Post as much as you like, when you like, with whomever you like. Self-linking is a beautiful thing.
My current open tabs:
The Unapologetic Mexican writes:
Just as I am a living example of indigenous blood meeting European blood and contain this meeting within every cell of my spiritual and physical being, so do we all have this ideological potential within us. We all harbor the ability to act on our greed, on our Empire’s ethnocentrism, on our selfcentrism, on our Right to decide for others. We are all conquistadores, given the right opportunity and weakness. And yet, we are also always able to act otherwise. To consider the culture—feelings, reality, ritual, values—of another, to ask rather than to demand, to share rather than to steal, to think collectively, rather than hierarchically or patriarchically. Not only every day is this within our reach, but from moment to moment. (more)
* * *
* Why do white people whisper the word “black”? (Curtsy: Brownfemipower).
* It’s been claimed, over and over, that intellectual property theft costs the U.S. 750,000 jobs and $200 to $250 billion a year. But as Julian Sanchez exhaustively demonstrates, those numbers have absolutely, positively nothing backing them up.
* Kate Harding very nicely posted a link to my “Fat Monologue” cartoon, and the discussion in comments there is interesting. Fillyjonk’s followup post, Why Fat Men Need Feminism, is one I’m still chewing over, but I recommend it.
* In New Mexico, Elaine Huguenin, a wedding photographer, is being legally punished for refusing to photograph a same-sex commitment ceremony. The case is appalling and the photographer is appealing, and I hope she wins; this is a case where freedom of speech should include the freedom to be a bigoted, discriminating asshat.
* Literal lyrics:
The most bizarre comic strip you’ve never heard of: Arnold by Kevin McCormick
http://bakertoons.blogspot.com/2008/10/arnold.html
AIEEE!
Also comic strips by Don Martin and David Horsey
http://bakertoons.blogspot.com/2008/10/nutheads.html
http://bakertoons.blogspot.com/2008/10/boomers-song.html
Are you disagreeing with what they’re doing in New Mexico because you don’t consider a photography business to be a “public accommodation”? Or you don’t think that refusing to photograph a wedding based on the characteristics of the couple getting married is a form of discrimination that violates NM law?
Also, do you think the Washington State printing business that refused to print invitations for a same-sex ceremony also ought to be exempted from laws prohibiting sexual orientation discrimination?
The closest Constitutional analogy actually is Boy Scouts v. Dale rather than the flag salute or license plate cases Volokh cites (which involved the state’s directly requiring someone to express a sentiment). The Boy Scouts were a public accommodation that did not permit certain people to become members, but in the case of females and atheists, this prohibition was overt and had a purpose. The “Boy” part made that point with regard to girls, and the first line of the Boy Scout oath is a promise to do one’s duty to God.
Although a majority of the Supreme Court found that the BSA also could refuse membership to homosexual in contravention of NJ’s anti-discrimination law, I found the dissenters more persuasive: if heterosexuality is as integral to the Boy Scouts as being male and believing in god(s), surely that ought to be expressed somewhere besides the national organization’s internal handbook. Put it in the name (“The Heterosexual Boy Scouts”), or the oath could revise its last line to “…mentally awake, and sexually straight.”
Similarly, if one considers a photography business to be a public accommodation, then the business should be overt about what kind of customers are unwelcome. If this photographer has the right not to photograph same-sex weddings, she has the right not to photograph mixed-race weddings. I recently had a mixed-race wedding, and if one of the photographers we considered had waited until he met us and realized that we were not the same race to tell us that he only did same-race weddings, we would have been humiliated and inconvenienced.
A public accommodation that considers a certain membership or clientele to be integral to its First Amendment rights of speech or association ought to express overtly who is excluded, e.g. in its name, advertising, etc. For example, Elane Photography could state on the “wedding” portion of their website that due to their desire to express only the joy of weddings that conform to the photographer’s religious beliefs, they do not photograph same-sex weddings — but there was no such statement. As with the Boy Scouts, I suspect that keeping such a policy “internal,” and expressed only to the people who seek to use the accommodation and are denied, is a way to avoid the cost of losing the business of people who do fit one’s requirements but who would be put off by an overt expression of discrimination against others.
I’ve been following 538’s ‘On The Road’ blog series about the election ground game, and while it’s always interesting, the post from Troy, Ohio is particularly good.
Combatqueer has a post up about an army chaplain who is trying to evade charges for raping three women soldiers.
For those with an interest in copyright, an argument in favor of the McCain/Palin campaign’s right to play “Barracuda” against the wishes of Heart.
