Sunday, October 31, 2010

An Insane Day of Sanity

Jon Stewart's Rally to Restore Sanity has come to a conclusion. As a resident of Washington, DC, I went to the rally, hoping to get a front row seat, but the size of the crowd was absolutely insane.

CBS News estimated that 215,000 people attended the rally. Other sources put the figure at 250,000. Either way, that's a lot of sanity.

I spent the day taking shots of signs and talking to rally-goers. Here is part of my photo collection. Click the photos to enlarge.

Definitely -- the Best Sign of the day comes from this poor newbie voter in South Carolina.

The best combination of costuming (a lot of people celebrated Halloween) and signage comes from this colonial soldier who wants to repeal the Third Amendment (the one about quartering of soldiers).

I also liked this take on "The Rent Is Too Damn High."

The Capitol building looked lovely on the crisp fall day.

A lot of folks carried signs advocating the legalization of marijuana. Some people used humor to convey the message.

I did not take this picture, but it shows the size of the crowd (I yanked this from a friend's Facebook page).

I could not get shots of some other great signs. One person carried a sign which said that "An old grizzly endorsing a constitutionally challenged witch cannot be good for politics" (very close paraphrase, alluding to Sarah Palin and Christine O'Donnell).

Finally, feel free to use these photos, but please say that you got them from Dissenting Justice. Happy Sanity!

Friday, October 22, 2010

Juan Willams and Conservatives' Sudden Concern For "Workers' Rights"

NPR's recent decision to fire Juan Williams has caused a media frenzy. Although I find Williams' comments offensive and bigoted, I must admit that I am disturbed by the American rush to punish people harshly for making controversial statements.

Why A Progressive Could Feel Uncomfortable About NPR's Decision
People from Shirley Sherrod to Rick Sanchez have recently lost employment over controversies caused by their comments on issues of public concern. In some instances, the discharges have resulted from kneejerk decisions made with incomplete or misleading evidence (Sherrod).

But even when the firings resulted from deliberative processes, as in the case of Isaiah Washington from television's Grey's Anatomy, the discharges still bother me because they isolate a single moment in an individual's history and make it the source of severe sanctions: loss of employment and public shame. Flexibility, proportionality, and context do not exist in these situations. Instead, punishment is the driving force. This does not strike me as a progressive stance.

Academic Freedom for Everyone?
Perhaps I am too impacted by my own status as an academic (with tenure), but I have developed a strong tolerance for controversial and disagreeable speech. In fact, I first became a blogger because I wanted to express my opinion on views with which I disagreed.

Within academia, people do not generally lose their jobs when they make controversial statements; instead, these controversial comments tend to generate debate, reflection and thoughtful criticism. These academic elements are conspicuously absent from American political discourse. I believe that we all suffer from this lack of deliberative reflection and civil exchange of ideas.

Rather than engaging in civil commentary regarding controversy, the public often demands that individuals who make unpopular statements pay for these comments with their jobs. I suspect, however, that most individuals would not like their own employers to apply the same standard. If Americans routinely lost their jobs every time they offended others, the unemployment rate would soar to heights previously unknown. The fact that many of the individuals targeted by punitive firings are public figures does not justify the disparate approaches.

Although rash discharges in response to speech trouble me, companies absolutely have the right to fire employees -- as long as the discharges do not violate the law or a contractual provision. Accordingly, NPR has the right to let Williams go.

Furthermore, I also understand that in some situations an employee's speech could harm the employer or its clientele, thus warranting a discharge. It is unclear to me, however, that this risk has existed in the litany of recent cases in which public figures have lost their jobs as a result of controversial speech.

Why Conservatives Are Being Hypocrites Regarding NPR's Decision
Finally, I am deeply offended by the hypocritical conservative response to NPR' termination of Williams. As Glenn Greenwald so excellently observes, conservatives were completely silent or joyful when people like "Octavia Nasr, Helen Thomas, Rick Sanchez, Eason Jordan, Peter Arnett, Phil Donahue, Ashleigh Banfield, Bill Maher, Ward Churchill, Chas Freeman, Van Jones and so many others" lost their jobs due to controversial speech. Yet, the conservative media and politicians are in a state of utter despair over NPR's termination of Williams. This response is blatantly hypocritical.

