SCOTUS under Trump

Do you need to amend the Constitution for sexual orientation to be viewed as a protected class in terms of discrimination?

If you do, then LGBTQs are fucked for the foreseeable future, as our country in its current state couldn’t pass a Constitutional Amendment to declare breathing “pretty okay!”

And I still think that there are places in America–more than any of us hoped, and more than many of us realized–where just accepting that “racists gonna racist, so avoid 'em” doesn’t work. Equally true for other forms of bigotry. Categories of services where avoiding them just because you know what you receive will be subpar isn’t okay because there isn’t a second (or third, or fourth) option available to you.

Look, I get it. I don’t want to eat food from some guy who hates “goddamn job stealing spics” and knows I’m the child of an immigrant. And here in a big metropolitan area like Raleigh-Durham, I get the choice to move around and patronize elsewhere. Moreover, due to population size, my skin tone, and my name, I get to pass unnoticed by a lot of the Hispanic-haters I might encounter day-to-day. It’s easy for me not to eat at Chick Fil A since they hate TEH GAYZ cuz there’s all sorts of places to get some tasty fried chicken.

But small-town America, deep-south America, rural wastelands America, which all tragically make up great big swaths of this country, where progress is stagnated and hate is rife? If you’re black, or publicly outed as gay, or whatever else, saying “I won’t patronize the businesses owned by people who hate me” might as well be saying “I will not purchase or use any goods or services.”

Look man. I’ve lived in small towns in eastern Tennessee. I’ve spent huge amounts of time in my dad’s tiny small town area of rural Louisiana. I’ve got friends all over rural Kentucky who grew up in that shit. I am in the goddamn North American Christian Caliphate of hate and bigotry right now.

Some of these places, we’ve got to push the weight of the fed down on the bigots, because if not, we’re just leaving minorities there to rot. For a kid out in Snow Hill, NC, or Barbourville, KY, or Jones Cove, TN, or Bear Island, LA, you’re too alone, too unguarded, too vulnerable without outside help, because those places are a lost cause, socially. Which is why those of us who know better than these hate-fueled hicks have to stomp in all jack boots and federalism and force them to be better, no matter how much the might grumble.

And yeah, they’re gonna grumble, and chafe, and act embittered and put upon. And when you find the restaurateur spitting in the Latina’s food he was “forced” to make or the photographer photoshopping blemishes onto the gay couple he was “forced” to work for or the pharmacist verbally berating the scared teen the morning after prom night asking for the Plan B he’s mandated to give her, you damn well better have the full force of law at your back to shut those shitfucks down when their communities fail to correct their behavior (which they’ve been failing to do since the dawn of time).

It was a rhetorical question. The answer is that you do not need to amend the Constitution to define them as a protected class.

Sure, I accepted this the first time someone said it. For things like needing essential services, such laws can help. I think that in the past, when large corporations were doing it in a more widespread manner, such laws could have been more useful.

But against folks like the cake guy? Ultimately, the folks who are going to court with him over the cake are acting out of spite. Well justified spite, sure, but still just spite. They don’t actually want to buy a cake from him. They just want to force him to sell them a cake.

Y’know? I’m pretty okay with people being spiteful dicks to a bigot. And dragging his name through the mud for months/years. And then, at the end of it all, forcing him to make a beautiful, elaborate cake that says “I ACCEPT HOMOSEXUALS AS MY EQUALS” with a court order and taking his picture with it and HD projecting it onto his living room wall from somewhere just off his property line for every night for the rest of his shitty lfie.

And I totally am too. That’s actually the primary reason why I reject statements like “you should have to do business with everyone”.

I should totally be allowed to refuse to sell anything to that guy.

facepalm Of course! Sometimes I forget this is the Internet. :) Being a glutton for punishment, though, lemme expand a bit.

Without citizen action, you’re rarely going to see government action. We need people leading boycotts, drumming up awareness through the media, organizing sitdowns or strikes, etc. Those are the things that get the attention of the powers-that-be and lead eventually to action. (And it’s worth mentioning that this works best across large populations - it’s a good thing when a story about some kind of discrimination in North Carolina reaches the ears of people from California to DC. Strictly local action is comparatively weak.)

Without government action, the accomplishments of citizen action will be a) limited and b) short-lived. If the government takes a hands-off approach (or worse, supports the bigots) then the negative effects on the bigots and their businesses will be limited to those who are willing to spend the time to become educated on the issues and disrupt their own lives to take action. Do I really need to point out that this is not likely to be the majority of people? Particularly once the initial shock value of the latest media blitz wears off and the news cycle has moved on.

You need citizen action to point out bigotry, and put on the pressure for change. You need government action to codify the solution and enforce it. Citizen action without government backup is weak and fails over time as people lose interest or self-sort into enclaves where bigotry is the norm. Government action taken without prompting from the citizens is rare (not to mention seen as oppressive).

I empathize with the position that says “well, people should just not deal with those bigoted a-holes” - that’s my gut reaction also. But you don’t have to look around too far to realize that most people simply aren’t concerned enough to learn about what their cake-maker (or grocer or local super-store or whatever) are doing to other people. When it is pointed out, it may still not be enough to overcome financial (cheap cake!) or aesthetic (good cake!) preferences. Government action covers both problems: it gives everyone recourse, even when the general public isn’t aware or doesn’t care.

