefits that other married couples enjoyed. And when Thea passed away, Edie spoke up – not for special treatment, but for equal treatment – so that other legally married same-sex couples could enjoy the same federal rights and benefits as anyone else.

“In my second inaugural address, I said that if we are truly created equal, then surely the love we commit to one another must be equal as well. And because people like Edie stood up, my administration stopped defending the so-called Defense of Marriage Act in the courts. The day that the Supreme Court issued its 2013 ruling in United States v. Windsor was a great day for Edie, and a great day for America – a victory for human decency, equality, freedom, and justice. And I called Edie that day to congratulate her.

“Two years later, to the day, we took another step forward on our journey as the Supreme Court recognized a Constitutional guarantee of marriage equality. It was a victory for families, and for the principle that all of us should be treated equally, regardless of who we are or who we love.

“I thought about Edie that day. I thought about all the millions of quiet heroes across the decades whose countless small acts of courage slowly made an entire country realize that love is love – and who, in the process, made us all more free. They deserve our gratitude. And so does Edie.

“Michelle and I offer our condolences to her wife, Judith, and to all who loved and looked up to Edie Windsor.”

Thank you, President Obama. And thank you, Edie. And thank you, all the people who fight for equal rights.

June 30, 2016

Supreme Court Does a 180 Degree Turn

Supreme Court decisions looked hopeless just six months ago. Many of us feared that women would lose abortion rights, and domestic abusers could stomp around with their guns. Affirmative action, rights of unions, and continued Affordable Care Act provisions seemed impossible. What a difference one person makes! Antonin Scalia’s death in February left only eight justices—for a long time if the GOP has its way—and the tone flipped from devastation to optimism.

The 4-4 ties kept an injunction against the DHS immigration policy but saved public union dues, especially after the court refused to hear the case again. Ties don’t establish the law of the land; they don’t establish precedent. All they do is confirm a lower court ruling. The case about religious objections from Catholic nonprofits refusing insurance coverage for employees’ birth control was returned to a lower court to be fixed. These cases, however, did not destroy a progressive movement; two of these three cases just slowed its progression.

In at least three cases, however, a majority voted in favor of progressives, both times with Justice Anthony Kennedy as the swing vote. The zombie case Fisher v. University of Texas, returning from what should have been an earlier death, upheld the school’s affirmative action plan. Race can continue to be considered to increase college admissions of disadvantaged minorities because, as Kennedy recognized, diversity’s educational benefits cannot be reduced to exact numbers. Now affirmative action can be used if race-neutral alternatives are not enough and if race plays only a small part. The only other Supreme Court case, decided in 2003, warned of a 25-year deadline. This ruling has no such warning. The vote in this case was 4-3 because Justice Elena Kagan recused herself. With Scalia’s vote, it would surely have been a tie.

Women are cheering the 5-3 ruling in Whole Woman’s Health v. Hellerstedt that struck down faux health requirements and “undue burden” for abortions in Texas. Law required clinic doctors to have “admitting privileges” in nearby hospitals and clinics to meet expensive, and unnecessary, standards for “ambulatory surgical centers” (ASC).  “Undue burden” was a standard set up for abortion restrictions in Planned Parenthood v. Casey almost 25 years ago, but the health issue set new law. Justices warned against state anti-abortion laws that claim to be for health reasons but don’t protect women’s health. Again Kennedy, for the first time supporting abortion rights for women, cast the deciding vote. If he had voted against Whole Woman’s Health, Texas could have kept closing all its clinics—now down to about 20 for 5.4 million of reproductive age.

This ruling affects laws in several states throughout the nation; almost half of them lied about health reasons in restricting abortion rights. The high court announced that it will not consider appeals from Mississippi and Wisconsin on laws similar to those in Texas, ending those unconstitutional laws. Alabama dismissed its appeal to keep its anti-abortion law. Laws are on hold in Kansas, Louisiana, Oklahoma, and Tennessee. Other states are still fighting: Michigan providers are deciding whether to challenge the state’s ASC law, and Florida’s admitting privileges law goes into effect on July 1.

In question also are other anti-abortion laws such as waiting periods and mandated useless medical procedures preceding the abortion. In Indiana, a judge blocked the state’s new anti-abortion law. Planned Parenthood will work to block anti-abortion laws in eight states.

In Voisine v. United States, two men from Maine whose guns were removed after misdemeanor convictions in domestic violence argued that “reckless” conduct wasn’t enough for them to lose their guns. The high court disagreed, voting 6-2 that “a reckless domestic assault qualifies as a ‘misdemeanor crime of domestic violence.”

A little-mentioned Supreme Court decision in the media may have a long-reaching impact. A 4-4 tie in Dollar General v. Mississippi Band of Choctaw Indians upholds rulings from the higher Tribal court, the District Court, and the 5th Circuit Court that non-Tribal businesses and individuals can legally face civil suit in Tribal courts. Dollar General had signed a contract with the tribe swearing to uphold its health and welfare, and the manager of a Dollar General on the reservation molested a 13-year-old Tribal boy.

Limited authority of Tribal governments frequently leaves little recourse for victims of sexual attacks. Native American women in the U.S. are twice as likely to suffer sexual assault as other women in the nation, and 80 percent of these assaults are by non-Tribal men who can get off free because tribal courts cannot criminally prosecute non-Tribal members not intimately known to the victims. Federal authorities tend not to pursue these rape cases.  This problem was exacerbated 38 years ago by Oliphant v. Suquamish, in which the high court ruled that Tribal courts cannot criminally prosecute non-tribal members even when the crime is committed on the reservation, making race a de jure (legal) factor in these cases.

About Oliphant, Amy Casselman, author and former case work for the Washoe Tribe of California and Nevada, said:

“Reservations became hunting grounds. This creates a lot of different types of crime—drug production, drug trafficking, human trafficking—but the people who disproportionately feel this sense of predation are Native women. Sexual assault in the US is an overwhelmingly intraracial crime, meaning that rape happens overwhelmingly between two members of the same race. Native women are the one statistical anomaly.”

In the 2013 reauthorization of the Violence against Women Act, Congress stipulated that Tribal courts only have the authority to prosecute non-Tribal sexual offenders who have pre-existing intimate relationships with the women they abused, purposely excluding from prosecution unknown predators who specifically seek out reservations to commit their crimes. The only course of action comes from civil suits.

The Supreme Court does not finalize this case that began 13 years ago; it merely allows the sexual assault case to move forward in tribal courts. But that is far more than Native Americans had before this decision. Full restoration of tribal sovereignty won’t happen until Congress passes a law or the high court overturns Oliphant.

The high court benefited women when it declined to hear a Washington state case in which pharmacists were told that their religious objections could not keep them from dispensing Plan B or other emergency contraceptives. That refusal to hear Stormans Inc. v. Wiesman allows women to get medication no matter what the person views of a pharmacy owner because the 9th Circuit Court had twice ruled in favor of women.

A Washington state judge has also ruled that public hospitals must provide abortions on side if they offer maternity services. The ruling supports the Reproductive Privacy Act, passed by voter initiative in 1991.

On the minus side, the tie allowing a Texas judge to keep his injunction against a DHS policy trying to stop some removals of immigrants appears to be a disaster for the president’s policies. According to noted judge Richard Posner, however, the decision may not make any changes. And as law professor Peter Shane wrote, the decision has nothing to do with executive decisions because it was an agency decision.

The Supreme Court dispensed two disasters in its last week. In Utah v. Strieff, a 5-3 ruling on gender lines overturned the Utah Supreme Court and ruled that an illegally detained person can be subject to lawful search and seizure if the person has a warrant for arrest. Justices Sonya Sotomayor and Ruth Bader Ginsburg argued that this decision contradicts previous Court decisions that had deemed such evidence inadmissible as “fruit of the poisonous tree.” Sotomayor said that police can verify legal status at any time, that a person’s body is always subject to invasion, and that it legitimizes racial profiling:

“The Court today holds that the discovery of a warrant for an unpaid parking ticket will forgive a police officer’s violation of your Fourth Amendment rights. Do not be soothed by the opinion’s technical language: This case allows the police to stop you on the street, demand your identification, and check it for outstanding traffic warrants—even if you are doing nothing wrong.”

The worst ruling, however, may have been the unanimous exoneration of former Virginia governor Bob McDonnell on a charge of corruption by overturning his conviction. Chief Justice John Roberts referred to Citizens United ruling that “ingratiation and access” were “not corruption.” McDonnell and his wife took expensive gifts, loans, and vacations worth more than $175,000 in return for favoring a diet-supplement business benefactor, but the court ruled that only formal and concrete government actions such as filing a lawsuit counts. Arranging meetings doesn’t, giving elected officials a blank check to trade for access. The case was returned to the lower court with the stricter standard but will most likely fail.

