At least in some instances, law undoubtedly has moral aims. Murder, rape, and incest are but a few cases in which laws act to protect and preserve a moral ecology. Oftentimes, however, law is constricted to its own sphere and construed to be entirely separate from the notion of morality. In setting out or explaining legal norms, officials cannot but use the language of obligations, rights, permissions, powers, liabilities and so on. What officials thereby claim is that law imposes obligations, creates rights, grants permissions, confers powers, and gives rise to liabilities. One might think that the claim here need not be a moral claim. In fact, officials are claiming legal obligations, legal rights, legal permissions, and legal powers. But that cannot be all that their claim for law amounts to. A legal obligation, right, or permission is but only an obligation, right, or permission that exists according to law. Furthermore, an obligation, right, or permission that exists according to law is none other than an obligation or right or permission, the existence of which law claims. So claiming the existence of a legal obligation is simply claiming the existence of what law claims to be an obligation. Therefore, legal obligations are claimed to be something. A ‘moral’ is the name given to the kind of obligation that legal obligations are claimed by law to be. Legal obligations are claimed to be obligations that are not merely claimed, and hence that are not merely legal. They are claimed to have a standing beyond law. As demonstrated, morality clearly forms part of law.
Law can form part of morality. For instance, in terms of morality, I have a reason not to crash my car into yours. That is, I have a moral reason to drive my car on the same side of the road as your drive yours on. Morality is indifferent as to whether I choose to drive my car on the left or right side of the road. Rather, morality is concerned with both by car and your car driving on the same side of the road, thus avoiding a potentially dangerous collision. On the contrary, the law enforces whether we drive on the left or right hand side. Insofar as we both are willing to obey the law and therefore drive on the same side of the road, the law’s intervention and authority provides a suitable way by which the moral principle is attained.
Conversely, morality can form part of law. Indeterminacies of language and intention on the part of law-makers bring morality to bear on their legal deliberations. Judges, the legal officials most publicly afflicted by such indeterminacies, usually rely upon existing legal norms as far as possible. After which, the judge usually combines existing legal norms with other premises, including moral premises not hitherto recognized by law, to reach new legal conclusions. Once the judge uses a moral norm in her legal reasoning, the moral norm applied becomes legally justifiable.
Friday, October 29, 2010
Monday, August 30, 2010
Judge Walker: A Social Scientist
Judge Vaughn Walker, in deciding that California’s Proposition 8 outlawing homosexual marriage was unconstitutional, managed to: 1) override a majority vote; and 2) assume privilege and expertise to make sweeping conclusions over highly-divisive issues even social scientists cannot agree upon. I wish to concentrate on the role the Courts in a democratic society.
Judge Walker’s opinion is filled with dubious social science ‘facts’ he presupposes to be widely-accepted. Walker claims that evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Most legal experts predict the marriage issue will eventually reach the Supreme Court. If the Court decides to take the case, they would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to the justices’ personal lights. Even many supporters of abortion now consider Roe a mistake. Short of any basis in the text or original understanding of the Constitution, Roe has become a symbol of the judicial usurpation vested in the people and their representatives. By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Remember: judges should impartially interpret the law, not partially legislate it.
Judge Walker’s opinion is filled with dubious social science ‘facts’ he presupposes to be widely-accepted. Walker claims that evidence shows beyond any doubt that parents’ genders are irrelevant to children’s developmental outcomes. Most legal experts predict the marriage issue will eventually reach the Supreme Court. If the Court decides to take the case, they would repeat the error in Roe v. Wade: namely, trying to remove a morally charged policy issue from the forums of democratic deliberation and resolve it according to the justices’ personal lights. Even many supporters of abortion now consider Roe a mistake. Short of any basis in the text or original understanding of the Constitution, Roe has become a symbol of the judicial usurpation vested in the people and their representatives. By short-circuiting the democratic process, Roe inflamed the culture war that has divided our nation and polarized our politics. Remember: judges should impartially interpret the law, not partially legislate it.
Tuesday, August 17, 2010
Discrimination Against Convicted Felons?
UPDATE: The past two weeks, I have been closely following the Prop 8 SSM legal process. I am working to finish an analysis of this issue.
In the month of July, I posted several pieces on race-politics, specifically affirmative action. Having finished "Audacity of Hope" by President Barack Obama, I noted that although Obama did not expressly condemn affirmative action, he did consign it to a category of exhausted programs that "dissect[s] Americans into 'us' and 'them' and that "can't serve as the basis for the kinds of sustained, broad-based political coalitions needed to transform America." As president, Obama has repeatedly eschewed race-targeting (with respect most notably to employment policy) in favor of "universal" reforms that allegedly lift all boats.
Consider this: The federal Equal Employment Opportunity Commission (EEOC) is warning employers that it is illegal to use a prospective employee's past conviction records, even for serious felonies, as an "absolute measure" as to whether they should be hired because this "could limit the employment opportunities of some protected groups."
This is, the EEOC says, because blacks and Hispanics are over-represented among felons.
But blacks and hispanics also have an unfortunate higher high school and college dropout rates than whites and Asians -- surely this could be determined to be a disparate impact. Employing EEOC's "line of logic", will employers be permitted to consider an applicant's educational background and training in the hiring process? Title IV of the Civil Rights Act of 1964 prohibits discrimination based on age, race, or gender. It does not, however, prohibit discrimination against character.
In 47 of the 50 states, state law holds employers accountable for the irresponsible and/or threatening behavior of an employee if the employer could reasonably anticipate such behavior. With the EEOC's new guideline, employers will be forced to hire an ex-convict, and also be liable for a convict's potential threatening behavior. This is absurd.
While I am in favor of giving people "second chances", I strictly oppose overreaching federal regulations that force businesses to disregard 'character' when determining which prospective employee to hire. When a day care center is forced to hire a man or woman formerly incarcerated for child abuse, we shall see who still disagrees with me.