I disagree with the article’s conclusion:
While copyrights should be respected, artists who abuse copyright to attempt to muzzle politicians’ speech are sacrificing the broader interest for their own feelings and agendas. This kind of conduct is not what copyright is about; copyright law exists to help artists get paid, and politicians who pay for a blanket license to use a song in a campaign are doing exactly what the copyright law says they should.
Artists’ copyrights are important, but the vibrancy of our political discourse is absolutely central. If John McCain wants to tell voters that Sarah Palin is a barracuda, and the most effective way to do so is via Heart’s song, then by all means let it play. And if the Wilson sisters want to mock Republican misuse of a feminist anthem, then let them sing from the mountaintops. But let’s keep courts out of it.
1) I do not agree that copyright is just about Getting Paid. It includes many more rights, including the right to decide where a work will be distributed, by whom it may be performed, etc. If a pedophilia advocacy group wanted to adopt “Thank Heaven for Little Girls” as their anthem, and Lerner and Loewe still had it under copyright and wanted to prevent their work from being used by such a group, they should have the right to do so.
2) The idea that other people have the right to make use of my creations in order to further their own ideas — particularly when those people add NOTHING to my creation — is appalling. It would be one thing if the McCain campaign re-recorded “Barracuda” and maybe changed the lyrics to apply to Palin. Then I would say that refusing to let them use the tune if they had paid to license it was blocking their own freedom of expression. But they aren’t doing anything new with the song; they’re just playing it.
I used to participate in a kind of musical comedy group in school (one member wrote an awesome parody of “Footloose” titled “Fair Use” that pointed out our violations of copyright law), but if one of the copyright owners had objected to our using their work, we would have stopped. It’s really disrespectful of the creator of a work to disregard their wishes as to how it will be used.
And I just posted about a story I was surprised not to see on Alas – John Lewis’s criticism of McCain/Palin’s rallies, and McCain’s subsequent hissy fit.
edit: now it says 90 minutes for the edit window? I’m so confused!
On another thread, Ron said that the “30 minute” edit time actually gave him only 10 minutes. So I decided to extend it to 90 minutes and see what happens.
The Post Racial Multi Cultural World: Get Your Avoid Privilege Card Here: Pointing out that the racism employed by McCain/Palin is not anything new. Racism did not suddenly become an issue because a black man is running. Those that have expressed surprise are showing their privilege because it means that they have the luxury of ignoring the suffering of POC.
Food The Global Experience: Looking at the ways in which food is used to uphold western hegemony.
PG, the short version is that as far as the vast majority of the sponsors of BSA units are concerned, “sexually straight” = “morally straight”; homosexual behavior is a moral choice, not a innate biological property like race and sex are.
A public accommodation that considers a certain membership or clientele to be integral to its First Amendment rights of speech or association ought to express overtly who is excluded, e.g. in its name, advertising, etc.
You are welcome to your opinion, but it’s not clear to me that there’s a legal foundation for this.
Oh, BTW, the BSA does in fact accomodate girls and women in a good part of it’s program. It’s youth programs accomodate young men from the ages of approximately 7 to 21 and young women from ages 14 to 21. And there are no distinctions between men and women serving as adults in any positions (with the exception that if a group is co-ed, then a female adult must be present if female youth are present).
I personally would have no objection to including young women all the way down to age 7 as long as there were no significant changes to the program. They’d still have to demonstrate proper use of axes, knives and saws, etc. I can see some changes in the requirements for Physical Fitness merit badge, but not to, say, Swimming, Lifesaving, etc.
Amp, in another blog I use – http://www.neptunuslex.com – the timer is accurate. If it says you have 2 minutes, you have 2 minutes. I don’t know if he’s using the same underlying blog software as you are or not.
What’s Dia de la Raza? I get a translation of “Day of the Race”, which I presume refers to, say, Hispanic ethnicity and not whatever NASCAR is up to this weekend.
As far as the photographer goes, I think they should have the right to select whoever they want for customers. For example, if they don’t want to do mixed-race weddings, fine. Let that be publicized and see how it affects their business. Hopefully it would kill it. OTOH, if there was a signed contract involved, then they should be penalized for backing out.
I basically agree with Ampersand and RonF on this issue. I think that you have the right to be a bigoted asshole, as long as you’re upfront about being a bigoted asshole, and don’t use the opportunity to actually fuck with people you dislike.
One thing I will add, though, is that now that this is known about her, for an opposite-sex couple to knowingly patronize her is an act in support of homophobia, just as it would be an act in support of racism for a same-race couple to knowingly patronize a photographer who refused to photograph difference-race couples.