The conservative response is also hypocritical because conservatives are usually callous to the conditions of workers. They hate labor unions, do not want workers to organize to create rights in the workplace, and often blame labor for many of the nation's economic problems. Yet, when the highly compensated Williams -- who had a written contract to protect him -- faced discharge, conservatives mobilized to defend him. If the wealthy Williams deserves employment-related freedoms, so do poor and working class workers who, in the absence of unionization, usually do not even have contracts to protect them.

Of course, as Greenwald also observes, conservative do not really care much about Williams' employment. Instead, they are angered that NPR punished him for expressing anti-Muslim bigotry. Thus, NPR is the new object of condemnation in a year of conservative politics laced with anti-Muslim bigotry (as in the so-called "Ground Zero Mosque" controversy).

Conservative lawmakers have even seized upon the moment to renew their effort to kill funding of public broadcasting. Conservative disdain for public broadcast funding and of funding for the arts has a very long history, and it has often been rooted in bigotry (recall the efforts to stigmatize gay artists like Marlon Riggs and Robert Mapplethorpe who received public money in the 1990s).

Final Take
NPR made a business decision to fire Williams. I do not contest the organization's right to make this call. I do wonder, however, whether the country can learn to become more comfortable with controversial speech and to construct a more civil public discourse. Rash firings of individuals -- followed by a political campaign of hypocrisy by opponents -- can only make matters worse.

Thursday, October 21, 2010

DADT Emergency Stay: Analyzing the Law and Politics

The US Court of Appeals for the Ninth Circuit has issued an "emergency stay" of a US District Court ruling that enjoins enforcement of Don't Ask, Don't Tell. The stay is only temporary, and it maintains the status quo until the court can fully review the issues raised by the government's request.

Legal Issues
The legal issues related to this litigation combine many of my teaching and research specialities (e.g., Constitutional Law, LGBT rights, and Remedies). I have read all of the legal papers submitted in the case related to the stay (located on the Ninth Circuit website).

The government makes some valid points in its motion for a stay. Namely, an abundance of Supreme Court precedent dictates that courts must display deference to Congress when it regulates military affairs. The government argues that the District Court failed to show proper deference when it issued the injunction.

Some of the government's arguments, however, are very flawed. For example, the government continues to use the dramatic label "worldwide injunction" to describe the judge's order. That label is geared to catch the attention of the 24-hour news racket, but it has very little legal value.

The lower court's injunction properly enjoined the government from enforcing a statute that it had already determined was unconstitutional on its face. The only reason why the injunction is "worldwide" is because the military has a worldwide presence. Nothing is gained from making dramatic -- but baseless -- legal arguments.

Furthermore, the government contends that the injunction should only apply to the plaintiffs and not to all gays and lesbians currently in or who seek admission to the military. This argument is also flawed.

The District Court held that the law on its face violates the Constitution. While this conclusion is susceptible to reversal, once a court determines that a law is "facially" unconstitutional, it can enjoin enforcement of that law altogether. If, on the other hand, the court had only decided that the law was unconstitutional "as applied" to the plaintiff in this litigation (i.e., the Log Cabin Club), then a more limited injunction would have been appropriate.

Political Issues
The case is undoubtedly a political nightmare to Democrats. During his presidential campaign, Barack Obama described himself as a "fierce" advocate for LGBT rights. He has also repeatedly said that he opposes DADT. Nonetheless, his administration has defended the statute and has now obtained a temporary stay of a judicial order that bans enforcement of a law he claims to oppose.

Dan Choi -- a former member of the military who was discharged because he is gay -- was on the news circuit this morning expressing anger over the Obama administration's decision to pursue an appeal in the litigation. Choi also stated that he would not vote for Obama in 2012.

