The Supreme Court, Hate Speech, and the Washington Redskins

The United States Supreme Court just ruled that the government cannot stop someone from getting a trademark on a name that the government considers “hate speech.”

This is an important win for freedom of speech. As I’ve said here many times, the 1st Amendment is meaningless if it only protects speech we all agree with. As the Court held:

[The idea that the government may restrict] speech expressing ideas that offend. . .strikes at the heart of the First Amendment. Speech that demeans on the basis of race, ethnicity, gender, religion, age, disability, or any other similar ground is hateful; but the proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.”

The case involved an Asian-American rock band called “The Slants.” They wanted to trademark their name, but the government said no, you can’t, because it’s hate speech.

This case basically puts an end to the lawsuits against the sports teams with insulting names, such as the Washington Redskins.

Should the Redskins change their name? Absolutely. Should they be forced to do so by the government, making the determination as to what speech is acceptable for us to use? Absolutely not.

Speech we all agree with doesn’t need a 1st Amendment.

The Slants

The Slants

 

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Why Democrats should block Gorsuch

Last year, Obama nominated a highly-qualified person to the Supreme Court but the Republicans, using their “block everything” strategy that they’d held during all eight years of the Obama administration, refused to “advise and consent” as the Constitution requires and didn’t even hold a single hearing on the nominee — something completely unprecedented in American history.Courtroom-Gavel

Now they’re upset that Democrats are planning to do something similar to them.

Oh, you big babies. You can dish it out but you can’t take it.

“But this is different,” they say. “We didn’t think the President should appoint someone when there was an election near, because they people should decide this.”

Well, guess what? The people did decide. The people supported Hillary Clinton by a pretty big margin. The Electoral College may have decided differently, but that’s not what you said. The majority of the people didn’t want you or your President to pick the next Supreme Court Justice.

How’s this, then? The President shouldn’t appoint a Supreme Court Justice when he is being investigated for treason. Isn’t that much better reason to deny it? Oh, right — it’s very different when it’s your leader who is accused of crimes that could have him impeached and removed soon.

Typical Republican logic:  “Never hold us to the same standards by which we hold you!”

 

Supreme Court sees through Republican bullshit

One of the key strategies of Republicans lately has been to create a fake problem and then “solve it” in such a way that the real result takes away rights from people they don’t like.

There’s the fake “voting fraud” issue where their solution just happens to have the side effect of removing many Democrats from the voting rolls.

There’s the fake “transgender bathroom” issue where their solution just happens to take the rights away from people who merely want to pee in peace.

And of course, there are plenty of other fake issues they create, sometimes for the sole purpose of riling up their base and raising money. (War on Christmas, Benghazi, Obama is going to take all your guns, etc. etc.)

One of their more successful fake problems was the “protection of women” one. In many states, laws were passed to require clinics that provide abortions to meet standards that were completely unnecessary and which have nothing to do with the health of women. These restrictions made half of the clinics in Texas shut down.

The Supreme Court saw through all that today. The decision found that these restrictions “provide few if any health benefits for women, pose a substantial obstacle to women seeking abortions and constitutes a, ‘undue burden’ on their constitutional right to do so.”

Cartoon by Ann Telnaes. Yes, I know Scalia isn’t there any more, but I just love this drawing.

Do not underestimate the importance of the Court on your life. They are a way to protect your rights against rabid legislatures. And that’s why it is so important that you vote for Democrats, not just for the presidency but for Senate (so the President can get her nominees approved).

 

Don’t Listen to Republicans telling you the Democrats do the Same Thing

Republican Senators announced today that they would refuse to even consider anyone Obama nominates for the Supreme Court, despite the fact that the President has almost an entire year left in his term. (Apparently, in their minds, Obama only gets 3/5ths of a term).

This is completely unprecedented.w936uez3tdwl6tlcz20y (1)

But hey, don’t let facts stand in your way, Republicans. You never have before.

I’ve certainly seen a lot of it recently.

First, they claimed that Senator Chuck Schumer had given a speech where he said that the Senate should not approve of a Bush nominee in his final year. Of course, all you have to do is read the transcript of that speech to see that the comment was followed by “except in extraordinary circumstances” — and then he explained that the Senate should not approve someone so far out of the mainstream as to be unacceptable.

In other words, the Senate should do its job, have hearings, but should exercise its Constitutional duty to deny a candidate they disagree with.

This is not the same thing as refusing to consider ANY candidate, no matter how qualified.

Then they pointed out how Obama had objected to Justice Alito when he was a Senator, and had threatened a filibuster over it. Yet the Senate still had hearings about the candidate and ultimately did approve him.