All except two of the progressive decisions described above would certainly have lost or had a tie if Scalia had voted. I would also ask if he might have swayed some of the justices toward his far-right position in argument if he were still sitting on the court. All in all, the outcome this year was much better than was expected when the session started last fall.

A message to people who agree with this man who said he wouldn’t vote for Hillary Clinton: “If that means Trump wins, it’s not my fault, the Democrats should have nominated a viable candidate.” Yes, it is your fault, and you will be enabling a GOP president to nominate Supreme Court justices worse than Antonin Scalia.

February 29, 2016

Supreme Court in Flux

Justice Clarence Thomas celebrated his tenth anniversary of not asking questions during oral arguments in a case about gun rights. He fired off not one but ten questions to Justice Department lawyer Ilana H. Eisenstein, who was defending a federal law that bans anyone with a misdemeanor domestic violence conviction from owning a gun. Two Maine men claimed that pleading guilty to hitting their partners shouldn’t stop them from owning guns. Thomas’ focus asked about any other area in which “a misdemeanor violation suspends a constitutional right.” The sound of Thomas’ voice produced “audible gasps” from the audience.

The case, Voisine v. United States, isn’t about the Second Amendment although Thomas tried to make it the issue. The high court agreed to review only the question of whether law can be violated by reckless conduct rather than intentional actions and refused the petition’s second question, whether the ban on possession of firearms by individuals convicted of domestic violence violated their rights under the Second Amendment. A 4-4 split would hold up the ruling from the 1st Circuit Court that rejected the men’s arguments.

Despite constitutional law, Republicans on the Senate Judiciary Committee announced that the committee will not hold hearings on any of President Obama’s nominees for the Supreme Court. In addition, Senate Judiciary Committee Chairman Chuck Grassley (R-IA) stated that will not support a vote and may not accept a White House invitation to talk about a nominee. Grassley said:

“I don’t care if I ever go down in history. I’m here to do my job.”

Grassley’s job is to fulfill his duties, honor the U.S. Constitution, and prepare for confirmation hearings. Instead, he puts his ideological interests ahead of his job—one that pays $174,000 a year. Grassley is also blocking the nomination of a top health official in revenge for the Obama administration’s not investigating Planned Parenthood for the 12th time.

Scalia’s death came almost exactly in the middle of the current court term, and several cases with serious consequences will be determined by a court split between four progressives and four conservatives—with one of those sometimes voting with the progressives. For these cases, a split will retain the lower court’s decision, and a 5-3 will probably turn progressive.

Former Virginia Gov. Robert McDonnell: Scalia’s death may put him in prison. Convicted of all 11 corruption-related charges against him, he was sentenced to two years in prison. The 4th Circuit Court affirmed his conviction, but the Supreme Court decided to hear the case. Justice Ruth Bader Ginsburg may let McDonnell out of jail because she narrowed what counted as honest services fraud in Skilling (2010). That was for a CEO, however, and not an elected official.

Friedrichs v. California Teachers Association: A wealthy organization tried to stop public sector unions from collecting mandatory dues to fund collective bargaining. The lower court ruled against them, meaning that the unions in California and 22 other states keep their right to collect dues with a 4-4 split or majority in their favor.

Evenwel v. Abbott: Texas attempted to distort the “one-person, one-vote” democracy, established in Reynolds v. Sims (1964), by claiming that districts are determined not by residents but eligible voters. The lower court upheld counting all residents. With Scalia’s vote, many states might be forced to redraw their congressional maps to give more power to white voters and less to communities with large numbers of immigrants.

Zubik v. Burwell: The relationship between “religious liberty” and the Affordable Care Act, first covered in Hobby Lobby, reappears in this case of whether signing forms opting out of providing contraceptives for employees violates a corporation’s religious beliefs. Every circuit court except the 8th upheld the president’s administration rules allowing women to obtain health plans that cover birth control through corporations’ statements that they will not provide this insurance. Justice Anthony Kennedy may vote with progressives to uphold the rules, but a split could discriminate against women in the 8th Circuit (Arkansas, Iowa, Minnesota, Missouri, Nebraska, North Dakota and South Dakota).

Whole Woman’s Health v. Hellerstedt: In this threat to Roe v. Wade, the case covers an appeal from a lower court allowing burdensome restrictions on clinics that perform abortions. A 4-4 tie would allow Texas to create these restrictions, but it would not require the rest of the country to accept them. If Justice Anthony Kennedy sides with the four progressives because the Texas law exerts an “undue burden,” the Texas decision would be overturned.

Fisher v. University of Texas: This zombie case that just won’t die also comes from Texas. The affirmative action case concerns the school’s including race in its admissions plan. This decision gets only seven votes because Justice Elena Kagan recused herself after working on the case when she was solicitor general. If Kennedy moves to the right, the court will strike down the university’s affirmative action program will be struck down. Scalia’s death eliminates the possibility of a tie vote.

There’s no doubt of how Scalia would vote. Among other egregious statements during oral arguments, he said that he was not “impressed by the fact that the University of Texas may have fewer” Black students. He added, “Maybe it ought to have fewer. I don’t think it stands to reason that it’s a good thing for the University of Texas to admit as many Blacks as possible.” Kennedy seems to lean toward affirmative action, which would allow the University of Texas to retain its current policy.

United States v. Texas: The three-judge panel of the 5th Circuit upheld a federal district ruling against President Obama’s plan to defer deportation for almost five million undocumented immigrants and refused to stay that decision. A 4-4 split would be a win for Texas, defeating the president’s program in three states—Texas, Louisiana, and Mississippi—but authorizations could proceed in the other 12 circuit courts.

Carbon emissions reductions: President Obama charged the EPA with a 32-percent reduction by 2030, but the Supreme Court temporarily blocked the plan with a 5-4 emergency order, put on hold pending a decision from the DC Circuit Court. The generally liberal court refused to grant the stay before the high court made this move and will hear the case this summer. Two of the three judges on the panel of the lower court assigned to hear the case are Democratic appointees, and the third, a George W. Bush appointee, leans toward supporting the EPA plan.

The high court could decide to rehear cases with a 4-4 split when a ninth justice is confirmed.

The impact of Scalia’s death has already been felt: Dow Chemical has decided not to appeal a $1.06 billion judgment against them and settle for $835 million. A 2013 Kansas court ruling was found liable for price-fixing through collusion with four other chemical companies in overcharging customers for products used to make urethane foam. Scalia’s death meant that a 4-4 split decision would require Dow to pay the $1.06 billion or they would be facing a more liberal court if President Obama succeeds in putting a justice on the Supreme Court. Dow pulled the case because it needed Scalia’s vote

Dow isn’t alone in wanting a conservative court. Oral arguments indicated that Tyson Foods might lose almost $5.8 million in a class action judgment, and Wal-Mart is also awaiting the results of a $187 million class action suit. Microsoft is trying to throw out a class action lawsuit from Xbox 360 owners claiming the videogame console has a design defect.

Scalia has led conservative judges in curbing class-action litigation against businesses, giving 5-4 victories to Wal-Mart (2011) and Comcast (2013). He has given billions of dollars to corporations by protecting them from liability, limiting access to justice for workers and consumers, and allowing the companies to evade regulations in climate, discrimination, and monopolies. He also gave corporations the right to spend unlimited funds in elections through Citizens United so that they can hire their own legislative members, both state and national. Now, the Supreme Court is evenly split, and progressives have appointed the majority of judges in nine of the 13 federal courts of appeal.

Scalia was a radical right-wing ideologue who used his purported “original” philosophy to support his personal beliefs. He favored unlimited corporate election spending and uncontrolled gun ownership. He opposed reproductive rights, universal health care, same-gender marriage, affirmative action, environmental protection, and rights for voting, immigrants, labor, and LGBT people. Questioned about his vote to appoint George W. Bush as president in 2000, he snapped, “Get over it.” His majority opinion allowing law enforcement to chase people without probably cause or reasonable suspicion, Scalia quoted Proverbs: “The wicked flee when no man pursueth.”

As for the GOP position that President Obama shouldn’t nominate a justice, 14 presidents, one-third of the total, appointed 21 justices during presidential election years starting with George Washington. Over half were Republicans includingAbraham Lincoln, Herbert Hoover, William Howard Taft, Dwight Eisenhower, Richard Nixon, and Ulysses S. Grant. Ronald Reagan’s nomination for justice was approved during his last year. Six presidents filled Supreme Court seats after their successors had been elected—Benjamin Harrison, Andrew Jackson, Martin Van Buren, John Tyler, and John Adams.