It is likely that many other LGBT rights advocates will express similar disdain for Obama and the Democrats. But Obama has clearly chosen to align himself with conservative interests on this subject, even as he attempts to support gay rights. He is not the first (and probably will not be the last) president to triangulate on this matter.

Tuesday, October 19, 2010

Wife of Clarence Thomas to Anita Hill: Can We Talk?

The weird (and presumably dead) Clarence Thomas-Anita Hill saga came back to life recently. The New York Times reports that Virginia Thomas, the wife of Justice Thomas, recently telephoned Hill and left a message on her Brandeis University voicemail. Thomas has acknowledged that she left the message.

In her message, Thomas says:
“Good morning, Anita Hill, it’s Ginny Thomas. . . .I just wanted to reach across the airwaves and the years and ask you to consider something. I would love you to consider an apology sometime and some full explanation of why you did what you did with my husband. So give it some thought and certainly pray about this and come to understand why you did what you did. Okay have a good day.”
"Ginny" says that she is trying to extend an "olive branch" and that her offer to talk with Hill remains open. Hill, however, forwarded the message to the Brandeis Department of Public Safety, and the university has sent the message to the FBI. The New York Times does not indicate how the voicemail might constitute criminal activity, warranting FBI involvement.

In 1991 Hill offered very dramatic testimony during the Thomas confirmation hearings. Hill accused Thomas of sexually harassing her while he was her supervisor at the Department of Education. Thomas denied the allegations and described the Senate hearings as a "high-tech lynching." The lynching analogy, however, was grossly ahistorical because the lynching of black men did not involve claims of sexual assault by black women.

The hearings captivated the nation, and the Senate subsequently confirmed Thomas to the bench. Nearly 20 years later, his wife seeks to re-open the drama.

Pentagon Instructs Military Recruiters to Accept Gay and Lesbian Applicants

In response to a federal court order enjoining the enforcement of Don't Ask, Don't Tell, the Pentagon has instructed military recruiters to accept gay and lesbian applicants. DADT is a federal statute that bars participation in the military by gays and lesbians. Although the policy suggests that the military will not inquire about a servicemember's sexual orientation, numerous individuals have faced termination without "telling" the military about their sexual identity.

Last week, federal judge Victory Phillips in California issued an injunction that bars enforcement of DADT. The injunction applies to the military as a whole.

Although the government argued that the injunction should only apply to plaintiffs in the litigation, this conservative approach is not warranted by legal precedent. Nevertheless, appellate courts and especially the U.S. Supreme Court could reverse the injunction for failing to accommodate the military's belief (albeit a weak position) that inclusion of out gays and lesbians will harm troop morale.

Furthermore, as I have previously argued on this blog, the court's conclusion that DADT violates the Constitution is vulnerable to reversal for several reasons. The conservative bloc on the Supreme Court -- including Justice Kennedy -- could punch holes in the ruling by applying precedent that takes a more moderate approach to gay rights.

Nevertheless, at a hearing today, Judge Phillips indicated that she will not likely stay the injunction pending appeal. Accordingly, Pentagon officials have told recruiters to stop enforcing the policy with respect to applicants. It is unclear from early news reports whether the Pentagon has discontinued enforcing the policy against current members of the military, as the court order requires it to do.

Happy Days Actor Tom Bosley Has Died

The Washington Post reports that actor Tom Bosley -- famous for his role as Howard Cunningham on Happy Days -- has died. Bosley was 83. The Washington Post article has a good summary of Bosley's accomplishments.

Message from NY Gubernatorial Candidate: Rent Is Too Damn High!

The New York gubernatorial debate contained some comedic moments courtesy of candidate Jimmy McMillan. McMillan stressed one central theme during the debate: The Rent Is Too Damn High. Fittingly, the political party that McMillan's founded and that he represents bears the same name. Thanks to Gawker for the scoop.

Predictably, McMillan's comments are becoming a web sensation. I have posted YouTube footage below. Please note that McMillan's comment about marrying a "shoe" is in response to a question about same-sex marriage. Apparently, he is not opposed to the idea.