This is not the same thing as refusing to consider ANY candidate, no matter how qualified.

Then they found a quote from Joe Biden which basically said that the Senate should not be a rubber-stamp and should refuse to accept any candidate they don’t think would be a good choice.

This is not the same thing as refusing to consider ANY candidate, no matter how qualified.

And it goes on. The right wing blogs post articles about how the Democrats have stood up to Supreme Court nominees in the past, and then they feebly try to fool their gullible readers into thinking this is the same thing as refusing to even hold hearings on any candidate.

It’s sad that some of my more intelligent conservative friends fall for this bullshit, but that’s what it is. There is no way to compare the Senate’s legitimate function to “advise and consent” and even to reject nominees they don’t want with the current Republican policy of sticking their fingers in their ears and saying “Lalalalala I can’t hear you” concerning any candidate.

 

 

 

Why you should be happy Scalia’s gone

No, I am not celebrating Scalia’s death. I am celebrating him not being on the Court any more. I am happy that he can no longer cause harm. I would be just as happy had he merely resigned. CbIYxk6UAAAdFXX

Much of the problem with Scalia concerned his religious beliefs. He believed in a literal devil — that Satan was coercing other people to support gay rights and liberal politics. Since Scalia saw himself as doing God’s work, therefore anyone who held a different position from him was not only wrong, but evil. That is a dangerous and frankly unAmerican view for someone on the Supreme Court to have.

Intertwined with that was his conviction that not only should we consider what the Founding Fathers wanted when they wrote the Constitution, but his belief that he, and he alone, knew exactly what that was — and, amazingly, it always fit perfectly with his own views!

I’ve ranted against this kind of Constitutional fundamentalism before, pointing out that writing from the time clearly indicates that even the Founding Fathers disagreed. Hell, within a few years there were cases before the Supreme Court to determine the meaning of the Constitution because they couldn’t agree.

This attitude of “there is only one interpretation of the Constitution and it’s mine” falls squarely into his religious belief again, since he had the same view of the Bible.

And then for him to pretend that politics had nothing to do with his decisions! He’d claim to care about “state’s rights” unless a state wanted to manage its own electoral process (“but that could allow Gore to be President and we can’t have that!”). He’d say “we can’t overturn the decisions made by a democratically elected legislature” while striking down the Voting Rights Act passed by a huge majority. The only consistent thing about his decisions were his arrogant opinions that insulted everyone who disagreed with him.

But mostly I loathed the man for being so evil, so hateful of anyone different from him — for comparing gays to child molesters and saying blacks should attend lesser colleges because they’re not as smart as white people; for not caring if innocent people get executed; for arguing that discrimination against women was perfectly fine; for saying the sort of thing that, had he been head of the KKK (where he’d fit right in), you would all be saying “I’m glad he’s gone.”

Scalia is one of the main reasons that trust in the Supreme Court has dropped over the years. We used to hold our Court in high esteem, because they were the best and brightest, separate from politics, incorruptible. Then Scalia came along, thumbed his nose at Court ethics (claiming that he didn’t have to follow the same rules other federal judges follow concerning conflict-of-interest laws, “gifts” from people who had cases before the Court, and so on), insulted the other judges in his opinions, ranted publicly about “homosexual agendas” while commenting about upcoming cases, pushed the court to make political decisions like Bush v. Gore, and otherwise did everything he could to ruin hundreds of years of the Court’s image.

Damn right I’m glad he’s gone.

 

 

Nothing Civil About this Disobedience

by Guest Blogger Michael Strauss

The United States has a proud tradition of civil disobedience. And this tradition is one that is heralded by those on both the right (Boston Tea Party, Cliven Bundy) and left (Ferguson, Baltimore). Once again the cry and hue for civil disobedience is being raised, this time primarily by Republican legislators and elected officials, in response to the Supreme Court ruling in Obergefell v. Hodges (legalizing gay marriage nationally).

But this raises a rather simple question: Is this actually civil disobedience?

As an old friend stated, there seems to be nothing civil about this disobedience. And while it was meant as a humorous quip, it is also rather on the nose as well.

First and foremost, civil disobedience, at its core, is still disobedience. When you disobey the law, no matter your reasons, you are punished for that disobedience. That is the side of civil disobedience we always seem to conveniently forget.

Texas AG Ken Paxton ignores the oath he took to uphold the Constitution

Texas AG Ken Paxton ignores the oath he took to uphold the Constitution

Despite the fact that he was one of the most peaceful men ever born, Martin Luther King Jr. was arrested 30 times for civil disobedience. He understood he would be arrested. In fact, mass arrests were literally part of his plan for building publicity for his movement. He never struggled against those arrests and actually refused to accept bail in some cases, in order to show support for his cause.