My comment to the whiny, lying GOP senators? “Get over it.”

February 20, 2016

‘Justice Scalia,’ an Oxymoron

Filed under: Judiciary — trp2011 @ 1:43 PM
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Stock in aluminum foil must have gone up last week with its use by the tin-hat conspiracy people after the death of Antonin Scalia last week. One example of craziness is that God killed Scalia to elect Ted Cruz for president. Rick Wiles has used numerology to prove that President Obama killed Scalia. According to Wiles, “The 13th was the 44th day of 2016. Obama is the 44th president of the United States.” Wiles concluded that Washington officials are terrified:

“Deep down they know, the regime murdered a justice … This is the way a dictatorial, fascist, police state regime takes control of a nation.”

Scalia left a 30-year trail of decisions destructive to democracy and equal justice while pretending to be an “originalist” who channeled the minds of the Founding Fathers in determining exactly what they intended in the Constitution. Using ridicule mixed with exaggerated legalese, he was declaimed as “brilliant,” but he actually followed the “textual” approach to support his personal conservative ideology.

In 2009, Scalia declared that nothing in the Constitution “forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Scalia’s last act was to use “textualism” to put Gustavo Garcia to death in Texas. Executing intellectually disabled people was also just fine with Scalia, demonstrated by his dissent in Atkins v. Virginia (2002). His rationale is that juries continue to sentence mentally disabled people to death. Scalia ignored the Constitution’s Eighth Amendment prohibiting  the imposition of “cruel and unusual punishment.”

In 2005, Scalia upheld an Indiana law barring the vote to people without photo IDs. The GOP excuse for these laws throughout the nation is supposedly the prevention of voter fraud, but in the former century Indiana had not found one case of one voter illegally impersonating another. Throughout the nation, approximately seven percent of possible voters lack the ID—most of them people of color, elderly, students, and poor whites. Getting an ID in Indiana was also onerous: the average poor person in the state lived an average of 17 miles from a county seat. Scalia said, “Seventeen miles is 17 miles for the rich and the poor.”

In 2013, Scalia was part of the voting block of five who overturned the Voting Rights Act. He attributed the law, originally passed in 1965 and clarified in 1970, 1975, 1982, 1992, and 2006, to “a phenomenon that is called perpetuation of racial entitlement…. Whenever a society adopts racial entitlements, it is very difficult to get out of them through the normal political processes…. And I am fairly confident it will be reenacted in perpetuity unless — unless a court can say it does not comport with the Constitution…..” The only “original” part of the Constitution used by Scalia is the racist views of the 18th-century Constitution; Scalia ignored later amendments enfranchising all people in the U.S. including women and people of color.

North-Carolina-12-300x232The decision to overturn the Voting Rights Act has recently exploded in North Carolina, forced to postpone its congressional district elections for almost three months because the state Supreme Court requires redrawing the gerrymandered congressional districts. (An example at the right is North Carolina’s 12th Congressional District.) Although required to redraw the lines of some districts, the GOP legislature redrew every district line to maintain a 10-3 Republican majority in the House. In its first major action since Scalia’s death, the U.S. Supreme Court declined to address the state court’s decision; Scalia would probably have led SCOTUS to hear the case.

Republicans in North Carolina freely admit that the purpose of redrawing the map was to send Republicans to the U.S. House. GOP state Rep. David Lewis said, “I think electing Republicans is better than electing Democrats.” Lewis added, “I acknowledge freely that this would be a political gerrymander which is not against the law.” A 2004 Supreme Court does permit political gerrymandering.

Another area in which Scalia led the Supreme Court was gun ownership, especially when he wrote the 5-4 majority decision in District of Columbia v Heller (2008), striking down a handgun ban. This case shifted the court’s position from protecting gun ownership connected to belonging to a state militia to maintaining that the Constitution allows people to possess as many guns as they want. Although Heller didn’t address restrictions of state and local governments, McDonald v. City of Chicago (2010) ruled that the Second Amendment applies to individual states. Recently, the high court has avoided cases regarding the Second Amendment, but the court, however, might hear an appeal to the Second Circuit Court of Appeals upholding assault weapon bans in New York and Connecticut.

Scalia holds the worst record for Supreme Court justices in recent decades on women’s issues. He wanted to overturn Roe v. Wade and always voted anti-choice. He declared that a corporation could be religious in the Hobby Lobby decision denying contraception coverage to women by “religious” corporations. He was the sole dissenter in a case allowing women to attend the Virginia Military Academy. He voted against equal pay in Lilly Ledbetter’s case of sex discrimination.

According to Scalia, “ladies” are not protected by the Constitution. The Equal Protection Clause of the 14th Amendment requires each state to provide equal protection under the law to all people within its jurisdiction. To Scalia, that clause is for racial but not gender discrimination. In a 2011 interview, Scalia said:

“Certainly the Constitution does not require discrimination on the basis of sex. The only issue is whether it prohibits it. It doesn’t. Nobody ever thought that that’s what it meant. Nobody ever voted for that. If the current society wants to outlaw discrimination by sex, hey we have things called legislatures, and they enact things called laws.”

Another decision against women came from Dukes v. Wal-Mart Stores, Inc., with a 5-4 decision reversing a district court’s decision to certify a class action lawsuit from 1.6 million female Wal-Mart employees claiming gender discrimination. The court rejected a class lawsuit with the justification that the plaintiffs lacked enough in common to constitute a class.

Scalia didn’t even want women on the Supreme Court, as Sandra Day O’Connor can testify. Although O’Connor was confirmed for the Supreme Court in 1981, a woman’s restroom wasn’t added to the justices’ robing room until 1993 when Ruth Bader Ginsburg. In general, Scalia described O’Connor’s reasoning as “irrational,” and not to “be taken seriously.” In Planned Parenthood v. Casey (1992), a case that confirmed Roe v. Wade, O’Connor voiced the “undue burden” test for abortion regulations that caused the court to oppose Scalia. He charged that this test was “unprincipled” and “will prove hopelessly unworkable in practice.” His dissent denounced O’Connor and the others in the majority for their “almost czarist arrogance.”

Blacks are better off in slower schools, according to Scalia. During oral arguments in Fisher v. University of Texas at Austin, Scalia said:

“There are those who contend that it does not benefit African Americans to get them into the University of Texas, where they do not do well, as opposed to having them go to a less-advanced school, a slower-track school where they do well.”

Scalia will have nothing more to say about this affirmative action case. Argued on December 9, 2015, the case will most likely be decided by the remaining eight justices.

Much of Scalia’s vitriol was directed toward LGBT people:

Homosexuality like murder: Scalia sympathized for Colorado residents who wanted to protect themselves from gay sex like they would from murder but lost that protection when Romer v. Evans (1993) overturned a Colorado amendment allowed anti-gay discrimination. Scalia didn’t think that animosity toward homosexuality was a valid argument because he “had thought that one could consider certain conduct reprehensible–murder, for example, or polygamy, or cruelty to animals–and could exhibit even ‘animus’ toward such conduct.”

Homosexuality like incest: After the Supreme Court struck down a Texas ban on sodomy in Lawrence v. Texas (2003), Scalia wrote, “States continue to prosecute all sorts of crimes by adults ‘in matters pertaining to sex’: prostitution, adult incest, adultery, obscenity, and child pornography.” He argued gay sex should be criminalized because of moral objections to homosexuality.

Homosexuality like flagpole sitting: Scalia’s analogy in Lawrence v. Texas: “Suppose that all the states had laws against flagpole sitting at one time [which they then overturned].Does that make flagpole sitting a fundamental right?”

Marriage equality nothing more than “fortune cookie justice”:  In response to legalized same-gender marriage in Obergefell v. Hodges (2015), Scalia mourned, “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.” He also described the majority opinion as being “couched in a style that is as pretentious as its content is egotistic.”

“Justice Scalia” should go down in history as an oxymoron, defined by connecting contradictory words. While sitting on the Supreme Court, Scalia promoted himself instead of justice.

February 18, 2016

GOP Hypocrisy Expands with Scalia’s Death

Last weekend’s events—the death of Supreme Court Justice Antonin Scalia and the GOP presidential candidate in South Carolina less than two weeks before that state’s primary—occupied the media. The Saturday night debate showed the shift in presidential debates: in the past, they focused on the people on the stage, but the crowd attending the debate is now part of the performance. Ugly heckling and booing caused Political Wire’s Taegan Goddard to comment that the show seemed to be “taking place in a Roman coliseum,” and Republican David Frum bewailed that the audience  was “joining in the bloodbath.”