In the month of July, I posted several pieces on race-politics, specifically affirmative action. Having finished "Audacity of Hope" by President Barack Obama, I noted that although Obama did not expressly condemn affirmative action, he did consign it to a category of exhausted programs that "dissect[s] Americans into 'us' and 'them' and that "can't serve as the basis for the kinds of sustained, broad-based political coalitions needed to transform America." As president, Obama has repeatedly eschewed race-targeting (with respect most notably to employment policy) in favor of "universal" reforms that allegedly lift all boats.
Consider this: The federal Equal Employment Opportunity Commission (EEOC) is warning employers that it is illegal to use a prospective employee's past conviction records, even for serious felonies, as an "absolute measure" as to whether they should be hired because this "could limit the employment opportunities of some protected groups."
This is, the EEOC says, because blacks and Hispanics are over-represented among felons.
But blacks and hispanics also have an unfortunate higher high school and college dropout rates than whites and Asians -- surely this could be determined to be a disparate impact. Employing EEOC's "line of logic", will employers be permitted to consider an applicant's educational background and training in the hiring process? Title IV of the Civil Rights Act of 1964 prohibits discrimination based on age, race, or gender. It does not, however, prohibit discrimination against character.
In 47 of the 50 states, state law holds employers accountable for the irresponsible and/or threatening behavior of an employee if the employer could reasonably anticipate such behavior. With the EEOC's new guideline, employers will be forced to hire an ex-convict, and also be liable for a convict's potential threatening behavior. This is absurd.
While I am in favor of giving people "second chances", I strictly oppose overreaching federal regulations that force businesses to disregard 'character' when determining which prospective employee to hire. When a day care center is forced to hire a man or woman formerly incarcerated for child abuse, we shall see who still disagrees with me.
Monday, August 2, 2010
Understanding Preemption
Understanding the Doctrine of Preemption:
Under the Supremacy Clause of the U.S. Constitution, all federal law, including treaties, shall be the “supreme law of the land” and as such, supersede any state or local state in conflict with federal law. For example, the federal government may require that all U.S. citizens pay a federal tax. If the state of Washington mandated that its citizens do not pay the federal tax, the state of Washington’s law would be in violation of the Supremacy Clause. The federal tax law pre-empts Washington state’s tax law.
As the argument stands, some claim that Arizona’s new immigration law violates the Supremacy Clause or doctrine of preemption. State laws are pre-empted by federal law in two circumstances: 1) when there is a conflict with federal law or 2) when Congress has so thoroughly regulated a field that there is no room for even congruent state laws.
An example of (1): Los Angeles and San Francisco have become “sanctuary cities”. In both cities, the state of California has made it illegal for the police to contact ICE (a federal agency) to report illegal aliens. Hence, for illegal immigrants, they become a “sanctuary”. Because ICE is the mechanism by which federal immigration is enforced, the state of California’s law prohibiting its police force to contact ICE, is in violation of the Supremacy Clause.
An example of (2): If indeed, Arizona’s law agrees with federal law, Congress may have engaged in “field pre-emption” by occupying the entire field of immigration, thus prohibiting even harmonious state laws. Field pre-emption may arise, for example, in the case of federal health and safety laws, so that manufacturers of cars, medical devices, and drugs are not forced to comply with the laws of 50 different states to sell their products nationally. According to the Supreme Court’s most recent pre-emption ruling, Arizona’s law is not pre-empted because Congress did not expressly prohibit state regulation of illegal aliens.
De Canas v. Bica (1976), the Court held 8-0 that a California law prohibiting employers from hiring illegal immigrants was not pre-empted by federal law. Justice William Brennan concluded that “the federal government’s supremacy over immigration is strictly limited to: (1) a determination of who should or should not be admitted into the country and (2) the conditions under which a legal entrant may remain.” In short, there is no “field pre-emption” of state laws dealing with aliens, nor is there an explicit statement from Congress pre-empting state regulation of aliens.
Because the Arizona law precisely coincides with federal immigration law, and because the Court has ruled “field pre-emption” does not apply to immigration, the Arizona law is therefore constitutional. The Arizona law would be unconstitutional if and only if it is a violation of federal law to enforce or uphold federal immigration law.
Under the Supremacy Clause of the U.S. Constitution, all federal law, including treaties, shall be the “supreme law of the land” and as such, supersede any state or local state in conflict with federal law. For example, the federal government may require that all U.S. citizens pay a federal tax. If the state of Washington mandated that its citizens do not pay the federal tax, the state of Washington’s law would be in violation of the Supremacy Clause. The federal tax law pre-empts Washington state’s tax law.
As the argument stands, some claim that Arizona’s new immigration law violates the Supremacy Clause or doctrine of preemption. State laws are pre-empted by federal law in two circumstances: 1) when there is a conflict with federal law or 2) when Congress has so thoroughly regulated a field that there is no room for even congruent state laws.
An example of (1): Los Angeles and San Francisco have become “sanctuary cities”. In both cities, the state of California has made it illegal for the police to contact ICE (a federal agency) to report illegal aliens. Hence, for illegal immigrants, they become a “sanctuary”. Because ICE is the mechanism by which federal immigration is enforced, the state of California’s law prohibiting its police force to contact ICE, is in violation of the Supremacy Clause.
An example of (2): If indeed, Arizona’s law agrees with federal law, Congress may have engaged in “field pre-emption” by occupying the entire field of immigration, thus prohibiting even harmonious state laws. Field pre-emption may arise, for example, in the case of federal health and safety laws, so that manufacturers of cars, medical devices, and drugs are not forced to comply with the laws of 50 different states to sell their products nationally. According to the Supreme Court’s most recent pre-emption ruling, Arizona’s law is not pre-empted because Congress did not expressly prohibit state regulation of illegal aliens.
De Canas v. Bica (1976), the Court held 8-0 that a California law prohibiting employers from hiring illegal immigrants was not pre-empted by federal law. Justice William Brennan concluded that “the federal government’s supremacy over immigration is strictly limited to: (1) a determination of who should or should not be admitted into the country and (2) the conditions under which a legal entrant may remain.” In short, there is no “field pre-emption” of state laws dealing with aliens, nor is there an explicit statement from Congress pre-empting state regulation of aliens.
Because the Arizona law precisely coincides with federal immigration law, and because the Court has ruled “field pre-emption” does not apply to immigration, the Arizona law is therefore constitutional. The Arizona law would be unconstitutional if and only if it is a violation of federal law to enforce or uphold federal immigration law.