—Myca
PG, the short version is that as far as the vast majority of the sponsors of BSA units are concerned, “sexually straight” = “morally straight”; homosexual behavior is a moral choice, not a innate biological property like race and sex are.
The case arose not because Dale said he was engaging in homosexual sex (which I assume is whaty ou mean by “homosexual behavior”), but because higher-ups found out that he was advocating politically for homosexuals. Is that also “homosexual behavior” that is not “morally straight”? If so, call me a homo!
Moreover, this equating is just absurdly false. The Boy Scout Handbook (11th ed.) explains “morally straight” as “To be a person of strong character, your relationships with others should be honest and open. You should respect and defend the rights of all people. Be clean in your speech and actions, and remain faithful in your religious beliefs. The values you practice as a Scout will help you shape a life of virtue and self-reliance.” The Handbook explains “clean” as “A Scout keeps his body and mind fit and clean. He chooses the company of those who live by high standards. He helps keep his home and community clean.” There was no equating of “morally straight” with “sexually straight” until the Scouts started kicking out gays and the gays brought legal challenges. It’s a classic ex post facto justification.
The legal foundation, for requiring an overt statement from a public accommodation that they consider certain clientele to be incompatible with what the accommodation desires to “express,” is that otherwise the Civil Rights Act of 1964 will be gutted. An accommodation that legally can keep quiet about its exclusion of certain people simply by articulating in its court papers (assuming that the excluded person even brings a court action — most won’t bother, especially once there is a well-known legal regime permitting discrimination) that including such people will violate its expressive rights will have a broad ability to engage in such discrimination without suffering even social repercussions.
At least with the BSA, because the case went to the Supreme Court and made the policy of homosexual exclusion well-known, the organization is suffering the consequences of their discrimination — many liberal parents are putting their kids into alternative organizations; cities like Philadelphia refuse to keep giving the BSA free stuff; etc.
The BSA itself seems to think that it excludes girls — see their FAQ:
“Q. Why can’t girls participate in Cub and Boy Scouting?
A. The Cub Scout and Boy Scout programs were designed to meet the emotional, psychological, physical and other needs of boys at various stages of their development. Boys in this age range seek out and enjoy group activities with other boys. These programs were developed after careful professional consideration. The Girl Scouts of the U.S.A. and other female youth organizations have developed programs designed to meet the needs of young girls. The Boy Scouts of America is a private organization, and as such, determines it’s own membership standards.”
Myca, the problem is that anyone who doesn’t follow these cases — and most people don’t, especially when it hasn’t even reached the Supreme Court — won’t know that Elane Photography is a discriminatory business. Why would they? As I pointed out, it’s not mentioned anywhere in the name or in the advertising, and I doubt that if an acceptable straight couple inquires that the business owners say, “You should know that we don’t photograph gay couples.” Again, not requiring a public accommodation that is invoking their First Amendment rights of expression/ association to make that fact public and overtly stated means that it’s quite easy to get the benefits of discrimination without suffering the social costs.
Hm, that’s a good point. I do believe in truth-in-advertising laws, and this seems sort of related.
I don’t think it’s unreasonable to require the information about the bigoted policies to be readily available in order to benefit from the legal protection. The BSA, for example . . . everyone knows (or should know) about their homophobia, so I don’t see much of an excuse for any straight parents choosing to support it.
—Myca
Myca,
It would be easy for someone who isn’t well-informed about discrimination in the U.S. — e.g., a recent immigrant — not to know that the Boy Scouts of America refuse homosexuals in the organization. The UK Scout Section does not practice such discrimination, so far as I know. And I like the idea of a policy that says a businesswoman who wishes to invoke the First Amendment as a defense against anti-discrimination laws must publicize to all customers the fact that she is doing so.
However, I still would want to limit how much the First Amendment can be invoked. I can agree that a photographer is a kind of artist and should have control over what her art expresses, but I don’t think a Kinko’s should be able to refuse to print invitations for a same-sex wedding. There’s got to be a limit on what constitutes “expression.”
Unrelatedly, I think this might be the most dishonest thing I’ve read in the last few days. So of course it’s the most e-mailed article on the site.
This wouldn’t fly, either, because you are putting a “cost” on the exercise of your Constitutional rights. You can’t do that.
Just to be sure that you are basing this on law, rather than viewpoint: You understand, right, that Amp is not currently obliged to provide professional services to the KKK-in-NYC chapter, whether or not they would like to hire him; Kinkos does not have to agree to print Holocaust denial literature; I can decline to be hired to provide legal advice to the McCain campaign; and so on.
Do you want to change that? You cannot write a law which would make one side preferenced over the other. If you want to be able to force Kinko’s to print invitations for Heather’s two mommies, you also will force them to print the nasty nazi shit.