Prominent conservative pundit Rich Lowry called the debate a “train wreck,” and Frum asked if the GOP looks “like a party ready to govern anything.” GOP pollster Frank Luntz, who taught the conservative side how to speak in loaded language that hid their efforts to destroy democracy in the nation, said:

“Seriously, this is insane. The GOP is destroying itself tonight, and they have no one to blame but themselves.”

Trump has set the tone for debates. Kasich tried to stop the demolition derby and Ben Carson commented on how few questions he got, but the other four tried to out-insult the others.

While the candidates battled about other issues, they declared consensus in their firm belief that President Obama lacked the right to nominate a replacement for Justice Scalia, who died February 13, 2016, the same day as the debate. An hour after the announcement of Scalia’s death, Senate Majority Leader Mitch McConnell (R-KY) said that the president, with 11 months left in his second term, should leave the nomination to the next president and promised that the Senate would not acknowledge the nominee if the president were so foolish as to making an appointment.

Of the 54 Senate Republicans, 33 opposed any appointment this year. They demand that any nominee continue Scalia’s “legacy”—one of the most conservative on the Supreme Court. Eleven senators indicated a possible willingness to consider a nominee, and another ten are silent on the issue. Seven of the 11 Republicans on the Senate Judiciary Committee, the first stop for any judicial nomination, concurred with McConnell by announcing they would not consider any appointment from President Obama.

Only a decade ago, however, McConnell said:

“Any President’s judicial nominees should receive careful consideration.  But after that debate, they deserve a simple up-or-down vote. . . . It’s time to move away from advise and obstruct and get back to advise and consent.  The stakes are high . . . . The Constitution of the United States is at stake.  Article II, Section 2 clearly provides that the President, and the President alone, nominates judges.”

He had held this position for the previous 35 years. In 1970, McConnell wrote:

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The proper role of the Senate is to advise and consent to the particular nomination, and thus, as the Constitution puts it…This taken within the context of modern times should mean an examination only into the qualifications of the President’s nominee.”

The qualifications, according to McConnell, are competence, achievement/distinction, temperament, ethical behavior, and no criminal record. Nothing about political ideology. McConnell voted for a Supreme Court justice late in a president’s term, supporting Justice Anthony Kennedy, nominated only 13 months before the end of Ronald Reagan’s second term. Over a century has lapsed since the president failed to nominate or the Senate failed to confirm a nominee in a presidential year because of the impending election.

In the past, McConnell has stated other rational—and accurate–positions that disappeared after Barack Obama was elected president:

“The President is presumably elected by the people to carry out a program and altering the ideological directions of the Supreme Court would seem to be a perfectly legitimate part of a Presidential platform. To that end, the Constitution gives to him the power to nominate.

“Even though the Senate has at various times made purely political decisions in its consideration of Supreme Court nominees, certainly it could not be successfully argued that this is an acceptable practice.

“The true measure of a statesman may well be the ability to rise above partisan political considerations to objectively pass upon another aspiring human being.”

Reagan supported replacement of justices in the last year of a presidential term:

“The Federal judiciary is too important to be made a political football. I would hope, and the American people should expect, not only for Judge Kennedy’s confirmation but for the Senate to get to work and act on 27 other judicial nominations that have been left in limbo for quite awhile now.”

In July 2008, during the last year of George W. Bush’s second term, Republicans convened a hearing entitled “Protecting American Justice: Ensuring Confirmation of Qualified Judicial Nominees” in reaction to the “Thurmond Rule,” a demand from racist senator, Strom Thurmond, that a president be limited by time to nominate a justice. Almost half a century ago, Thurmond tried to make this mandate in retribution to President Lyndon Johnson’s Civil Rights Act by blocking the president’s nomination of Justice Abe Fortas as Chief Justice in 1968. No rule was passed, and Thurmond said gave the last six months as the timeline for no nominations. Comments from participants in the 2008 hearing:

Sen. Chuck Grassley (R-IA):

“[The idea that July 2008 would trigger the] Thurmond Rule ­­– that’s just plain bunk.  The reality is that the Senate has never stopped confirming judicial nominees during the last few months of a president’s term.”

Eight years later, Grassley said:

“The fact of the matter is that it’s been standard practice over the last nearly 80 years that Supreme Court nominees are not nominated and confirmed during a presidential election year… it only makes sense that we defer to the American people who will elect a new president to select the next Supreme Court Justice.”

Sen. Lamar Alexander (R-TN) said in 2008:

“There’s no excuse for not considering and voting upon a well­ qualified judicial nominee in the United States of America today…  [J]ust because it’s a presidential election year is no excuse for us to take a vacation.  And we’re here.  We’re ready to go to work.”

Now, Alexander wants to allow the next president to fill this lifetime appointment to the Supreme Court.

Sen. John Cornyn (R-TX), in 2008, wanted the two parties to work together “to confirm qualified men and women to the federal bench” in an election year–“to establish that regardless of the next president’s party, the nominees will be treated fairly and on the basis of their qualifications, and not on the basis of ancient political squabbles.”

Mitch McConnell (R-KY) echoed these ideas:

“I think it’s clear that there is no Thurmond Rule.  And I think the facts demonstrate that.”

GOP Sen. John McCain said in 2005 that if Democrats should “win the next presidential election,” they should choose Supreme Court nominees because “that’s the way the system works.” McCain has now reversed this opinion.

In the Washington Post, Paul Waldman wrote about the change in the GOP:

“[Republicans] haven’t just grown more ideologically conservative in recent years, they’ve also grown more procedurally radical. Again and again, they’ve decided that the system of formal and informal norms that make the government work can be discarded if it becomes inconvenient.”

Republicans started out with the argument that there is no history of a president nominating a Supreme Court justice in his last year. Once that excuse was totally debunked, they decided it would be cruel to the nominee because Senate will destroy that person’s reputation. Sen. Ted Cruz (R-TX) said:

“I think that hearing would end up very politicized. And I don’t think it would be fair to the nominee.”

Sen. Pat Toomey (R-PA) made a similar argument:

“[I]t might be just as well not to have a hearing that would, sort of, might mislead the American people into thinking that this is just about the qualifications of the candidate, because it’s bigger than that.”

One reason for the shift in attitude may be a fear of the Senate reverting to a Democratic majority. Of the 36 senatorial positions up for grabs in the 2016 election, 24 are Republican. Of those 24, six are in for difficulty in being re-elected.

Another concern may be popular opinion, as seen in the results of the conservative Rasmussen poll indicating that 51 percent of likely voters believe that Obama should nominate Scalia’s successor, and 53 percent believe the Senate should not “reject or refuse to consider” the nomination. Only 35 percent favor McConnell’s blocking the president’s constitutional duty to appoint Scalia’s replacement.

Yet the cracks appearing in McConnell’s control of his Republicans seem to be disappearing,  and GOP senators are turning toward rejecting any nominee. For example, Sen. Lisa Murkowski (R-AK) earlier stated that the Senate should hold hearings. Her shift in opinion was revealed in tweets urging President Obama to “follow a tradition embraced by both parties” by yielding to the next president:

“If [the president of the United States] ignores precedent, I believe extraordinary circumstances give the Senate every right to deny the nominee an up or down vote.”

The biggest irony about the argument surrounding an appointment to replace Scalia this year comes from the justice’s famous “originalist” view of the Constitution, his belief that laws and judicial rulings in the 21st century should following the text of the Constitution exactly as the Founding Fathers intended. Article II Section 2 of the Constitution states that the president is responsible for nominating members of the high court. Nowhere does the Constitution state “except when a Democratic president has almost a year to serve.”

As Frank Rich wrote:

“By refusing to act on the Scalia vacancy, the [GOP] party will once again brand itself as the party of obstructionism, government dysfunction, and animosity toward the growing majority of Americans who do not fit its predominantly white male demographic.”

December 9, 2015

Scalia’s Affirmative Action Quote of the Week


Media pundits have concentrated on Donald Trump’s outrageous statement that he would keep all Muslims from entering the United States. Last month, Justice Antonin Scalia made a connection between LGBT people, pedophiles, and child abusers in a speech to first-year law students at Georgetown. Today he made outrageous—and dangerous—statements during arguments before the Supreme Court. Scalia is much worse than Trump–Scalia’s in control, Trump isn’t.