Friday, July 30, 2010
Free Speech and the 'Digital' Age
The 4th Circuit Court ruled that the posting of social security numbers (of government officials/constituents) on private websites is protected under the First Amendment, free speech. The case is best summarized in a recent Washington Post article:
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/28/AR2010072805887.html
http://www.washingtonpost.com/wp-dyn/content/article/2010/07/28/AR2010072805887.html
Monday, July 26, 2010
When Religion and Law Collide
Consider the the facts of a recent, controversial case:
The record reflects that plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old. The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant’s employment in this country as an accountant....
[Long discussion of the wife’s allegations of abuse, which included several instances of nonconsensual sex as well as other abuse, omitted for space reasons. –EV]
Upon their return to the apartment, defendant forced plaintiff to have sex with him while she cried. Plaintiff testified that defendant always told her
this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.
After having sex, defendant took plaintiff to a travel agency to buy a ticket for her return to Morocco. However the ticket was not purchased, and the couple returned to the apartment. Once there, defendant threatened divorce, but nonetheless again engaged in nonconsensual sex while plaintiff cried. Later that day, defendant and his mother took plaintiff to the home of the Imam and, in the presence of the Imam, his wife, and defendant’s mother, defendant verbally divorced plaintiff....
The judge found from his review of the evidence that plaintiff had proven by a preponderance of the evidence that defendant had engaged in harassment, pursuant to N.J.S.A. 2C:33-4b and c, and assault. He found that plaintiff had not proven criminal restraint, sexual assault or criminal sexual contact. In finding assault to have occurred, the judge credited, as essentially uncontradicted, plaintiff’s testimony regarding the events of November 1, 16 and 22, 2008. The judge based his findings of harassment on plaintiff’s “clear proof” of the nonconsensual sex occurring during the three days in November and on the events of the night of January 15 to 16. He did not credit plaintiff’s testimony of sexual assaults thereafter, since there was no corroboration in plaintiff’s complaints to the police. [Footnote: In response to an objection by plaintiff’s counsel, the judge later recognized that the police report upon which he relied in finding no corroboration for plaintiff’s claims had not been admitted in evidence because of its hearsay nature. However, he declined to modify his ruling.]
While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:
This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.
After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant’s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff’s contrary wishes.
Having found acts of domestic violence consisting of assault and harassment to have occurred, the judge turned to the issue of whether a final restraining order should be entered. He found such an order unnecessary, vacated the temporary restraints previously entered in the matter and dismissed plaintiff’s domestic violence action....
The appellate court reversed, writing (among other things):
Defendant’s conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.
As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken.
The appellate court remanded for entry of a restraining order. Note that the woman was pregnant with the couple’s child at the time of the initial hearing, so that despite the divorce it seemed likely that the man and the woman would remain in contact; this is legally relevant because restraining orders are designed to prevent future harm, not to punish for past misbehavior. The opinion is quite detailed both in its summary of the factual allegations and as to the legal analysis; those who are especially interested in the case may want to read it closely.
To any sensible person, what the defendant did to the plaintiff is fundamentally wrong and immoral. Still, the Court is only to adjudicate the law, not morality. So what does the law say? The U.S. Constitution ostensibly protects religious practices from government interference. If indeed, the defendant was acting within the bounds of the Muslim faith, would not any legal action taken against him be an infringement of the Constitution? Historically, the U.S. Supreme Court ruled that the use of 'peyote', a drug commonly used by Native Americans for religious ceremonial purposes, is illegal by U.S. law. At what point does the U.S. law supercede a religious practice? Polygamy for the LDS Church is yet another example.
The record reflects that plaintiff, S.D., and defendant, M.J.R., are citizens of Morocco and adherents to the Muslim faith. They were wed in Morocco in an arranged marriage on July 31, 2008, when plaintiff was seventeen years old. The parties did not know each other prior to the marriage. On August 29, 2008, they came to New Jersey as the result of defendant’s employment in this country as an accountant....
[Long discussion of the wife’s allegations of abuse, which included several instances of nonconsensual sex as well as other abuse, omitted for space reasons. –EV]
Upon their return to the apartment, defendant forced plaintiff to have sex with him while she cried. Plaintiff testified that defendant always told her
this is according to our religion. You are my wife, I c[an] do anything to you. The woman, she should submit and do anything I ask her to do.
After having sex, defendant took plaintiff to a travel agency to buy a ticket for her return to Morocco. However the ticket was not purchased, and the couple returned to the apartment. Once there, defendant threatened divorce, but nonetheless again engaged in nonconsensual sex while plaintiff cried. Later that day, defendant and his mother took plaintiff to the home of the Imam and, in the presence of the Imam, his wife, and defendant’s mother, defendant verbally divorced plaintiff....
The judge found from his review of the evidence that plaintiff had proven by a preponderance of the evidence that defendant had engaged in harassment, pursuant to N.J.S.A. 2C:33-4b and c, and assault. He found that plaintiff had not proven criminal restraint, sexual assault or criminal sexual contact. In finding assault to have occurred, the judge credited, as essentially uncontradicted, plaintiff’s testimony regarding the events of November 1, 16 and 22, 2008. The judge based his findings of harassment on plaintiff’s “clear proof” of the nonconsensual sex occurring during the three days in November and on the events of the night of January 15 to 16. He did not credit plaintiff’s testimony of sexual assaults thereafter, since there was no corroboration in plaintiff’s complaints to the police. [Footnote: In response to an objection by plaintiff’s counsel, the judge later recognized that the police report upon which he relied in finding no corroboration for plaintiff’s claims had not been admitted in evidence because of its hearsay nature. However, he declined to modify his ruling.]
While recognizing that defendant had engaged in sexual relations with plaintiff against her expressed wishes in November 2008 and on the night of January 15 to 16, 2009, the judge did not find sexual assault or criminal sexual conduct to have been proven. He stated:
This court does not feel that, under the circumstances, that this defendant had a criminal desire to or intent to sexually assault or to sexually contact the plaintiff when he did. The court believes that he was operating under his belief that it is, as the husband, his desire to have sex when and whether he wanted to, was something that was consistent with his practices and it was something that was not prohibited.