It remains an interesting legal question, but before i discuss it any more, is that what you mean?
Sailorman,
Are you aware that sexual orientation is not a legally permissible basis for discrimination in New York City, but political ideology is? If I run a hotel, I can refuse to allow the KKK to hold a convention there and openly state that it is because I find their ideology abhorrent, without facing any repercussions. However, I cannot refuse service to a homosexual and openly state that it is because of that person’s homosexuality, without facing fines from the city for my violation of the anti-discrimination law.
Litigation itself is a cost on the exercise of one’s First Amendment rights. The Boy Scouts of America spent thousands of dollars in legal costs and fees in order to defend their First Amendment right of free association. Requiring a defendant in a discrimination case to carry the burden of proof on showing that he is excluding someone based on expression/association, rather than out of simple animus toward a minority group, is a cost on the exercise of the defendant’s First Amendment rights.
I am simply pointing out that it would make sense for courts to have a prima facie rule that they will be skeptical of a First Amendment claim to justify exclusion that otherwise would violate anti-discrimination law unless the defendant can point to an open, overt and public expression of a discriminatory policy necessary to maintain the defendant’s expressive/associative rights.
In other words, the default in anti-discrimination law is to say that a person who discriminates on the basis of race, sex, religion, sexual orientation, etc. has violated the law and is subject to civil penalties. A defense to being charged with such a violation is to say that the exclusion is necessary to one’s freedom of expression/ association. The burden of proof is on the defendant. The courts can require that a defendant who makes such a defense must have publicized a policy of exclusion, and that a defendant who has done so then has made a prima facie showing that he is sincere, thus shifting the burden back to the plaintiff to demonstrate insincerity in the First Amendment claim.
This would make courts’ determinations in such cases MUCH easier, because then there aren’t the ex post facto justifications, such as what we saw in the Boy Scouts case of claiming that “morally straight” really meant “heterosexual.” Any group that finds discrimination vital to its First Amendment expression/association rights can preemptively protect themselves against a lawsuit simply by stating overtly and publicly that they are engaging in exclusion of certain groups. This also will avoid the embarrassment and inconvenience to the excluded groups of trying to use the public accommodation and being turned away for what normally would be a trait protected against discrimination.
(Please note that none of the above is legal advice and should not be relied upon as such.)
yes… but that’s a hotel. Public accommodation and all that.
If you own an owner-occupied two family house (actually, in Massachusetts it can be up to 4 units) you can discriminate against whoever you damn well please. You don’t have to rent to gays, straights, whites, blacks, or whoever you happen to hate.
Similarly, as a sole proprietor running your own business, you are not bound by most federal discrimination laws. You don’t have to hire anyone you don’t like, and you can ask every female employee if they plan to get pregnant, and every male employee if they like to shoot Democrats after church on Sundays.
The reason is obvious: there is a cost of making people do what they don’t want to do. There is a cost to telling a business owner that they need to hire someone they don’t like; there is a cost to forcing me to live with someone I detest. This cost exists even if the reason behind the cost is abhorrent: if Joe KKK White Man doesn’t want to hire John Highly-Employable Black Man just because Joe is a racist dickhead, forcing Joe to hire John is still a cost.
When the actor becomes large enough, we (society) feel that the societal benefits of forcing people to act in a certain way, outweighs the cost of forcing them. If Joe is responsible for, say, 15 positions, we would rather piss off Joe than have him discriminate against 15 different Johns. But as a society we place extraordinary value on individual rights. And for individuals, we almost always come down on the side of those rights.
So when you say:
you are talking about a situation in which the courts have already determined the important question of whether the defendant is subject to this analysis at ALL. It is very rarely “a person” involved in an individual capacity. It is usually an entity (such as a corporation), or a person who has a large number of employees, or someone who is acting in the form or role of an employer.
You, personally, can (in most instances) discriminate against whoever you damn well please. It is an issue of entitlement: you are more entitled to choose who you want to hire, than a random person is entitled to demand a job from you.
Litigation costs are not usually counted. I know, they should be-litigation is hideously expensive–but they’re not.
Yes, but it is a completely different animal than is litigation.
Here, try it in a criminal context and you will understand:
-Requiring a defendant to pay to defend herself against a false criminal charge is a burden.
-Transferring the burden of proof to a defendant, so that she must prove herself innocent, is also a burden.
See the issue?
And i am simply pointing out that this doesn’t seem especially Constitutional
in this case, it sounds like a scope argument. Is this antidiscrimination law Constitutional at all? I don’t think it is, as it seems to be being applied to an individual in a manner which inhibits her First Amendment rights, and I am less comfortable than you are, it seems, to go around limiting these without a damn good reason.