Supreme Court Justice Antonin Scalia is interviewed by The Associated Press, Thursday, July 26, 2012, at the Supreme Court in Washington. (AP Photo/Haraz N. Ghanbari)

Antonin Scalia (AP Photo/Haraz N. Ghanbari)

In an affirmative action case out of Texas, the high court listened to lawyers debate the use of race in college admissions. Scalia’s statement:

“There are – there are those who contend that it does not benefit African Americans to ­­ to get them into the University of Texas where they do not do well, as opposed to having them go to a less­-advanced school, a less – a slower-track school where they do well.

“One of – one of the briefs pointed out that – that most of the – most of the black scientists in this country don’t come from schools like the University of Texas. They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in – in classes that are too ­­ too fast for them.”

Talking about black students accepted under affirmative action programs, he said, “They’re being pushed into schools that are too advanced for them.” He added that black students benefit from a “slower track” because “it does not benefit African-Americans” who don’t succeed academically in schools that accepted them under affirmative action policies. He at least started a statement with “there are those who contend.” Nowhere in his statements, however, did he disagree with those contenders.

To summarize Scalia’s responses to today’s case, affirmative action is bad for black students because they’re not smart enough to succeed in good schools.

Fisher v. Texas comes from Abigail Fisher, who complained that she was denied admission to the University of Texas because she is white. A lower court found that she wouldn’t have been admitted under any circumstances, but the case has plowed its way up through the courts to the top deciders. The court sent the case back to the 5th Circuit Court of Appeals last year in 2013, finding that the case needed to be re-examined under “strict scrutiny.” The lower court again found in the university’s favor, and, like a zombie, the case is back.

The university lets in the top ten percent of all high school graduating classes for 75 percent of the accepted students and then uses a process considering race and several other attributes such as socioeconomic status instead of only class rank for the remaining 25 percent. Hopwood v. Texas forbade the consideration of race in admissions in 1997 so the policy of accepting the top ten percent attempted to create racial diversity. Only class rank, however, could exclude a National Merit semifinalist who attended a high-achieving high school—thus the reason for a more holistic approach for part of the students accepted. Race was considered as one attribute after 2003 when the Supreme Court upheld affirmative action as constitutional. Race was added to add “minorities with unique talents and higher test scores to add diversity … to the student body,” according to the 5th Circuit decision.

Today conservatives argued that Texas cannot put race into the mix for a holistic decision. Justice Ruth Bader Ginsburg used the same argument as she did two years ago, that the supposedly “race-neutral” process of admitting the top 10 percent isn’t race-neutral because it makes virtue out of a long history of school and housing segregation and discrimination. Justice Sonia Sotomayor fiercely challenged Fisher’s attorneys.

Justice Elena Kagan was silent: she recused herself because she worked on the case as solicitor general. That brings the number of deciders down to eight—four dedicated conservatives, three progressives, and Justice Anthony Kennedy who has become the swing vote. Meanwhile, three of the conservatives already decided in opposing affirmative action, and Justice Samuel Alito argued that advocates for affirmative action are making racist or condescending judgment. Chief Justice John Roberts kept asking when racial discrimination remedies would no longer be necessary. (He was one of the judges who opened the door letting states discriminate against minorities in their constitutional right to vote by claiming that the Voting Rights Act, which would have celebrated its 50th anniversary this year, wasn’t necessary.) Roberts asked, “What unique perspective does a minority student bring to a physics class?”

The effects of a Supreme Court decision in Fisher will be long-reaching, affecting every university in the nation. There may not be a definitive ruling at this time either. Kennedy asked lawyers if the trial court should collect more evidence although he may have changed his mind later on. As he said, however, “We’re just arguing the same case [as in 2013]. It’s as if nothing had happened.”

Kennedy might have found it useful that 168 black and Latino students with grades as good or better than Fisher’s were also denied entry into the university that year. Fisher also turned down an offer to attend the university starting her sophomore year if she earned a 3.2 GPA at another Texas university school her first year.

The year that Fisher applied to UT, 92 percent of the students were admitted from the top ten percent of the in-state spots. She wasn’t one of them. Her grade point was average and her SAT scores not great. Fisher was represented pro bono in the lawsuit by Project on Fair Representation, funded by conservatives who want to do away with any affirmative action. The group also took the case to the Supreme Court that eradicated vital portions of the Voting Rights Act of 1965.

Fisher has already graduated from Louisiana State University, her second choice, and works in finance at an Austin firm. Her only harm, according to a news reporter who asked, is her inability to tap into the UT’s alumni network and perhaps missing out on a better first job. She seeks only the return of her application fee and housing deposit–$100 in damages. On the other hand, the organization representing her wants to use Fisher to attack the equal protection clause of the 14th Amendment. During the past 150 years, there has been no ban on laws and government programs that consider race. Project on Fair Representation wants to change that.

In a 1971 ruling, the Supreme Court ruled that government could not mandate colorblindness when doing so would defeat the integration requirement of Brown v. Board of Education. In another case, Justice Harry Blackmun wrote, “In order to get beyond racism, we must first take race into account. There is no other way.” An increasingly conservative court has been involved in so-called reverse discrimination cases.

By now, the conservative portion of the court supports Roberts when he said, “The way to stop discriminating on the basis of race, is to stop discriminating on the basis of race.” Scalia called the Voting Rights Act a “racial entitlement.” Basically, the Supreme Court may return to the 1956 Southern Manifesto by Strom Thurmond and Richard Brevard Russell to resist overturning school segregation with the equal protection clause.

Either the current Supreme Court rules in favor of the equal protection clause, or the Project on Fair Representation will go trolling for another self-proclaimed white victim to re-address the issue.

September 19, 2015

‘Persecution’ of Christians

“I don’t think there is any question that the Supreme Court’s decision goes against the natural law. That’s not the way nature functions. So as a result of that, I think Kim Davis and everybody else has the obligation to oppose it.” That’s GOP presidential candidate Rick Santorum’s take on how his perception of “nature” supersedes constitutional rights for U.S. citizens.

The Rowan County (KY) clerk is now out of prison because she’s reluctantly allowing deputy clerks to issue licenses to same-gender couples. Now her lawyers can’t follow the law. The 6th Circuit Court rejected her appeal to overturn a judge’s order to issue marriage license because the lawyers did not go through U.S. District Judge David Bunning, who had ordered Davis to be detained. Lawyers maintained that they skipped that legal step because of the judge’s “extraordinary doggedness.”

Another court may be hearing another case that uses the excuse of religious belief to disobey the law. In defiance of the Supreme Court legalization of marriage equality, Washington County (AL) Probate Judge Nick Williams filed a petition to protect him and anyone else who refuses to issue marriage licenses to same-gender couples. Williams said about the Supreme Court’s ruling, “I’m quite sure they broke several constitutional amendments in that ruling.”

Before Justice Antonin Scalia decreed that the corporation Hobby Lobby is a person with religious rights in denying its women employees their lawful contraception, the ultra-conservative Scalia wrote about religious exemptions in Employment Division v. Smith (1990) that rejected a petitioner’s request to use peyote in a sacrament:

“The rule respondents favor would open the prospect of constitutionally required religious exemptions from civic obligations of almost every conceivable kind—ranging from compulsory military service, to the payment of taxes, to health and safety regulation such as manslaughter and child neglect laws, compulsory vaccination laws, drug laws, and traffic laws; to social welfare legislation such as minimum wage laws, child labor laws, animal cruelty laws, environmental protection laws, and laws providing for equality of opportunity for the races.”

Smith was not about Christianity, which may be why Scalia supported the state of Oregon and not religious rights. The ruling also led to the Religious Freedom Restoration Act of 1993 which “ensures that interests in religious freedom are protected” and opened up all the religious protesting of the past few years. Even so, Scalia suggested that no country would allow religious exemptions on such a grand scale.

Scalia said that he would retire before being forced to rule against his Catholic beliefs. Kim Davis is not as ethical. She refused to issue marriage licenses to same-gender couples, went to jail for a few days because she refused to follow a judge’s order to do so, and now hides in her office allowing deputies to issue licenses but claiming that they are all invalid because they lack her signature.

Twenty-five years ago, Scalia recognized the current problem, that there is no logical stopping place to “religious exemptions.” People claim the religious right not to dispense birth control, photograph same-gender weddings, bake celebratory cakes, etc.  As Jeffrey Toobin wrote in The New Yorker:

“The principle [of religious exemption is] a troubling one—that religious belief carries with it a shopping-cart approach to citizenship. You can choose some obligations but not others, while the legislators and judges figure out which ones are really mandatory. It’s a recipe for further division in an already polarized society—and the prospects, in Kentucky and elsewhere, are for more conflict, not less.”