After acknowledging that this was a case in which religious custom clashed with the law, and that under the law, plaintiff had a right to refuse defendant’s advances, the judge found that defendant did not act with a criminal intent when he repeatedly insisted upon intercourse, despite plaintiff’s contrary wishes.
Having found acts of domestic violence consisting of assault and harassment to have occurred, the judge turned to the issue of whether a final restraining order should be entered. He found such an order unnecessary, vacated the temporary restraints previously entered in the matter and dismissed plaintiff’s domestic violence action....
The appellate court reversed, writing (among other things):
Defendant’s conduct in engaging in nonconsensual sexual intercourse was unquestionably knowing, regardless of his view that his religion permitted him to act as he did.
As the judge recognized, the case thus presents a conflict between the criminal law and religious precepts. In resolving this conflict, the judge determined to except defendant from the operation of the State’s statutes as the result of his religious beliefs. In doing so, the judge was mistaken.
The appellate court remanded for entry of a restraining order. Note that the woman was pregnant with the couple’s child at the time of the initial hearing, so that despite the divorce it seemed likely that the man and the woman would remain in contact; this is legally relevant because restraining orders are designed to prevent future harm, not to punish for past misbehavior. The opinion is quite detailed both in its summary of the factual allegations and as to the legal analysis; those who are especially interested in the case may want to read it closely.
To any sensible person, what the defendant did to the plaintiff is fundamentally wrong and immoral. Still, the Court is only to adjudicate the law, not morality. So what does the law say? The U.S. Constitution ostensibly protects religious practices from government interference. If indeed, the defendant was acting within the bounds of the Muslim faith, would not any legal action taken against him be an infringement of the Constitution? Historically, the U.S. Supreme Court ruled that the use of 'peyote', a drug commonly used by Native Americans for religious ceremonial purposes, is illegal by U.S. law. At what point does the U.S. law supercede a religious practice? Polygamy for the LDS Church is yet another example.
The Myth of White Privilege: A Lesson on History
Democratic U.S. Senator, James Webb, makes a compelling case for the end to affirmative action programs- read his Op-Ed in the Wall Street Journal:
Among others, Senator Webb's focus-points are:
1. Historically speaking, it is impossible to group all whites living in the U.S. into one large group. The journey for the white-American is so diverse that one strains to find logic in lumping them all together for the purpose of public policy.
2. Less than 5 percent of whites in the South owned slaves. Curiously enough, the South consisted of a three-tiered society; the white elites, the white peasants, and the African slaves. Comparatively, southern white peasants were disadvantaged to a large degree. Ought they not be recipients of some form of reparation?
Among others, Senator Webb's focus-points are:
1. Historically speaking, it is impossible to group all whites living in the U.S. into one large group. The journey for the white-American is so diverse that one strains to find logic in lumping them all together for the purpose of public policy.
2. Less than 5 percent of whites in the South owned slaves. Curiously enough, the South consisted of a three-tiered society; the white elites, the white peasants, and the African slaves. Comparatively, southern white peasants were disadvantaged to a large degree. Ought they not be recipients of some form of reparation?
Thursday, July 22, 2010
Rape By Fraud?
The Guardian (UK) reports:
A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.
Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left....
Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not “a classical rape by force,” the woman would not have consented if she had not believed Kashur was Jewish.
The sex therefore was obtained under false pretences, the judges said. “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” they added....
Segal said: “The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price — the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims — actual and potential — to protect their wellbeing. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price.”
Such “fraud in the inducement” would not suffice for a rape conviction under the law of most American states, though it’s an interesting question why it’s a crime to get money by fraud but not to get sex by fraud. There are good answers to that question, I think, but they’re not so obviously right as to keep the question from being interesting.
Cheating on One's Lover = Future Felony in Massachusetts?
That's what would happen under a proposed statute that's being promoted by Massachusetts state representative Peter Koutoujian, and is being supported by District Attorneys Joseph D. Early Jr. and Gerard Leone.
I suspect that this isn't the goal of the drafters, but that's what the language would call for, when (as I'm pretty sure happens quite often) the cheater has sex afterwards with the regular lover without disclosing the cheating. Here's what the proposed law says:
Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, 'fraud' or 'artifice' shall not be construed to mean a promise of future consideration.
The law was apparently proposed in response to some recent fraudulent-sex incidents, one in which a man had sex with his brother's near-sleeping girlfriend pretending to be his brother, and one in which a medical technician conducted an unnecessary pelvic exam (with his fingers, I think) after having pretended to the woman that it was necessary and that he was trained and licensed to perform such exams. But it goes much further than that: Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.
So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)
The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)
Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.
And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)
Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).
Ought there be a law against sex fraud? If so, what are the legal criterions?
A Palestinian man has been convicted of rape after having consensual sex with a woman who had believed him to be a fellow Jew.
Sabbar Kashur, 30, was sentenced to 18 months in prison on Monday after the court ruled that he was guilty of rape by deception. According to the complaint filed by the woman with the Jerusalem district court, the two met in downtown Jerusalem in September 2008 where Kashur, an Arab from East Jerusalem, introduced himself as a Jewish bachelor seeking a serious relationship. The two then had consensual sex in a nearby building before Kashur left....
Handing down the verdict, Tzvi Segal, one of three judges on the case, acknowledged that sex had been consensual but said that although not “a classical rape by force,” the woman would not have consented if she had not believed Kashur was Jewish.
The sex therefore was obtained under false pretences, the judges said. “If she hadn’t thought the accused was a Jewish bachelor interested in a serious romantic relationship, she would not have cooperated,” they added....
Segal said: “The court is obliged to protect the public interest from sophisticated, smooth-tongued criminals who can deceive innocent victims at an unbearable price — the sanctity of their bodies and souls. When the very basis of trust between human beings drops, especially when the matters at hand are so intimate, sensitive and fateful, the court is required to stand firmly at the side of the victims — actual and potential — to protect their wellbeing. Otherwise, they will be used, manipulated and misled, while paying only a tolerable and symbolic price.”