Tuesday, October 12, 2010

Washington Post Columnist "Angry" With Injunction Banning DADT

Washington Post columnist Jonathan Capehart is "angry" with federal judge Victoria Phillips's order that enjoins the military from enforcing Don't Ask, Don't Tell. Although Capehart agrees with the "fairness" of the ruling, he believes that Congress should repeal the statute:
[T]his ruling makes me angry. Not because I disagree with the action taken, per se. But because the repeal of "don't ask don't tell" ought to be done by Congress. Unfortunately, Congress has failed to act.
It is not entirely clear whether Capehart is simply angry that Congress "failed to act" or whether he believes that the court should have waited for Congress to act. If Capehart is angry with Congress alone, then I agree with his position.

If Capehart, however, believes that the court should have waited for Congress to act, then I must dissent from this position. People have made similar arguments in other contexts. For example, conservatives, including members of the Supreme Court, have argued that the Supreme Court should have declined to find a constitutional right to terminate a pregnancy in Roe v. Wade. At the time, conservatives argued that the democratic process -- not courts -- should resolve the matter. Similarly, conservatives have criticized court rulings that invalidate laws banning same-sex marriage, and they have expressed a preference for legislative action instead.

Judge Phillips, however, did not "repeal" DADT. Instead, she enforced the Constitution. Generally, judges should not wait for lawmakers to act before they remedy violations of the law. This argument is even more compelling when the same legislature (Congress) enacted the unconstitutional law in the first place. I commend the judge's ruling -- even though I think parts of it are subject to criticism, if not reversal. Congress has delayed justice in this area far too long.

Federal Judge Enjoins DADT, But Ruling Not Flawless

A federal judge in California has declared Don't Ask, Don't Tell unconstitutional and enjoined enforcement of the anti-gay policy. The judge held that the policy violates the Due Process and First Amendment rights of gays and lesbians. Both the opinion and the injunction are available online.

I have read the injunction and the 86-page opinion. Although I agree that DADT is unconstitutional (and homophobic), the judge's ruling is not without weaknesses. There are three elements to the decision that could result in a reversal.

First, the court does not substantially discuss "deference" to the military. Although military deference has often resulted in unjust rulings, it is still a doctrine that the Supreme Court applies in cases challenging both military practices and federal statutes regulating the military. I would like to have seen more discussion of this subject in the opinion.

Second, the court applied "heightened scrutiny" to determine whether the policy violated the Due Process Clause of the Fifth Amendment. Heightened scrutiny refers to a more rigorous judicial test that usually applies when important rights are at stake or when the government is engaging in certain impermissible forms of discrimination.

The court reasoned that the Supreme Court ruling in Lawrence v. Texas and Ninth Circuit caselaw mandate the application of heightened scrutiny. It is unclear, however, whether Lawrence requires the application of heightened scrutiny. At least one federal appeals court has ruled that it does not, and many progressive legal scholars have, in fact, condemned the case for not being as serious about anti-gay discrimination as many commentators believe it is. Furthermore, the specific Ninth Circuit test is not widely applied in constitutional cases, and this could present problems if the litigation reaches the Supreme Court.

The First Amendment ruling also raises questions. Several other courts have denied that DADT raises First Amendment questions. These courts reason that admissions of sexual orientation simply inform the military that the individual fits within a prohibited class of service members. I do not believe that the issue is this simple, and neither does the federal judge in California. Nonetheless, I suspect that the government will contest this portion of the ruling as well.

There is one additional issue that I do not believe will lead to a winning argument for the government. The court's injunction permanently enjoins the military from enforcing DADT. The government argued that the court should have issued a more discrete injunction and enjoin enforcement of the policy only against members of The Log Cabin Club (the conservative gay organization that brought the litigation). Although some conservative caselaw calls for limited injunctive relief, precedent supports generalized injunctions in these circumstances.

In sum, I agree with the outcome of the case of much of the court's reasoning. I have only highlighted these weaknesses to inform readers who abhor the policy that the fight against it is not over.
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