GOP Mike Huckabee claims that God returned to Earth in the form of Kim Davis. Her compulsion to follow her bible may require her to post a list of couples (or more than couples) who can and cannot get licenses from her county:

  • No – A  license for a man with a consenting woman who doesn’t have her father’s permission – Numbers 30:1-16.
  • Yes – A license for a man and a nonconsenting woman if her father gives her in marriage or sells her to a slave master – Exodus 20:17, Exodus 21:7.
  • Yes – A license for a married man and three other women – 1 Timothy 3:2.
  • No – A license for childless widow and her husband’s reluctant brother because a man has the responsibility to seed children for his deceased brother – Matthew 22:24-28.
  • No – A license for a Christian and a Hindu because they are, according to Paul, “unequally yoked” – 2 Corinthians 6:14.
  • Yes – A license for a soldier and a virgin prisoner of war but only with written instructions on the purification ritual required before bedding her. Also if she fails to “delight,” he must set her free rather than selling her – Deuteronomy 21:10-14.
  • Yes – A license for a rapist and his victim with the father present who has been paid 50 shekels ($580) for the damage done to the father. Also no divorce – Deuteronomy 22:28-29.
  • Yes – A license for a man and his wife’s indentured/undocumented servant but only if the man is reminded that marriage is not required for sex because of community property laws apply and any offspring is owned by the man’s original wife, not the indentured woman – Genesis 30:1-22.
  • Probably not – A license for a man and his mother, sister, half-sister, mother-in-law, grandchild, or uncle’s wife although the decision changes throughout the Bible—siblings okay in Genesis but not later in the text – e.g. Lev. 18:7-8; Lev. 18:10; Lev. 20:11; Deut. 22:30; Deut. 27:20; Deut. 27:23.
  • Absolutely no – A license for a black woman and a white man, or vice versa – Gen. 28:6; Exod. 34:15-16; Num. 25:6-11; Deut. 7:1-3; Josh. 23:12-13; Judges 3:5-8; 1 Kings 11:1-2; Ezra 9:1-2, 12; Ezra 10:2-3, 10-11; Neh. 10:30; Neh. 13:25-27).
  • Also no – A license for a gentile and a Jew – Deuteronomy 7:3-4.
  • Yes – A license for a man and a sex-trafficked teen he bought from a gangster if Kentucky legalizes sex trafficking although Kentucky may not have to pass a law because, according to Davis and others, —but God is higher than the law, according to people like Davis. – Titus 3:1; 1 Peter 2:13-17.

Most of these directions are in the Old Testament, but so are the Ten Commandments, commonly posted inside and in front of public buildings when Christians have their way.

A billboard posted in Davis’ town also tries to be helpful in explaining marriage and the Bible.


Religion in health care also causes a serious problem for women after the Catholic Church has taken over large numbers of hospitals in the U.S. Just one example is 33-year-old Jessica Mann, who is pregnant with her third child and needs a Caesarean for the birth. She also needs a tubal ligation to prevent further pregnancies because she has pilocytic astrocytomas, a brain tumor which can cause blindness and paralysis. At least 30 percent of women choose this procedure, but Genesys Hospital in Grand Blanc Township (MI) refuses to do the contraceptive procedure, calling it “intrinsically evil.” Of the nation’s 25 largest healthcare systems, ten of them are funded by Catholics and receive public dollars while denying some reproductive healthcare. More than 50 percent of obstetrician-gynecologists who work in Catholic Hospitals say that hospital religious policies have directly conflicted with their ability to provide patient care.

Many Christians, primarily those who are fundamentalists, bitterly complain about the persecution that they suffer. The law forces them to serve LGBT people, same-gender couples can legally get married across the United States (if they can get served!), and people want to keep religion out of government. Persecuted Christians can check the following questions to see how severe their persecution is, how much liberty they have lost. Anyone who answers “no” to one of these questions should go the ACLU for help. Otherwise ….

  1. Can you choose to go to any religious service?
  2. Are you allowed to pray in the privacy of your own home? Without worrying about being arrested?
  3. Can you read, buy, and/or own religious books or materials with no threat of imprisonment or death?
  4. Can your religious group build a house of worship in your community? Without protests or denial of building permits based on religion?
  5. Can you teach your children about your faith at home?
  6. Is your religious group allowed equal protection under the establishment clause without giving another religion preferential treatment?
  7. Do you suffer violence or injury or death because of your beliefs?

Christians in the United States can answer “no” to the above questions, but many people of other faiths cannot, both in other countries and within the United States. More and more, political candidates are leading people in the belief that the Christian god is higher than the law of the land. Freedom of religion should be freedom for all, not just for “freedom” to have Christianity rule every person’s life.

My Favorite Religious Story of the Week: Giovanna Sforza shipped 20 pagan books from Arizona to North Carolina. When she opened the box, the pagan books had been replaced by a Baptist hymnal—presumably in a post office.

October 26, 2014

Religious Beliefs ‘Not Reasonable’

scalia425x320“Religious beliefs aren’t reasonable.” That’s what Justice Antonin Scalia said in court on October 7, 2014 during oral arguments for Holt v. Hobbs. Mark that date! Of course, the man who ruled that businesses can have religious beliefs (Hobby Lobby) wasn’t dealing with Christianity. The case concerned whether a Muslim prison inmate in Arkansas would be allowed to keep his beard because of his religious beliefs.  [Photo by Pete Marovich, Zuma Press]

In context, Scalia’s statement came from asking the plaintiff to believe that a half-inch beard would fulfill his religious requirement for a full beard. Before October 7, the justice had claimed that religious beliefs are beliefs and therefore don’t need justification with facts. The four drugs in the Hobby Lobby case didn’t actually produce abortions, but the Supreme Court determined that this didn’t matter. What mattered was that the plaintiffs believed that the drugs would result in abortions. No need for facts. The Court got so carried away that they extended the original decision that satisfied Hobby Lobby owners to all forms of contraception with no religious justification.

Arkansas’ argument is that an inmate can hide something in a beard, even in a one-half inch medical beard permitted in 44 other states. Some of those states have no length requirement for beards, and the state’s attorney could not cite any security problems with beards in other states’ prisons. Arkansas has no limit on the length of hair on inmates’ heads. Then the state claimed that the ban on beards was to “keep prisoners from disguising themselves.”

Hobby Lobby plaintiffs suffered little questioning about the “sincerity” of the corporation’s beliefs. The company even provided birth control coverage to their employees before the Affordable Care Act mandate. In the case about a Muslim prisoner wanting to grow a beard, Scalia was intent on forcing the plaintiff to justify his religious beliefs.

For the first time, I agree with Scalia: religious beliefs aren’t reasonable. Here are some examples of the bigoted hypocrisy of “Christians.”

After Jan Morgan, owner of an Arkansas firing range in Arkansas, declared that her business is a “Muslim-free zone” because they are all killers, Larry Pratt, director of Gun Owners of America, plans to give her award for her action. It’s his opinion that “the Quran … is an instruction to go kill people.” On the other hand, the bible is far more violent than the Quran.

Dan Patrick, the GOP nominee for Texas lieutenant governor, follows the Texas School Board’s desire to require the teaching of creationism in public schools. His rationale is that children become confused because they learn about creationism in Sunday School and then about evolution on week days. This position follows his belief that “there is no such thing as separation of church and state.” As a newly-elected state senator, Patrick walked out of the chamber because a Muslim delivered the opening prayer. Patrick believes in tolerance but thought that remaining during the prayer would signify endorsement. He recently praised Phil Robertson (Duck Dynasty) for his leadership in bigotry toward LGBT people, minorities, and women.

According to the Christian bible, Jesus would have tried to heal the people faced with the current Ebola epidemic.  The “Christian” far right, however, wants to close the border and stop people from going to fight the disease in West African. At the same time, they spread fears about undocumented immigrants from Central America although there are no cases of Ebola among them and oppose the free treatment that the few people in the U.S. have received if they are infected with the disease. Ebola could be stopped at the source with millions from the United States, but the far-right prefers to spend trillions of dollars to kill hundreds of thousands of Arabs.

Rep. Steve King (R-IA) has ratcheted up his rants against gays, cohabators, and divorced people after Pope Francis stated that the Catholic Church should be welcoming to these groups. If King gets his way, these people won’t find eternal salvation in heaven. Asked if divorce and cohabitation are sins, he said:

“What was a sin 2,000 years ago is a sin today, and people that were condemned to hell 2,000 years ago, I don’t expect to meet them should I make it to heaven.”