Such “fraud in the inducement” would not suffice for a rape conviction under the law of most American states, though it’s an interesting question why it’s a crime to get money by fraud but not to get sex by fraud. There are good answers to that question, I think, but they’re not so obviously right as to keep the question from being interesting.
Cheating on One's Lover = Future Felony in Massachusetts?
That's what would happen under a proposed statute that's being promoted by Massachusetts state representative Peter Koutoujian, and is being supported by District Attorneys Joseph D. Early Jr. and Gerard Leone.
I suspect that this isn't the goal of the drafters, but that's what the language would call for, when (as I'm pretty sure happens quite often) the cheater has sex afterwards with the regular lover without disclosing the cheating. Here's what the proposed law says:
Whoever has sexual intercourse or unnatural sexual intercourse with a person having obtained that person's consent by the use of fraud, concealment or artifice, and who thereby intentionally deceived such person so that a reasonable person would not have consented but for the deception, shall be punished by imprisonment in the state prison for life or any term of years. As used in this statute, 'fraud' or 'artifice' shall not be construed to mean a promise of future consideration.
The law was apparently proposed in response to some recent fraudulent-sex incidents, one in which a man had sex with his brother's near-sleeping girlfriend pretending to be his brother, and one in which a medical technician conducted an unnecessary pelvic exam (with his fingers, I think) after having pretended to the woman that it was necessary and that he was trained and licensed to perform such exams. But it goes much further than that: Any time someone has consensual sex (1) having gotten the consent through (a) lying or (b) concealment, and (2) a jury (or perhaps a judge) concludes that "a reasonable person would not have consented but for the deception," that's a felony, labeled as a form of rape. Promises ("I'll marry you") are excluded, but other statements — or silences — are not.
So let's see how it plays out in the cheating situation. Alan and Beth are lovers. Beth has sex with Carl. She doesn't tell Alan (or, if Alan confronts her about his suspicions, denies it — that doesn't matter for purposes of the law), but then has sex with Alan again. That, under the law, is rape, so long as the jury or judge concludes that a reasonable person wouldn't have consented to have sex again with his lover had he known that she had cheated on him. Naturally, the same would apply with married couples, but this isn't even just a revival of criminal punishment for adultery — there's no requirement of marriage. (Note of course this would apply regardless of the sex, or sexual orientation, of the partners.)
The same could of course arise in lots of other contexts. A woman conceals from a prospective lover the fact that she'd been a prostitute, or even had had a lot of sexual partners. When they have sex, under the proposed law the man will have been raped as a result — depending, of course, on whether the jury or judge decides that a reasonable person would care about a lover's past prostitution, or even a lover's past promiscuity. (Let's assume that she doesn't have any sexually transmitted disease; there are some narrow laws that mandate revealing STD's to prospective lovers, but those are indeed limited to revealing STD's and preventing the spread of disease. They certainly don't cover all things that a reasonable lover might consider in deciding whether to have sex.)
Likewise if a man (or a woman) gets sex by falsely saying "I love you" (as opposed to "I will always love you" or "I will marry you," which is excluded), again if a jury finds that a reasonable person would have considered this. Same if someone gets sex by lying about his or her wealth or his or her age.
And of course all this would require the case-by-case, jury-by-jury development of the Law of Reasonable Sexual Criteria, as Massachusetts courts have to decide whether a reasonable person would treat a sexual partner's poverty, age, promiscuity, infidelity, and other attributes as sexual deal-killers. (Would it matter, by the way, how appealing the other person otherwise is? Would the jury have to decide whether the "victim" would have had sex with the "rapist" in any event, because the victim was so infatuated, or because the rapist was so hot? "True, Angelina Jolie didn't tell the victim that she was still in a sexual relationship with Billy Bob Thornton, but a reasonable man would have had sex with Angelina Jolie no matter what he knew about her"?)
Just awful. I do think some kinds of sexual frauds could properly be criminalized, for instance if the defendant impersonated some other specific person whom the victim knew, or if the defendant lied about having a serious sexually transmitted disease (or even concealed such a disease), or if the defendant lied about whether certain sexual contact was necessary for medical purposes. But these would be narrow and precisely drafted laws, which would cover a small range of clearly highly reprehensible and unusual conduct, and would not cover behavior that is either proper protection of privacy (e.g., not revealing one's sexual history) or that is an extremely common human failing (e.g., cheating).
Ought there be a law against sex fraud? If so, what are the legal criterions?
Tuesday, July 20, 2010
Poor Whites Need Not Apply
When college admission officers celebrate campus diversity, you know they are talking first and foremost about race. More specifically, they are talking about blacks. A diverse college campus is understood to consist of 5-7 percent blacks (half the proportion of blacks in the general population). Any academic institution with lower figures is considered racist, mediocre, or politically incorrect, regardless of how demographically diverse its student body might be in other ways. The 5-7 percent black quota need not be American. In fact, an estimated 40-50 percent of those categorized as black are Afro-Caribbean or African immigrants.
Secondary to blacks in the quest for diversity are Hispanics. Along with blacks, Hispanics are classified as “underrepresented minorities”. Although Hispanics roughly make up the same percentage as blacks in the general population, meeting the black diversity goal is a much higher priority than the Hispanic one.
On the contrary, Asians receive no boost in admissions. In fact, college admission officers set an admission standard far higher than what is required for blacks and Hispanics. If all minority races do not equate to diversity on an equal level, two questions must be answered. First, what is diversity? If race is diversity, then one must ask; why does the treatment of one minority race differ from another when attempting to achieve “racial” diversity?
The debate over affirmative action policies began with the landmark Supreme Court Bakke case. While the Court rejected racial preferential policies (such as quotas), the Court deemed permissible a type of affirmative action policy, insomuch as such policies were backed by “a university’s legitimate concern for the educational benefits of a demographically diverse student body.” In short, competitive universities only needed to cloak their racial preferential policies’ true meaning and purpose behind misleading or dishonest rhetoric of “diversity”. Harvard Law Professor, Alan Dershowitz, accurately explains the situation: “The raison d’etre for race-specific affirmative action programs has simply never been diversity for the sake of education. The checkered history of ‘diversity’ demonstrates that it was designed largely as a cover to achieve other legally, morally, and politically controversial goals. In recent years, it has been invoked—especially in the professional schools—as a clever post facto justification for increasing the number of minority group students in the student body.”