Are you familiar with the other rulings and regulation regarding ADVERTISING of discriminatory policies?
the basic rationale is this:
Even if you are in a group which is permitted to discriminate (which is not in a group that is bound by the laws) you are not, generally permitted to advertise the discrimination. The concept is that readers cannot easily tell whether or not you are in an ‘excluded’ group. So the advertising would promote a societal belief that such discrimination is acceptable. this is particularly applicable in advertisements for housing.
If you google it, you will find an interesting suit against Craigslist on this issue.
Sigh. From the outset of discussing this issue, I have cabined my argument to public accommodations. My very first statement in response to Amp’s post was, ‘Are you disagreeing with what they’re doing in New Mexico because you don’t consider a photography business to be a “public accommodation”?’ Certainly if there is no public accommodation involved, anti-discrimination law is irrelevant.
However, you seem to be limiting your analysis to federal anti-discrimination law, which is wholly irrelevant to the New Mexico photography case because the federal law does not prohibit discrimination on the basis of sexual orientation. You do this even though you referenced NY as a jurisdiction in your KKK example, and I pointed out that NY’s anti-discrimination law does bar discrimination on the basis of sexual orientation without barring it on the ground of political ideology. Moreover, it does not define “public accommodation” with any limitation based on the size of the business, and for employer it includes any business with four or more employees. This is typical of local anti-discrimination laws, which tend to be more far reaching than the federal law (understandly for the purposes of both constitutional interstate commerce and political viability). Your analysis of costs for a large versus small employer therefore is irrelevant.
And employment law is in any case irrelevant to the original topic of discussion, which was whether a photographer can be required to accept as clients — not employees — a same-sex couple when she says that doing so would violate her First Amendment right not to express something she finds repugnant. The New Mexico Human Rights Act also applies to public accommodations regardless of their size.
Almost any anti-discrimination law could be read as a violation of rights of association and even expression. For example, in a Manhattan florist’s shop that employs four people plus the owner, the employees and owner necessarily will be in close contact with one another, and there is an expressive element to the florist’s work. Yet the florist cannot refuse to hire black people simply because she does not want to associate with them, and cannot refuse their business simply because she does not want to make up a floral arrangement that she knows will be used to commemorate Kwanzaa. You may consider the NYC Human Rights Law to be a violation of federal constitutional rights, but it seems to have survived challenges thus far.
If you read this link, you’ll find that where a person is exempt from the FHA’s prohibition on discrimination, she also is exempt from the prohibition on discriminatory advertising. I don’t know why you think announcing that one is exempt from an anti-discrimination law, and that one intends to make use of that exemption, would be illegal.
PG, I’ve participated in numerous debates about the BSA’s membership policies and I don’t want to rehash it all over now – nor do I think that anyone else wants to listen to it. Suffice it to say that when that the Scout Law and Scout Oath were written back in 1910, phrases like “strong character”, “clean in your speech and actions”, “life of virtue”, “mind fit and clean” quite obviously excluded homosexual behavior. And from the viewpoint of the BSA, that hasn’t changed. You of course disagree, but it’s been consistent.
As far as the Q & A you posted, there is no contradiction between it and what I said.
Myca:
so I don’t see much of an excuse for any straight parents choosing to support it.
And yet, they do. Obviously, since straight parents are where the vast majority of kids come from. But more to your point – I’ve stated here before that I don’t get into political discussions with the kids, and I stay away from controversial societial discussions. OTOH, I get into a lot of them with their parents. Given where I live, most of them are to the left of me. It’s my guess that about 1/2 the Troop’s parents will be voting Democratic. But while they think that homosexuals should have as much right as anyone else to get a job, rent a house, etc., and some of the parents even think that they should have a right to get “married”, they have different attitudes when it comes to who sleeps in the same tent with their kids, or in the next one over, and what they are looking for in an adult that is to be held up to their child as a moral example. Feel free to speculate on why that is. But it’s a fact.
Suffice it to say that when that the Scout Law and Scout Oath were written back in 1910, phrases like “strong character”, “clean in your speech and actions”, “life of virtue”, “mind fit and clean” quite obviously excluded homosexual behavior. And from the viewpoint of the BSA, that hasn’t changed. You of course disagree, but it’s been consistent.
At the time the Law and Oath were written, those qualities also would exclude masturbaters. So far as I know, the BSA does not exclude people who engage in that behavior — it even includes people who deny that masturbation is weak, unclean and immoral and instead insist that it is simply a normal, acceptable physical act, even a healthy one! There seems to be some picking and choosing about how originalist to be in interpreting documents from 1910.