King did mitigate his remarks by saying that he needed to read the pope’s document carefully before “passing judgment” on it.

Last spring, King said that entrepreneurs have “God-given rights that our founding fathers defined in the Declaration,” but LGBT people have no rights because being gay and lesbian is a “self-professed behavior” and can’t be “independently verified.” Two years earlier, he said that LGBT people should just lie about the sexual and gender identity to avoid being fired. Three years before that he wanted the name of the Matthew Shepard Hate Crimes Bill changed to the “Local Law Enforcement Thought Crimes Prevention Act of 2009″ because he doesn’t believe in hate crimes.

Douglas MacKinnon, a former aide to Ronald Reagan and speech-writer for him and George H.W. Bush, doesn’t want to wait for heaven in order to avoid LGBT people: he wants the South to secede and form an ultraconservative independent state named Reagan. As author of The Secessionist States of America: The Blueprint for Creating a Traditional Values Country … Now, MacKinnon has everything planned for this achievement. His focus is on Florida, Georgia, and South Carolina, leaving out Texas because of the “incursions … from some of the folks in Mexico.” He claims to have the help of a military veteran friend and a group that includes “a constitutional law expert, two former military officers, two former diplomats, a minister, another special operator, and experts on banking, energy, farming, and infrastructure.”

MacKinnon is disturbed with “our leaders” who want:

“… to erase our borders, do away with the rule-of-law, expand the nanny state into a theology, bankrupt or punish American companies in the name of fighting climate change, do away with the Second Amendment, censor or demonize the history of Western civilization and replace it with multiculturalism, give every kid a trophy and turn them into wimps, continue to support the completely unfunded public-employee pensions which are destroying the financial solvency of cities, counties, and states across our nation, add billions every day to our $17 trillion in debt, destroy our health-care system to substitute socialized medicine, vilify fossil fuels, and attack all faith in God with a particular and unhinged bias against the Christian faith.”

Because all the Southern states except Texas take more money from the federal government than they pay into it with their taxes, Reagan–the country–could save the rest of the country lots of money!

Fox and Friends co-host, Ainsley Earhardt, has an argument against separation of church and state in public schools: everyone should accept the “culture” of Christianity instead of requesting the removal of Christian plaques from taxpayer-funded Texas schools. As a representative of the 77 percent of U.S. population declaring themselves to be “Christian,” Earhardt asked two people involved in the debate to talk with her on the show—both of them supporting the plaques. As Pastor Justin Coffman said:

“We’re all about wanting to see the cause of Christ go further. We want to see the cause of Christ in more public arenas in the American culture. We don’t want to take things away from. We want to see Christ in our schools.”

Tiffany Davlin complained that a secular group could “come into a community, which is a strong Christian-majority community, and say what we can or cannot have.”

“Attempt to bully us,” Coffman echoed.

“Yeah,” Earhardt agreed. “Yeah, Justin, you touched on it: the War on Christianity.”

Fox needs a war while waiting for the War on Christmas.

A Texas Justice of the Peace subscribes to the “culture” of Christianity in the South by beginning court sessions with bible readings, followed by a prayer. He promises that the case of anyone who is offended “will not be affected.” Too bad MacKinnon doesn’t want Texas in his new country of Texas.

“Religious beliefs aren’t reasonable.” Justice Antonin Scalia said that on October 7, 2014.

April 30, 2014

Death Penalty Kills Innocent, ”Cruel & Unusual’

Law in the United States is controlled by nine people, six men and three women. It is the final recourse for injustices, and its decision determines legal edicts. That group of people is called the U.S. Supreme Court. They are not bound by any Code of Conduct or other rules.

The last court of appeals for innocent people in prison—even on death row—is the Supreme Court, now ruled by highly conservative justices. Last year, they heard a case about the 1996 Antiterrorism and Effective Death Penalty Act (AEDPA) that prevented prisoners from filing more than one “habeas corpus petition,” that sues the warden for release. After one year following the one direct appeal was lost, prisoners couldn’t even file this petition. The ruling in McQuiggin v. Perkins, however, allowed the petition at any time if new evidence could show innocence. The bar in filing the petition is high: the petitioner must show that “it is more likely than not that no reasonable juror would have convicted him in the light of the new evidence.”

The good news is that a prisoner can appeal conviction based on new, solid evidence. The bad news is that four of the justices disagreed. Justice Antonin Scalia thinks that a man locked up for a murder that he did not commit should not be able to challenge his conviction. Three other justices think that most people in prison after unconstitutional convictions should have no recourse to federal courts. Scalia’s position is that federal courts should not overturn state convictions as long as there were minimal safeguards such as counsel and access to state appellate courts.

In 2009, Scalia wrote, “This court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” Troy Davis was executed two years after Scalia’s statement although seven of the nine witnesses who testified against him at trial had recanted.

Michelle Byrom, who was on Mississippi’s death row for killing her husband, gained a new trial in April after a ruling by the state’s supreme court. Her son had admitted to killing in Byrom’s husband in several documents, including jailhouse letters and an interview with a psychologist, but then recanted on the stand. She was in the hospital with double pneumonia when her husband was killed. The court also required a different judge for the woman’s new trial. Her case, however, is highly unusual.

A study released this week shows that at least 4.1 percent of all 8,000+ defendants sentenced to death in the U.S. during the past four decades are innocent. According to lead author Samuel Gross, a law professor at the University of Michigan law school, this is a conservative estimate. Scalia misrepresented the percentage at .027 percent in 2007 when he was trying to justify killing people. Between 1973 and 2004, 7,482 people received death sentences; 1,320 were executed, and 117 were exonerated. About 2,675 people were taken off death row, but most of them were sentenced to life without parole.

In 1972, the Supreme Court ruling in Furman v. Georgia voided 40 death penalty statutes and suspended the death penalty. Since the Supreme Court reinstated the death penalty in 1976, eight states joined the ten states that had already eliminated the death penalty, six of them in the past six years. Connecticut and Maryland stopped executing people since the map below was published. Click here to see the number of executions since 1976.

death penalty in america

In 35 states, approximately 3,095 inmates are waiting to be executed. Although Connecticut, Maryland, and New Mexico have abolished the death penalty, the law is not retroactive. Prisoners on death row in those states will still be executed. Since 1976, 1,374 have been executed—if you count the botched killing in Oklahoma last night.

Because execution drugs are so hard to obtain, some states are increasingly reluctant to divulge the sources. After the U.S. confiscated the drug sodium thiopental because of questions about where it was obtained, Tennessee hides any information about execution drugs. Only six executions were carried out in Tennessee in over one-half century, but the state has now scheduled 11 of them. The last person executed in the state, Steve Henley, died in 2009 saying that he was innocent.

Oklahoma is now center stage in the death penalty business. Last night, Clayton Lockett struggled violently on the gurney for 13 minutes after the execution began. Doctors stopped the drug injection and tried to resuscitate him, only to have Lockett die of a massive coronary 30 minutes later. An execution scheduled two hours after that of Lockett’s was postponed for two weeks. That’s not the entire story, however.

The state’s supreme court had ordered a stay of execution because the composition and source of the execution drugs were kept secret. Despite this decision, Gov. Mary Fallin said that she would continue with the execution, and the supreme court backed off. The lethal drugs were untested; the United States has been unable to purchase execution drugs from its past source, Europe, for several years.

Oklahoma should have learned its lesson last January when Michael Wilson complained “I feel my whole body burning” as he was being executed in that state. The same month, Dennis McGuire made snorting and gasping sounds for ten minutes and then lived for another 14 minutes before he died in Ohio from an untested two-drug method, resulting in a delay of the next execution until November and a plan to use more drugs.

This failure to execute people without “cruel and unusual punishment” is more common that many people realize. Between 1890 and 2010, three percent of all executions were botched, and lethal injections had the highest error rate—about seven percent. In addition, electric chairs have caught on fire, and hangings have led to decapitations. Gov. Jeb Bush suspended the death penalty in Florida after Angel Diaz had to be given two injections and the killing took more than 30 minutes. The suspension was lifted 18 months later under a new governor.

According to Jimmy Carter’s new book, A Call to Action: Women, Religion, Violence, and Power, “the United States is the only country in NATO or North America that still executes its citizens, and Belarus and Suriname are the only exceptions in the Europe and South America…. One hundred forty-three countries have abolished the death penalty by law or in practice…; 90 percent of all executions are carried out in China, Iran, Saudi Arabia, and the United States.”