Most elite universities seem to have little interest in diversifying their student bodies with born-again Christians, students from rural or small-town areas, people who have served in the military, farmers, Mormons, Jehovah Witnesses, working class “white ethnics”, social and political conservatives, or married students. Any rationally person will conclude that persons in the various categories listed above carry with them unique life-experiences and therefore will contribute to a diverse intellectual atmosphere. Students in these categories, however, are very rare at America’s elite universities.
The data of a study conducted by two Princeton scholars was gathered from eight highly competitive public and private universities. Data was collected on over 245,000 applicants from three separate application years, and over 9,000 enrolled students filled out extensive questionnaires. The results of the study are alarming. To have the same chances of gaining admission as a black student with an SAT score of 1100, an Hispanic student otherwise equally matched in background characteristics would have to have a 1230, a white student a 1410, and an Asian student a 1550. The study also carefully considered the question of “class-based preferences” (financial disparity). The study indicated a general disregard for improving the admission chances of poor and otherwise disadvantaged whites.
Distressing as many might consider this to be—since the same institutions that give no special consideration to poor white applicants boast about their commitment to “diversity” and give enormous admissions breaks to blacks, even to those from relatively affluent homes—the survey found the actual situation to be much more troubling. The lower-class whites proved to be all-around losers. When equally matched for background factors (including SAT scores and high school GPAs), the better-off whites were more than three times as likely to be accepted as the poorest whites. Having money in the familiy greatly improved a white applicant’s admissions chances, lack of money greatly reduced it. The opposite class trend was seen among non-whites, where the poorer the applicant the greater the probability of acceptance when all other factors are taken into account. Class-based affirmative action does exist within the three non-white ethno-racial groupings, but among the whites the groups advanced are those with money.
When lower-class whites are matched with lower-class blacks and other non-whites the degree of the non-white advantage becomes astronomical: lower-class Asian applicants are seven times as likely to be accepted to the competitive private institutions as similarly qualified whites, lower-class Hispanic applicants eight times as likely, and lower-class blacks ten times as likely.
Now, the question becomes: Why are poor whites not admitted? Simply put, colleges and universities are reluctant to admit students who cannot afford their high tuitions. And since they have a limited amount of money to give out for scholarship aid, they reserve this money to lure those who can be counted in their enrollment statistics as diversity-enhancing “racial minorities” (except Asians).
Still, why cannot well-qualified lower-class whites at least be offered admission without financial aid? The ugly truth is that most colleges, especially the most competitive ones, are fiercely concerned with their ratings by rating organizations like U.S. News and World Report. And an important part of those ratings consist of a numerical acceptance rate (the ratio of applicants received and those accepted) and a yield score (the ratio of those accepted to those who enroll). The lower the acceptance rate and the higher the yield score the more favorably colleges are looked upon. In extending admissions to well-qualified but financially strapped whites who are unlikely to enroll, a college would be driving both its acceptance rate and its yield score in the wrong direction. Lesson learned: colleges would do well to come clean with their act and admit the truth: “Poor Whites Need Not Apply!”.
Moreover, the study also proves ideological bias in the admission process. Every college admission officer would tell you that extracurricular activities improve an application. This is only true, however, if you are NOT a member of the Future Farmers of America, the ROTC, or any Christian organization. Excelling in these activities is associated with 60 to 65 percent lower odds of admission.
Military veterans and aspiring military officers, like poor whites and future American farmers, are clearly not what most competitive colleges have in mind when they speak of the need for “diversity”. This being the unfortunate case, elite colleges should get out of the diversity business altogether and focus on enrolling students who are the most academically talented and the most eager to learn. Let the diversity chips fall where they may and focus on recruiting the most intelligent, most creative, and most energetic of the rising generation of young people. In my naïve way this is what I always thought elite universities were supposed to be about.
I do not suggest an end to all affirmative action policies. I believe all invested in this debate see an overarching need to support educational opportunities for those from unfortunate circumstances. Nonetheless, I do propose that all affirmative action policies ought to be based on need, rather than skin color. It is true that minorities are economically disadvantaged. With a system based on "need", minorities (Asians included) will continue to be the recipients of affirmative action's choicest blessings. At the same time, lower-class whites will be afforded similar opportunities. Lets put an end to racial discrimination on all forefronts.
Secondary to blacks in the quest for diversity are Hispanics. Along with blacks, Hispanics are classified as “underrepresented minorities”. Although Hispanics roughly make up the same percentage as blacks in the general population, meeting the black diversity goal is a much higher priority than the Hispanic one.
On the contrary, Asians receive no boost in admissions. In fact, college admission officers set an admission standard far higher than what is required for blacks and Hispanics. If all minority races do not equate to diversity on an equal level, two questions must be answered. First, what is diversity? If race is diversity, then one must ask; why does the treatment of one minority race differ from another when attempting to achieve “racial” diversity?
The debate over affirmative action policies began with the landmark Supreme Court Bakke case. While the Court rejected racial preferential policies (such as quotas), the Court deemed permissible a type of affirmative action policy, insomuch as such policies were backed by “a university’s legitimate concern for the educational benefits of a demographically diverse student body.” In short, competitive universities only needed to cloak their racial preferential policies’ true meaning and purpose behind misleading or dishonest rhetoric of “diversity”. Harvard Law Professor, Alan Dershowitz, accurately explains the situation: “The raison d’etre for race-specific affirmative action programs has simply never been diversity for the sake of education. The checkered history of ‘diversity’ demonstrates that it was designed largely as a cover to achieve other legally, morally, and politically controversial goals. In recent years, it has been invoked—especially in the professional schools—as a clever post facto justification for increasing the number of minority group students in the student body.”
Most elite universities seem to have little interest in diversifying their student bodies with born-again Christians, students from rural or small-town areas, people who have served in the military, farmers, Mormons, Jehovah Witnesses, working class “white ethnics”, social and political conservatives, or married students. Any rationally person will conclude that persons in the various categories listed above carry with them unique life-experiences and therefore will contribute to a diverse intellectual atmosphere. Students in these categories, however, are very rare at America’s elite universities.