Despite what you claim is the vast obviousness of these phrases’ meaning, there seem to be an awful lot of people who didn’t realize that of course an organization that required these qualities would be one that excludes homosexuals, which is why I and the BSA v. Dale dissenters advocate the BSA’s being very overt and public about such exclusion. Instead, I read the position statement on the United Way while being completely befuddled about what it was trying to get across. I had to google “boy scouts united way” to figure out that it was addressing defunding by the United Way due to exclusion of homosexuals.
As for why the set of parents who put their kids in Boy Scouts, even knowing about the organization’s discrimination against homosexuals, would think that a homosexual inherently is a bad role model — well, hurrah for selection bias!
As an issue regarding immigration, readers of volokh.com might have caught the post asking the question
“If we opened our borders, how many people would come?”
Unfortunately, the comment section contains a reasonable proportion of idiocy, but the actual question is an interesting one.
And better yet, it has a Readers Digest poll involved. Which is REAL NEWS! Woot!
Can I just vent about Amtrak?
I need to travel over thanksgiving. i want to do the environmentally responsible thing, which (in my case) involves taking the train instead of driving or flying.
Two adults and three kids, round trip from Providence to NYC, with an AAA discount: $650 or thereabouts.
That is SO FREAKING EXPENSIVE.
Sigh.
It’s always like that unfortunately. One time it was cheaper to fly to the Bay Area than take the Coast Starlight.We took the train anyway then caught a Greyhound the rest of the way up the coast.
I love blogging on local stuff especially lawsuits. You just never know what you’re going to find in your email box the next day or even which email box. I got another anonymous remailer to an email address I haven’t used in a while about a lawsuit I wrote about in a week filled with ones to write about. More allegations, can’t be too descriptive b/c City Hall retaliates.
And after seeing way too many photos of male traders on Wall Street emulating the Munch Scream painting the past week, I’m thinking maybe there should be more women on the floor. They say we women are emotional.
I guess Madonna and her husband’s divorce has finally been declared official.
Actually, there has been for many years what is to present day eyes a very humorous reference in the BSHB to the evils of masturbation. I don’t know if it’s in the present edition or not.But it’s quite absurd to compare masturbation to homosexuality and that the response to both should be equivalent.
As far as people not understanding what those phrases mean – that would be an overgeneralization, I think. It seems to me that lots of people DO understand that this is what they mean, and quite agree with it. In any case, there’s no way that one could figure out all the different aspects of an organization that a potential member might disagree with and publicize them. People ask about organizations, they find out at some point or another that there’s an issue they may have a problem with, and they decide to join (or stay) or not. I don’t see a big issue here.
With regards to the United Way – one reason why there’s so much circumlotion there is because there is no “The United Way”. Each local chapter (and I believe there’s > 1000 of them) sets its own standards. Generally only those that are in or near major urban centers have actually decided to stop funding the BSA, and many of those give money to the “Learning for Life” subsidiary of the BSA (that does not have the same membership standards). The great majority of them still give to the BSA and the GSUSA (which based on the number of people excluded is more discriminatory than the BSA if my math is right).
BTW, have you figured out yet why there’s no contradiction between my statement and the Q and A you posted?
So we’re agreed that in 1911, masturbation was considered a practice incompatible with being “clean”?
But it’s quite absurd to compare masturbation to homosexuality and that the response to both should be equivalent.
Why? “Because of its divine institution for the propagation of man, the seed is not to be vainly ejaculated, nor is it to be damaged, nor is it to be wasted.” — Clement of Alexandria. Both masturbation and homosexual acts go against the conceptual tie in most religions (and for most of human history for evolutionary biological reasons) between sexual gratification and conception. Masturbation is an unclean practice. In Scalia’s parade of horribles in his dissent from Lawrence v. Texas, he includes laws against masturbation as ones that can be struck down if the sodomy laws are: “State laws against bigamy, same-sex marriage, adult incest, prostitution, masturbation, adultery, fornication, bestiality, and obscenity are likewise sustainable only in light of Bowers’ validation of laws based on moral choices.”
I thought your point about the admission of women to participate in a select set of Boy Scout activities was pretty much irrelevant to the discussion, which is whether public accommodations should have First Amendment exemptions from anti-discrimination law, and if so, whether they should be obligated to publicize the fact that they use such exemptions and therefore will discriminate against some members of the public. The Boy Scouts already make clear that they are an organization that is for theistic males, which I noted in my very first comment to this post.