MLK understood that part of civil disobedience means that you accept your punishment willingly. That is why, no matter how much liberals applauded Bree Newsome (the woman who scaled the flagpole at the SC capitol and removed the Confederate flag), it is right and appropriate that she was arrested and will be tried. If she truly believes in her cause, she should plead guilty.

And then there is Ken Paxton. Ken Paxton would have you believe that he is following in the footsteps of MLK with his civil disobedience against the Supreme Court ruling, but his isn’t. Even if you accept his rather flimsy argument that he is fighting for the rights of religious Americans (that for some reason always seem to be Christians, despite the fact that both Jews and Muslims are likely to hold the same beliefs on “traditional marriage”), rather than against the rights of non-heterosexual Americans, he still isn’t engaging in civil disobedience.

Unlike MLK or Newsome or those patriots in 1773, he simply is unwilling to suffer the penalty for his disobedience. Just the opposite. He explicitly told the clerks and probate judges of Texas that they would have to suffer for obeying his order to invoke religious liberty, in direct violation of the Supreme Court ruling, but that he would be safe in his Ivory Tower. That isn’t civil disobedience. That is simply an abuse of power.

Which brings us to the second reason that Paxton and Abbott and Jindal (and any other elected or appointed official following this path) isn’t engaging in civil disobedience. As my old friend said, there is nothing civil about it. The word “civil” is a reference to Joe or Jane Q. Public. Martin Luther King Jr., the Tea Party patriots, Bree Newsome, Susan B. Anthony and even Cliven Bundy all share a common trait. None of them wielded direct legislative, judicial, or executive power.

Unlike Jane and Joe Q. Public, government officials have legal power and tools to try to change laws. Even Supreme Court rulings can be overruled (the Dred Scott decision is no longer the law of the land). The process may be ponderous, but those tools are available to people at pretty much every level of government, especially to state governors. The average citizen doesn’t have those tools or power, which is why they engage in civil disobedience. Anyone who uses power invested in them to violate the law is simply being a fascist dictator.

If Ken Paxton truly wishes to engage in civil disobedience, then he needs to follow the example of Linda Barnette, the woman who quit her job as a Grenada county clerk rather than issue marriage licenses to non-heterosexual couples. Whether you agree with her stance or not, her decision is a shining example of the correct way to object to this Supreme Court decision. Linda Barnette, a simple county clerk, made a principled, legal stand for her beliefs.

Why are Paxton and Jindal incapable of following her example?

Michael is a New Jersey native that somehow landed in Pittsburgh.  He is a writer by trade and an amateur political commentator by choice.  He enjoys tweaking the noses of liberals and conservatives alike.

What the Court’s Gay Marriage Decision Really Says

By Guest blogger Terri Lynn Coop

June 26, 2015 was one of those days when the wheel of history turned. At the center of the social media celebration and barrage of rainbows is the 35-page opinion on marriage equality penned by Justice Kennedy.

As both a lawyer and an ally, I find the opinion to be succinct, elegant, iron-clad, and a doorway to further equal rights activism here in the good old USA. After I held a series of light-hearted law “lectures” on the subject on Facebook, Mike invited me here to the ‘Quest to take a look at some of the key parts, both obvious and less so, of the opinion.

Overall, the Court grounded the opinion firmly in the 14th Amendment rights of Due Process and Equal Protection under the law. Out of that principle has sprung the right to privacy in what the court calls “intimate relations.” Kennedy went straight to the keystone cases such as Loving that struck down racial bans on marriage and Griswold that protects the right of married people to use contraceptives (yeah, that had to be litigated).

“This Court has invoked equal protection principles to invalidate laws imposing sex-based inequality on marriage . . . and confirmed the relation between liberty and equality . . .”

Strong words right there. We can’t have personal liberty without equality.

“The right to marry is a fundamental right inherent in the liberty of the person, and under the Due Process and Equal Protection Clauses of the Fourteenth Amendment couples of the same sex may not be deprived of that right and that liberty.”

Part of deciphering judicial opinions is to look for the key words and phrases. Here it is “may not.” In other words – NO. No as in Grumpy Cat NO. Nyet. No way, no how are same-sex couples to be deprived of the fundamental civil right to marry.

The Court went on, conflating liberty and personal identity:

“The fundamental liberties protected by this Clause include most of the rights enumerated in the Bill of Rights . . . In addition these liberties extend to certain personal choices central to individual dignity and autonomy, including intimate choices that define personal identity and beliefs.”