Evidence shows that the death penalty is not a deterrent to murder and other violent crimes because of the prevalence of these in the United States. The homicide rate in this country is almost three times greater than in Canada or any Western European country. In the U.S., Southern states have the highest murder rate while they perform over 80 percent of the executions, 35 percent of them in just Texas.

Executions increase homicide rates before, during, and immediately following these tragedies as people become desensitized to killing. The line of thinking is that if the government can kill enemies for vengeance, so should everyone else. Many law enforcement officials have also become desensitized. Susan Green, editor of The Colorado Independent, said the shortage of drugs for execution in Texas led the assistant Oklahoma attorney general to joke with a Texas colleague that he might be able to help Texas get the drugs in exchange for 50-yard-line tickets for a top college football game between the University of Oklahoma and the University of Texas. Emails revealed not only this exchange but also the fact that leftover lethal drugs were injected into the bodies of dead prisoners in what officials called “disposal purposes.”

Both prisoners to be executed last night are black, an example of the extreme bias against minorities, the poor, and those with diminished mental capacity. Scalia has said that it’s okay to execute mentally disabled people because the U.S. Constitution doesn’t rule against executing people with mental illness and diminishment except in severe cases. Homicide victims are six times more likely to be black than white, but 77 percent of death penalty cases involve white victims. Of death row inmates, 56 percent are black or Hispanic; 20 percent of the blacks were convicted by all-white juries.

The percentage of people in the United States who support the death penalty has gone from 80 percent in 1994 to 60 percent in 2013. Most older and white people support it, while young people are less enthusiastic, and ethnic minorities are solidly opposed. These are the people who hold the future in their voting records. The death of Clayton Lockett may also make a difference.

January 17, 2014

Reproductive Rights Subject of SCOTUS, House

This past week, both the federal judicial and legislative systems addressed women’s reproductive rights. The one in Congress was a direct attack while the U.S. Supreme Court just questioned whether women’s reproductive rights should be protected. Last Wednesday, SCOTUS heard oral arguments in McCullen v. Coakley about the 35-foot safety buffer zones and Massachusetts law requires about reproductive health clinics. The purpose of these zones is to help patients, doctors, and other healthcare workers enter facilities without harassment, intimidation, and violence.

Twenty years ago, the ruling in Madsen v. Women’s Health Center made a safety buffer zone constitution after SCOTUS heard the Florida case. As Feminist Majority Foundation President Eleanor  Smeal said, “We know that buffer zones aid law enforcement and reduce violence. Surveys show that buffer zones decrease criminal activity and increase safe access to clinics.” The Massachusetts zone was enacted in 2000 following years of intimidation and violence, including the 1994 murders of two clinic receptionists—Shannon Lowney, 25, and Lee Ann Nichols, 38—by anti-choice extremist Joh Salvi at two separate Brookline (MA) clinics. Five other people were wounded in the attacks.

After anti-choice demonstrators continued to crowd clinic entrances, block cars from entering driveways, and intimidate people who wanted to enter the clinic, Massachusetts strengthened its law in 2007. The law has survived challenges in lower federal courts as judges found that the law is a content-neutral, narrowly tailored time-place-manner regulation that protects the public without infringing on the First Amendment rights of others. Many acts of violence, including murders, occur as people, including a volunteer clinic escort, enter the clinics. The buffer zone provides a line of defense.

The Massachusetts law doesn’t keep people from talking to the protesters, and the protesters are permitted to say anything they want. The objection from protesters is that they aren’t permitted to get into people’s faces—or perhaps to commit violence. The face of the protesters in the court is a sweet-looking grandmother, Eleanor McCullen, who says, “I should be able to walk and talk gently, lovingly, anywhere with anybody.”

Planned Parenthood ‘s amicus brief has a different picture. According to Amanda Marcotte:

“Protesters ‘wore Boston Police Department hats and shirts and stationed themselves, carrying clipboards, at the garage entrance,’ demanding that patients give them personal information. Protesters would attack clinic escorts with umbrellas. While the prior law disallowed directly approaching patients, anti-choicers would follow them around screaming invectives, often through bullhorns. When cops were called, the protesters argued that they were just following, not ‘approaching.’ The police department itself suggested a stronger buffer zone around the front door.”

Michelle Kinsey Bruns, a Virginia-based activist who has volunteered in clinic defense in eight states, said, “Patients know it’s going to be a gauntlet, and they approach it like a combat zone.” Lori Gregory-Garrott, an escort at the last abortion clinic in Mississippi, wrote about the daily battle just trying to get patients past a wall of hostile protesters even if the patients are only picking up their birth control prescriptions. Megan, a counselor at an independent Massachusetts clinic, talked about the accusations of murder and “going to hell” that she constantly hears.

The 35-foot zone about clinics where 90 percent of the work is primary care, contraception, cancer screening, and gynecological services is far less than those for funerals, political conventions, and polling places. Catholic University law professor Mark Rienzi, representing the anti-choice demonstrators in SCOTUS, claims, “Public sidewalks are places that people are supposed to be free to exchange information and exchange ideas.” Polling places require 150 feet, and, by federal law, funerals require 300 feet. A 252 X 98 foot plaza in front of the Supreme Court building is used as its buffer zone.

Justice Antonin Scalia was furious in 2000 after six of the nine judges ruled in favor of a buffer zone in Hill v. ColoradoHe furiously announced, “Our longstanding commitment to uninhibited, robust and wide-open debate is miraculously replaced by the power of the state to protect an unheard of right to be let alone on the public streets.” Except, of course, in the case of the plaza that protects him. This time, he objected to a lawyer’s characterization of the people as protesters,” asserting that the petitioners in this case “don’t want to protest . . . they want to talk to women about abortion.”  If this case were only about protesting, he continued, a thirty-five-foot buffer zone “might not be so bad.”

People at clinics without buffers have reported serious problems beyond being pushed out of the way and sprayed by some unknown liquid. In Alabama, volunteer and clinic escort Pamela Watters described both verbal and physical assaults including someone a protester from Virginia who pushed another volunteer, a great-grandmother, into a patient’s moving car.

When protesters blocked a clinic entrance in Chicago, the city passed an ordinance requiring that protesters stay eight feet away from patients if they are within 50 feet of the clinic entrance. Protesters are still harassing patients by wearing orange vests like the clinic escorts, giving baby booties in gift bags to patients, and videotaping patients.

At EMW Women’s Surgical Center of Louisville, one of the only two clinics in state, an average of 40 protesters line the sidewalks every day, a number that can swell to 100 if students from local bible colleges are bused in. They use megaphones, display signs with aborted fetuses pictures, and block open car doors so that patients can’t get out of their vehicles. The police don’t always show up if someone asks for their help. That’s what people call “freedom of speech” in reference to a lawful act of going into a women’s clinic. That’s what the highest justices in the land are discussing in the safety of their court.

The day before the Supreme Court heard the case about buffer zones, they declined to hear a case about the Arizona law preventing abortions after 18 weeks. The law stated 20 weeks after the woman’s last menstrual period, but the people who voted in favor of the law are apparently science knowledge-challenged. Conception comes about two weeks after menstruation. The Ninth Circuit Court of Appeals had ruled the law unconstitutional and permanently blocked its enforcement. SCOTUS’s refusal to hear an appeal means that the law has been struck down.

Two other defenses of pro-choice came this year when the justices refused to hear Oklahoma’s defense of two anti-choice measures. One would have prohibited the use of one drug that is used to induce an abortion in the first weeks of a pregnancy, and a second would have required costly ultrasound tests for women seeking an abortion.

While SCOTUS works on clinic buffer zones, the House Judiciary Committee hearing spent last week trying to figure out how to keep middle-class consumers from getting health care subsidies if their plans include abortion coverage in H.R. 7.

H.R. 7 men

The committee takes pride in H.R. 7 as a “pro-jobs” bill. Chair Bob Goodlatte (R-VA) said:

“[It is] very, very true that having a growing population and having new children brought into the world is not harmful to job creation. It very much promotes job creation for all the care and services and so on that need to be provided by a lot of people to raise children.”

This isn’t the only crazy conservative reason to block all abortions. Rick Santorum said during his presidential run that having children makes the Social Security fund solvent. Former GOP-supporter Sen. Zell Miller (D-GA) said in 2007 that he wants women to have babies to “fill our Army.”

The next time that House Speaker John Boehner (R-OH) claims that the House is enacting “jobs bills,” check to see exactly what these are. As for the buffer zones, Eileen Shim got it right: “If abortion clinic protesters weren’t such bullies, we wouldn’t need buffer zones.”


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