The data of a study conducted by two Princeton scholars was gathered from eight highly competitive public and private universities. Data was collected on over 245,000 applicants from three separate application years, and over 9,000 enrolled students filled out extensive questionnaires. The results of the study are alarming. To have the same chances of gaining admission as a black student with an SAT score of 1100, an Hispanic student otherwise equally matched in background characteristics would have to have a 1230, a white student a 1410, and an Asian student a 1550. The study also carefully considered the question of “class-based preferences” (financial disparity). The study indicated a general disregard for improving the admission chances of poor and otherwise disadvantaged whites.
Distressing as many might consider this to be—since the same institutions that give no special consideration to poor white applicants boast about their commitment to “diversity” and give enormous admissions breaks to blacks, even to those from relatively affluent homes—the survey found the actual situation to be much more troubling. The lower-class whites proved to be all-around losers. When equally matched for background factors (including SAT scores and high school GPAs), the better-off whites were more than three times as likely to be accepted as the poorest whites. Having money in the familiy greatly improved a white applicant’s admissions chances, lack of money greatly reduced it. The opposite class trend was seen among non-whites, where the poorer the applicant the greater the probability of acceptance when all other factors are taken into account. Class-based affirmative action does exist within the three non-white ethno-racial groupings, but among the whites the groups advanced are those with money.
When lower-class whites are matched with lower-class blacks and other non-whites the degree of the non-white advantage becomes astronomical: lower-class Asian applicants are seven times as likely to be accepted to the competitive private institutions as similarly qualified whites, lower-class Hispanic applicants eight times as likely, and lower-class blacks ten times as likely.
Now, the question becomes: Why are poor whites not admitted? Simply put, colleges and universities are reluctant to admit students who cannot afford their high tuitions. And since they have a limited amount of money to give out for scholarship aid, they reserve this money to lure those who can be counted in their enrollment statistics as diversity-enhancing “racial minorities” (except Asians).
Still, why cannot well-qualified lower-class whites at least be offered admission without financial aid? The ugly truth is that most colleges, especially the most competitive ones, are fiercely concerned with their ratings by rating organizations like U.S. News and World Report. And an important part of those ratings consist of a numerical acceptance rate (the ratio of applicants received and those accepted) and a yield score (the ratio of those accepted to those who enroll). The lower the acceptance rate and the higher the yield score the more favorably colleges are looked upon. In extending admissions to well-qualified but financially strapped whites who are unlikely to enroll, a college would be driving both its acceptance rate and its yield score in the wrong direction. Lesson learned: colleges would do well to come clean with their act and admit the truth: “Poor Whites Need Not Apply!”.
Moreover, the study also proves ideological bias in the admission process. Every college admission officer would tell you that extracurricular activities improve an application. This is only true, however, if you are NOT a member of the Future Farmers of America, the ROTC, or any Christian organization. Excelling in these activities is associated with 60 to 65 percent lower odds of admission.
Military veterans and aspiring military officers, like poor whites and future American farmers, are clearly not what most competitive colleges have in mind when they speak of the need for “diversity”. This being the unfortunate case, elite colleges should get out of the diversity business altogether and focus on enrolling students who are the most academically talented and the most eager to learn. Let the diversity chips fall where they may and focus on recruiting the most intelligent, most creative, and most energetic of the rising generation of young people. In my naïve way this is what I always thought elite universities were supposed to be about.
I do not suggest an end to all affirmative action policies. I believe all invested in this debate see an overarching need to support educational opportunities for those from unfortunate circumstances. Nonetheless, I do propose that all affirmative action policies ought to be based on need, rather than skin color. It is true that minorities are economically disadvantaged. With a system based on "need", minorities (Asians included) will continue to be the recipients of affirmative action's choicest blessings. At the same time, lower-class whites will be afforded similar opportunities. Lets put an end to racial discrimination on all forefronts.
Supreme Court Throws Christian Students to the Lions
While the media focused a good deal of attention on Elena Kagan’s vapid and hollow charade confirmation hearing, the nine current Supreme Court Justices finished another term. The Court’s decision in McDonald v. Chicago was a victory for all those who can read the Second Amendment, however, its decision in Christian Legal Society v. Martinez struck a major blow to First Amendment advocates everywhere.
A small group of Hastings College of Law students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. Under a CLS resolution, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership. Hastings’ refused to give CLS student group official recognition, claiming CLS violated a non-discrimination policy.
The issue before the Court, according to the Hastings’s CLS group was,
“[w]hether the Constitution permits a public university law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments.”
Hastings’ administrators saw a chance to boot the Christians from their ranks and they took it.
In a 5 to 4 decision, the Supreme Court’s liberal bloc – with Justice Anthony Kennedy providing the swing vote – cast Christian students to the lion’s den.
The Court ruled that Hastings College of Law (part of the University of California system) did not violate the Christian Legal Society’s (CLS) First Amendment rights when it refused the student group official recognition.
The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” According to the resolution, a “sexually immoral lifestyle” specifically includes engaging in acts of sexual conduct outside of a traditional, man-woman marriage. It was shortly after the resolution was passed that the Hastings chapter of CLS applied for student-group recognition.
Progressive school administrators saw a chance to boot the Christians from their ranks, they took it. As a pretext to discriminate against Christians, Hastings changed its non-discrimination policy three separate times to deny CLS’s recognition. In fact, the record before the Court was so replete with evidence that the law school administrators specifically targeted the CLS group, Justice Alito even remarked, “[i]f the record here is not sufficient to permit a finding of pretext, then the law of pretext is dead.”
It is the very same mentality, one of systematically removing any obstacle to the implementation of a progressive social agenda on America’s campuses, that led Elena Kagan and other law school deans to restrict military recruiters on campus and this subsequent banishment of Christian student groups.
The Hasting CLS students used the protections of the U.S. Constitution to sue the school claiming their freedoms of religion and expressive association had been violated. The case fell upon the deaf ears of the notoriously progressive Ninth Circuit, which sided with the school in a two-sentence opinion.