At no point in this thread have I said that all “the different aspects of an organization that a potential member might disagree with” ought to be publicized. My recommendation was specifically that if someone has a policy that contravenes the otherwise generally-applicable laws of the land, that policy ought to be publicized because the reasonable assumption among the public is that everyone has to obey the law. I also laid out quite extensively how such publication could expedite the legal process of determining which accommodations should have exemption from such laws recognized, possibly saving the litigants and taxpayers a great deal of time and money.
Here’s the latest racist flyer against Obama in the Inland Empire. It was manufactured by an Inland Republican women group.
This article was written about it.
It’s a picture of a food stamp with “Obama bucks” on it. Obama has donkey ears and a donkey body and there’s pictures of watermelon, fried chicken, Barbeque and Kool-Aid on the food stamp.
(excerpt, article)
One of our police officers just got arrested for rape under the color of authority for incidents earlier this year and they’re not the only incidents he’s been involved in. I received complaints about him two years ago but the guy who told me was too afraid to say anything even when I offered to go with him.
What a night! An officer in my city’s department was arrested for rape under the color of authority and sexual battery for incidents earlier this year and I was told about him two years ago. I had tried to get the man who told me to report what he knew to police and/or the commission but he was too nervous.
So now I’m going to do it.
Hm. The donkey ears and body is consistent with being a Democrat. But the bit with the watermelon and fried chicken and barbeque is a racist stereotype. I don’t know what the bit with the Kool-Aid is about. Is that a stereotype, or is that a riff on “they drank the Kool-Aid” = “They’ve bought into his story”?
Everybody does obey the law. The BSA obeys the law. It’s a basic principle of law in this country that it’s up to people to understand what the law is. There are different laws applicable to public and private organizations and that are applicable under different circumstances. It’s not up to the BSA or anyone else to make a judgement on what “generally applicable” means, what constitutes an “exception” to “generally applicable” and to publicize that. Nor should it be. Understanding the various distinctions is up to the public. Your proposition sounds like you want to require the BSA and other such organizations to be treated like lepers once were under ancient law, having to call out “unclean” if they dared to walk the public streets. Sorry. The law is the law and the BSA obeys it. You don’t get to try to get them to advertise or publicize their policies in a way that satisfies you because they take advantage of a law you don’t like.
You’re going to report the guy yourself? But you have the story second hand. Have you managed to get him to tell the cops what he knows (I hope)?
Take this as encouragement. Corrupt criminal cops are a threat to public order far beyond the ordinary criminal. It’s the duty of any citizen to do what they can to fight it. I support the cops against bullshit accusations and second-guessing life-and-death decisions they have to make in less than a second, but cops who steal and rape and abuse their power must be stopped if people are to be able to trust the police and the government that gives them authority.
Everybody does obey the law. The BSA obeys the law. It’s a basic principle of law in this country that it’s up to people to understand what the law is. There are different laws applicable to public and private organizations and that are applicable under different circumstances. It’s not up to the BSA or anyone else to make a judgement on what “generally applicable” means, what constitutes an “exception” to “generally applicable” and to publicize that.
Um, actually you do have to make these judgments if you are going to engage in discriminatory practices. The NM photographer made the judgment that she should not have to follow the generally applicable anti-discrimination law of the state because she felt that to do so would violate her First Amendment right of expression. By refusing to accommodate homosexual clients, she left herself open to being charged with a violation. If I find French people to be the sort I don’t want as clients, if I am going to refuse them on the ground of their national origin, I’d better be ready to state why I ought to be exempt from laws that generally prohibit such discrimination.
And you’re still ignoring that I said such publication would be sensible because it would create a prima facie defense against being charged with a violation of the anti-discrimination law. If I publicize that I don’t accept French people as clients because it offends what I want to express in my work or my sense of the people with whom I should associate, then French people can’t say that they wasted any time trying to use my public accommodation, and the court will know that this is a sincerely held, consistent belief on my part and not a policy I made up the first time a stinky Frenchman entered my office. In the absence of a publicly stated policy, it would be easy for me to claim that I cannot express/ associate with them when I don’t need their patronage, and then to reluctantly accept Frenchmen as clients when I am desperate for work.
Your proposition sounds like you want to require the BSA and other such organizations to be treated like lepers once were under ancient law, having to call out “unclean” if they dared to walk the public streets. Sorry. The law is the law and the BSA obeys it. You don’t get to try to get them to advertise or publicize their policies in a way that satisfies you because they take advantage of a law you don’t like.
What an absurd analogy. Lepers were victims of an illness; they were not people who voluntarily decided that they wanted to behave in a way that most people were not allowed to behave. Moreover, my recommendation has no application whatsoever to individuals; it is relevant only to public accommodations.