Just to be fairly pedantic, “doing business” with someone is generally not held to be the same as “providing a public accommodation”… and the above discussion muddies the terms.

If I were a builder choosing an investor, I could justifiably choose not to “do business” with a member of the Trump family for practically any reason whatsoever, probably including his race, religion or gender. I am a businessman running a private concern and limiting my business partners, suppliers or even contractors is within my rights.

But if I were a hotel operator and Eric Trump wanted to rent a room, then I - as someone running a “public accommodation” - would have to have a valid reason not to deny service – like a history of trashing rooms, not paying bills, or whatever. Simply saying “I don’t like his kind” could get me into a lot of legal trouble… especially if he could prove it was because of his gender, race or religion.

A “public accommodation” is a hotel, restaurant, theater, etc… but is usually held to be any physical storefront.

Not especially. ONLY. If he can’t prove one of those things, you can refuse to rent a room to him.

WASHINGTON — Justice Neil M. Gorsuch, President Trump’s Supreme Court appointee, is scheduled to address a conservative group at the Trump International Hotel in Washington next month, less than two weeks before the court is set to hear arguments on Mr. Trump’s travel ban.

Stephen Gillers, an expert on legal ethics at New York University, questioned the justice’s decision to speak at the hotel, which is at issue in lower-court cases challenging the constitutionality of payments to Mr. Trump’s companies.

“At this highly divisive political moment, especially as many Trump decisions are likely soon to reach the court’s docket, one just days later, a healthy respect for public confidence in the court should have led Justice Gorsuch to demur,” he said.

Turns out an asshole nominated an asshole to the Supreme Court.
And he’s there for life. Whee!

Kagan is cool-headed and pragmatic, but she does not suffer fools gladly. She does enjoy sparring with Justice Samuel Alito, but Alito is a brilliant intellect with a misanthropic wit. Gorsuch, by comparison, is a Fox News anchor’s idea of a first-rate justice: an insipid ideologue peddling warmed-over dogmas

So SCOTUS is hearing arguments on Janus v. AFSCME, in which the five “conservative” activist justices will eviscerate public unions (because paying union dues is ‘coerced.’) Some reading for those inclined.

https://www.thenation.com/article/how-employers-already-compel-speech-from-workers/
How Employers Already Compel Speech From Workers

In fact, one reason employers can coerce speech is because of the Citizens United decision, which Kennedy has often claimed was about free speech. As Hertel-Fernandez explained, the decision “permits managers to use their employees’ time and effort—a corporate resource—in elections.” Hertel-Fernandez wrote that “many employers can now require that their workers participate in partisan electoral politics, and can even discipline or even dismiss workers who refuse to engage in those activities.”

And while the Koch brothers deliver materials to workers telling them whom to vote for, unions are barred from distributing such materials. The Court’s priorities are clear: speech for corporations, but no speech for workers.

https://www.washingtonpost.com/opinions/the-kochs-are-trying-to-kill-unions-be-careful-what-you-wish-for/2018/02/26/ce810844-1b45-11e8-9de1-147dd2df3829_story.html?utm_term=.bf59c16b19f3

The conservative justices, who speak piously about judicial restraint, could blow up decades of labor-law precedent, while radically reinterpreting the First Amendment. They would do this even though it contradicts what the court unanimously affirmed only a decade ago and even though in this case they have no factual “record” of what the consequences would be — only a desired outcome.

And some entries from LGM that explores this case a little more:

“FREE SPEECH” AS A REPUBLICAN WEAPON

ANTHONY KENNEDY, HACK

And it’s shit like this that helps us remember that we can’t just stop at demonizing those who voted Republican 1 or 3 years ago. The damage their policies are doing stretch back decades. I can only hope their preferred judges show a little more restraint and class than their Congressioncritters.

Looks like SCOTUS has ruled against Trump and Gorsuch was the deciding vote. How wonderful it would be if he suddenly became very liberal. One can dream, I guess.

Very doubtful that he’ll suddenly become a liberal. But still, I bet the ardently anti-immigrant Trumpistas are fuming.

He does live in Boulder, CO…

A good explanation from Jennifer Rubin.

Gorsuch, as he is wont to do, began his concurrence with a didactic explanation of the purpose of the “void for vagueness” doctrine:

Vague laws invite arbitrary power. Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death. The founders cited the crown’s abuse of ‘pretended’ crimes like this as one of their reasons for revolution. … Today’s vague laws may not be as invidious, but they can invite the exercise of arbitrary power all the same—by leaving the people in the dark about what the law demands and allowing prosecutors and courts to make it up.

As he explained, “Perhaps the most basic of due process’s customary protections is the demand of fair notice.”

https://www.washingtonpost.com/blogs/right-turn/wp/2018/04/17/the-trump-administration-loses-an-immigration-case-with-gorsuch-as-the-deciding-vote/?utm_term=.537c0403f251

I think far more importantly than a judges politics is his respect for fairness and process. Vague laws are bad for the reasons he outlined. I’d expect to see Gorsuch rule against Trump in the upcoming constitutional crisis.

Before the Revolution, the crime of treason in English law was so capaciously construed that the mere expression of disfavored opinions could invite transportation or death.

Also known in the UK as “the good old days.” :)

Old post. But I think there is a predator/prey relationship, or a tormentor/tormented relationship, between the Right and the Left. Internationally, maybe things were different in decades past.

Yep.

Thanks for the link. I thought it was valuable and well-written analysis.