The Christian students appealed, and the Supreme Court granted certiorari December 7, 2009.
According to the majority, the Constitution forbids a right to association; that is, a right for Christians to associate with other Christians.
Justice Ruth-Bader Ginsburg, writing for the majority, expressed concern for modern political correctness over the freedoms of religion and expressive association.
In his dissent, Justice Alito took a rather harsh tone with majority opinion. He wrote,
“[t]he proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” (Internal citations omitted).
How dare the Christian Legal Society seek to be comprised of Christians!
In ruling against the CLS students, the Court not only turned the Constitution on its head, the Court also went, in-part, against its own precedent. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court found that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association.”
Justice Ginsburg’s opinion opened a Pandora’s box for every opposing campus group to drown out groups they find distasteful. Justice Alito explained that the decision provides “a handy weapon for suppressing the free speech of unpopular groups.”
Take for example a campus where Republicans largely out number Democrats. There is nothing to stop the Republicans from taking over the campus Democrats and silencing liberal voices.
The possibilities are endless.
The decision forces campus groups to admit members who are openly hostile to a group’s position. Imagine an atheist group taking over a Christian group, a Muslim group taking over a Jewish group, the cat club taking overt the dog club. Justice Ginsberg dismissed this slippery slope argument as “more hypothetical than real.”
In the past few years, some Muslim groups have sought to silence Jewish voices in American schools. Just recently the University of California-Irvine recommended the suspension of a Muslim student group for disrupting an Israeli ambassadors speech.
Law schools should be a forum for healthy, open, and honest debate. The forum becomes muddled when administrators, liberal or conservative, attempt to limit freedom of speech.
A small group of Hastings College of Law students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. Under a CLS resolution, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership. Hastings’ refused to give CLS student group official recognition, claiming CLS violated a non-discrimination policy.
The issue before the Court, according to the Hastings’s CLS group was,
“[w]hether the Constitution permits a public university law school to exclude a religious student organization from a forum for speech solely because the group requires its officers and voting members to share its core religious commitments.”
Hastings’ administrators saw a chance to boot the Christians from their ranks and they took it.
In a 5 to 4 decision, the Supreme Court’s liberal bloc – with Justice Anthony Kennedy providing the swing vote – cast Christian students to the lion’s den.
The Court ruled that Hastings College of Law (part of the University of California system) did not violate the Christian Legal Society’s (CLS) First Amendment rights when it refused the student group official recognition.
The events that gave rise to this litigation began in 2004, when a small group of Hastings students sought to register a Hastings chapter of CLS, a national organization of Christian lawyers and law students. All CLS members must sign a Statement of Faith affirming belief in fundamental Christian doctrines. In early 2004, the national organization adopted a resolution stating that “[i]n view of the clear dictates of Scripture, unrepentant participation in or advocacy of a sexually immoral lifestyle is inconsistent with an affirmation of the Statement of Faith, and consequently may be regarded by CLS as disqualifying such an individual from CLS membership.” According to the resolution, a “sexually immoral lifestyle” specifically includes engaging in acts of sexual conduct outside of a traditional, man-woman marriage. It was shortly after the resolution was passed that the Hastings chapter of CLS applied for student-group recognition.
Progressive school administrators saw a chance to boot the Christians from their ranks, they took it. As a pretext to discriminate against Christians, Hastings changed its non-discrimination policy three separate times to deny CLS’s recognition. In fact, the record before the Court was so replete with evidence that the law school administrators specifically targeted the CLS group, Justice Alito even remarked, “[i]f the record here is not sufficient to permit a finding of pretext, then the law of pretext is dead.”
It is the very same mentality, one of systematically removing any obstacle to the implementation of a progressive social agenda on America’s campuses, that led Elena Kagan and other law school deans to restrict military recruiters on campus and this subsequent banishment of Christian student groups.
The Hasting CLS students used the protections of the U.S. Constitution to sue the school claiming their freedoms of religion and expressive association had been violated. The case fell upon the deaf ears of the notoriously progressive Ninth Circuit, which sided with the school in a two-sentence opinion.
The Christian students appealed, and the Supreme Court granted certiorari December 7, 2009.
According to the majority, the Constitution forbids a right to association; that is, a right for Christians to associate with other Christians.
Justice Ruth-Bader Ginsburg, writing for the majority, expressed concern for modern political correctness over the freedoms of religion and expressive association.
In his dissent, Justice Alito took a rather harsh tone with majority opinion. He wrote,
“[t]he proudest boast of our free speech jurisprudence is that we protect the freedom to express “the thought that we hate.” Today’s decision rests on a very different principle: no freedom for expression that offends prevailing standards of political correctness in our country’s institutions of higher learning.” (Internal citations omitted).
How dare the Christian Legal Society seek to be comprised of Christians!
In ruling against the CLS students, the Court not only turned the Constitution on its head, the Court also went, in-part, against its own precedent. In Boy Scouts of America v. Dale, 530 U.S. 640 (2000), the Court found that “[t]he forced inclusion of an unwanted person in a group infringes the group’s freedom of expressive association.”
Justice Ginsburg’s opinion opened a Pandora’s box for every opposing campus group to drown out groups they find distasteful. Justice Alito explained that the decision provides “a handy weapon for suppressing the free speech of unpopular groups.”
Take for example a campus where Republicans largely out number Democrats. There is nothing to stop the Republicans from taking over the campus Democrats and silencing liberal voices.
The possibilities are endless.
The decision forces campus groups to admit members who are openly hostile to a group’s position. Imagine an atheist group taking over a Christian group, a Muslim group taking over a Jewish group, the cat club taking overt the dog club. Justice Ginsberg dismissed this slippery slope argument as “more hypothetical than real.”
In the past few years, some Muslim groups have sought to silence Jewish voices in American schools. Just recently the University of California-Irvine recommended the suspension of a Muslim student group for disrupting an Israeli ambassadors speech.
Law schools should be a forum for healthy, open, and honest debate. The forum becomes muddled when administrators, liberal or conservative, attempt to limit freedom of speech.
Subscribe to:
Posts (Atom)