You seem to be under a misapprehension that organizations know from the outset whether they will be exempt from anti-discrimination law. A quick review of Supreme Court cases will tell you that’s completely wrong. Several men-only social organizations have tried to exempt themselves from anti-discrimination laws under the First Amendment freedom of association, only to have the courts mandate that they permit women to become members because there are business benefits to belonging to such clubs.
I haven’t decided yet how to approach this. I don’t have a lot of trust for their investigations, I.A. and others anyway. There’s this assumption I work for them among some which isn’t true. An officer once was asked if he knew me by another and he said, he met me several times but he’s been out of IA for a while.
I don’t know where the guy is and he might have left town. But on the other hand, I think they should be aware that they need to look further back in his history at the possibility that women from a very vulnerable population might have been treated. He’s one of two officers that came to mind when I saw the headline.
The thing is too, if he had gone forward and he’s homeless, they never would have listened to him. I think that’s part of the problem with really serious misconduct like this, even allegations getting heard. Officers in these cases often get busted, but sometime after their crimes have started. In one case, it took about 11 years. That guy’s doing 38 years in state prison.
If this guy is guilty, then I’m glad he got arrested though he’ll get wrist slapped and it will be horrible for the individuals who were the victims in ways that are much different than many other rape victims. Not to belittle what other women go through but rape under the color of authority is its own category. I’ve sat in on prelims in cases like this one.
I don’t think you’ll stamp out sexual assault crimes until you stamp out sexism within the ranks as well. I’ve gotten a bit of an idea what’s going on there and I don’t how they expect to discourage or stamp out this type of behavior with people outside the department when they can’t even do that inside the department.
There are basically two ways of solving the issue of notice.
One way, as PG suggests, is to require those businesses who wish to discriminate to publicly advertise the fact.
The second way is that those business who do NOT discriminate may choose to publicize their lack of discrimination. If this becomes relatively common, then the lack of such publication will serve as a similar notice to the potential consumer.
This would follow the various effective models that we already see in other areas. We don’t require people to advertise that they are “non organic” or “non green” or “non union,” but the use of those labels attracts consumers enough that we have learned to assume everything that is made in the USA, organic, fair trade, or the like will have a notice to that effect.
If there is not a big sign on the bin which touts the “local organic peaches” then we all assume they are non-local, non-organic, peaches. if there is not a “zero emissions vehicle” sticker on a car we assume it is not a zero emissions vehicle. And so on.
This applies to businesses as well (see. e.g. “green certification,” LEED, charity acknowledgments, etc.) So what you would need here is some local organization that would give out “we proudly serve everyone who walks in the door” stickers in exchange for a couple of bucks. No sticker, no assuming it to be true. If the sticker lies, you can sue.
I happen to have this in mind as I am currently engaged in implementing and designing a similar conservation-related certification for businesses. As this solution involves absolutely no question of First Amendment issues (people are publishing what they want, instead of being forced to publish what they dislike) there is good reason, i think, that it is the usual tactic.
“Made in the USA” is not the only label out there. Stuff made in foreign countries is required to be labeled as such even if the maker would prefer not to publicize that fact. The manufacturers of American flags made in China are not noting that fact for the ironic effect. It would be entirely Constitutional for the U.S. government to require that non-organic, hormone-fed, non-local food be labeled as such, just as the government already mandates that packaged food carry nutritional information even when it’s Twinkies and the ingredients strike fear into the heart of man. The domestic food industry simply has no interest in pushing for heavy labeling of raw foods to be the rule — our biggest farm lobbies produce stuff that mostly won’t be sold directly to consumers — whereas domestic manufacturers had a great deal of interest in lobbying for the “nation of origin” labels on cars, clothes, etc.
So much for the myth of heavy First Amendment protection for commercial speech.
As for a kind of “Good Housekeeping” seal of approval on non-discriminatory businesses, Ian Ayres had that idea years ago. See his book Straightforward: How to Mobilize Heterosexual Support for Gay Rights.
In fresher news about the conservative conviction that anti-discrimination law shouldn’t apply to groups that receive federal funding, the Bush Administration has declared that one statute (the 1993 Religious Freedom Restoration Act) allows them to ignore a later-passed statute (which forbids discriminatory hiring for the positions it is financing) and to give taxpayer money to a group that refuses to hire non-Christians for the anti-gang program they’re using taxpayer money to finance.
Kinko’s is allowed to refuse to print kkk material, if it wants? Really?
SheilaK,
What law would prohibit Kinko’s from refusing to print materials it deemed unacceptable?