The Court has just connected being gay with personal identity, autonomy, dignity, and civil rights. That sets up a key statement from later on in the opinion.

This Court is heavy on precedent. It is a thread through their decisions. This Court backed this pronouncement up with three cases where marriage rights were affirmed for mixed-race couples, prison inmates, and men who were behind in child support cases. Bottom line, other than the requirements that the parties be of age, of mental competency, and not related by a certain degree of marriage or blood, American citizens have the right to marry whoever they want to.

Answering the “traditional marriage” naysayers, the Court held that times change. Society changes and marriage has changed. Traditionally, women were essentially the legal property of their husband under coverture laws. As society began to accept that women were, you know, people, the equal protection laws were used to throw out the old laws.

“These new insights have strengthened, not weakened, the institution of marriage. Indeed, changed understandings of marriage are characteristic of a Nation where new dimensions of freedom become apparent to new generations, often through perspectives that begin in pleas or protests and then are considered in the political sphere and the judicial process.”

In other words, there is no such thing as traditional marriage. There is only marriage as defined by the mores of society. The odd argument that same sex marriage will cause the demise of opposite sex marriage was dismissed as being “without logic.” That is judicial shorthand for “that’s just weird, shut up now.”

The last big issue addressed was the question of states’ rights and use of the legislative process to parse civil rights. The answer was another resounding NO.

The states’ rights argument centers on marriage being traditionally left to the states to regulate under the 10th amendment. Kennedy says “Okay, you asked for it . . .”

“Yet by virtue of their exclusion from that institution, same-sex couples are denied the constellation of benefits that the States have linked to marriage. This harm results in more than just material burdens. Same-sex couples are consigned to an instability many opposite-sex couples would deem intolerable in their own lives. As the State itself makes marriage all the more precious by the significance it attaches to it, exclusion from that status has the effect of teaching that gays and lesbians are unequal in important respects.”

Inherent in the right to regulate is the responsibility to regulate fairly. Or else SCOTUS will step in and make you play nice.

A nod is given to the “religious conscience” opposition movement, but doesn’t bode well for the flurry of what I call hate-pizza laws sure to come pouring out of statehouses in the red states.

“Many who deem same-sex marriage to be wrong reach that conclusion based on decent and honorable religious or philosophical premises, and neither they nor their beliefs are disparaged here. But when that sincere, personal opposition becomes enacted law and public policy, the necessary consequence is to put the imprimatur of the State itself on an exclusion that soon demeans or stigmatizes those whose own liberty is then denied. Under the Constitution, same-sex couples seek in marriage the same legal treatment as opposite-sex couples, and it would disparage their choices and diminish their personhood to deny them this right.”

Object all you want on a personal level, but when you codify it into law, well then you’ve poked the bear and that bear has big sharp legal teeth. This opinion uses the word “but” like a ninja sword.

More proof that the Court does watch TV and knows what is being said about “activist” and “imperial” courts. This is a reminder of the role of the courts delivered with straight and hard with a verbal clue-by-4:

“An individual can invoke a right to constitutional protection when he or she is harmed, even if the broader public disagrees and even if the legislature refuses to act. The idea of the constitution “was to withdraw certain subjects from the vicissitudes of political controversy, to place them beyond the reach of majorities and officials and to establish them as legal principles to be applied by the courts. This is why “fundamental rights may not be submitted to a vote; they depend on the outcome of no elections.”

BOOM! We don’t vote on the rights of our fellow citizens just like they don’t vote on ours. That’s why they are called rights. Also another warning to states that are toying with discrimination laws – the Court is ready and waiting for you.

This opinion is full of this type of elegant direct language. However, toward the end of the opinion is a single sentence that is easy to miss and could be a game-changer:

“And their immutable nature dictates that same-sex marriage is their only real path to this profound commitment.”

Immutable nature. Civil rights language. In that sentence the Supreme Court of the United States just said that being gay is not a choice, that it is an unchangeable part of a person’s personal identity. That opens the door, really kicks down the door, to sexual orientation becoming a protected class. Twenty-nine states now allow employment discrimination on the basis of being gay. This could be the first pebble in the landslide that buries those and other laws.

That big rainbow out there shines on everyone. We are watching history every bit as important as women getting the right to vote and the Civil Rights Act of 1964. It’s a good time to be an American.

Thanks for the invite!

Terri Lynn Coop is a lawyer by education, a writer by profession, and an unapologetic geek the rest of the time. She’s been known to blog at Readin’ Ritin’ & Rhetoric. Her first novel, a legal thriller, “Devil’s Deal,” is available through Amazon.