Human Rights at Home Blog

New Article: Colonizing Queerness

Jeremiah Ho, Colonizing Queerness, University of Colorado Law Review (forthcoming 2023). Abstract below.

This Article investigates how and why the cultural script of inequality persists for queer identities despite major legal advancements such as marriage, anti-discrimination, and employment protections. By regarding LGBTQ legal advancements as part of the American settler colonial project, I conclude that such victories are not liberatory or empowering but are attempts at colonizing queer identities. American settler colonialism’s structural promotion of a normative sexuality illustrates how our settler colonialist legacy is not just a race project (as settler colonialism is most widely studied) but also a race-gender-sexuality project. Even in apparent strokes of progress, American settler colonialism’s eliminationist motives continually privilege white heteropatriarchal structures that dominate over non-normative sexualities.

Through covert demands upon queer identities to assimilate with the status quo, such settler colonialist motivations are visible in the way Supreme Court gay rights advancements have facilitated a conditional but normative path to mainstream citizenship for queer identities. By employing concepts from critical race theory, queer studies, and settler colonial theory, this Article illuminates on how the Court’s cases are indeed part of American settler colonialism’s sexuality project and answers why such legal advancements always appear monumental, but ultimately remain in the control of a discriminatory status quo. Only if queer legal advancements are accompanied by essential shifts from the normative structures of white settler heteropatriarchy will such victories live up to their liberatory claims. Otherwise, such apparent progress will continually attempt to marginalize—indeed, colonize—queerness.

Florida’s “Don’t Say Gay” Bill and Conditional Progress

By Co-Editor Prof. Jeremiah A. Ho | 何嘉霖 | 副教授

In the very first episode of Netflix’s House of Cards, when the upstart journalist Zoe Barnes, played by Kate Mara, guesses correctly that the new presidential administration’s first legislative agenda was an education bill, she succinctly reasons that it’s because “Everyone can get behind children.”

On the surface, standing behind children is the motivation behind the passage of Florida’s recent “Parental Rights in Education” Bill (House Bill 1557)—or more colloquially-dubbed, “Don’t Say Gay” Bill. As many have noted, the bill is not written clearly. Here, I’ll summarize a few key things that it tries to accomplish:

• Limits on teaching gender and sexuality in all grades
• Parental notification when children receive services covering mental, emotional, or physical health with exceptions for circumstances where school officials believe a risk of abuse, abandonment, and neglect exists
• Opt-out option that allows parents to pull their children from counseling and health service
• Legal recourse for parents if schools violate House Bill 1557

The Florida state legislature passed the bill a few weeks ago and Governor Ron DeSantis is expected to sign the bill into law. In its passage, however, genuine protection of children is not really the intent behind the bill. But it’s rather animus against LGBTQ+ people and their lived experiences, and protectionism of a discriminatory heteropatriarchal status quo.

We’ve been down this road before. Such anti-gay curriculum laws or “No Promo Homo” laws aren’t new. This is not the first time that legislatures have doubled-down on education to erase or stigmatize queer youth and identities. There’s also a likely connection here to the flurry of anti-CRT legislation that caught traction in state houses nationwide recently. Analyzing these legislations separately is probably less resonate and effective than seeing these efforts as closely-twined to one structural offense—one massive race-gender-sexuality project of our settler colonial condition: white heteropatriarchy.

The other observation I have here is the cognitive dissonance that seems to appear with this bill in an era that is supposedly more gay-friendly than ever before. But a closer scrutiny would show us that the mainstream’s “gay-friendliness” is conditional. So there is no true dissonance here. Yes, queer and trans people have some extraordinary visibility these days and enjoy some great legal recognition in their lives and relationships. Last weekend, as I showed some out-of-town friends the bohemian spectacle of Venice Beach in Southern California, we kept seeing same-sex couples holding hands as they strolled down the boardwalk—something I doubt I would have seen 20 years ago, even in blue-state California. But such progress has qualifications. One most glaring shortfall is how many of the major LGBTQ+ advancements in recent years have obtained legal recognition and protections for queer identities without more substantial normative follow-through. Professor Kathrine Franke’s criticism of Lawrence v. Texas as “domesticated liberty” comes to mind as an example. While Lawrence decriminalized same-sex intimacy, the Supreme Court’s 2003 ruling brought queer sex into a sanitized, domesticated sphere that resembled more stereotypically “conventional” heteronormative relationships. The recent 2020 Title VII decision, Bostock v. Clayton County, that brought SOGI employment protections under Title VII’s “because of sex” category is another example of what I mean. The ruling created SOGI protections simply through Justice Gorsuch’s textualist reading of “because of sex.” However, the decision lacked any frank discussions that would externalize the values of inclusiveness or would unveil the harms placed upon marginalizing queer lived experiences in the workplace. It obtained employment protections for LGBTQ+ people without discussing LGBTQ+ queer lived experiences. Bostock “didn’t say gay” in that sense. That silence in Bostock, like Lawrence’s “domesticated liberty,” serves—even if unintentionally—to preserve the norms of a heteropatriarchal status quo. Thus, queer visibility and progress are limited and conditioned on establishment terms.   

Conditional progress is why Florida’s “Don’t Say Gay” Bill and the new wedding vendor case (303 Creative LLC v. Elenis) being heard next term at the Supreme Court both appear to me as déjà vu. We’ve been down this road before (and before). Progress is on the status quo’s terms. The conversation is being controlled from there. 

A lot of critical discussion has been raised about the harms and legalities of Florida’s “Don’t Say Gay” Bill. Such harms and legalities are both funneled into the bill’s vagueness on key operative terms and how the bill would be interpreted in practice. For instance, inconsistencies with the bill’s scope between its preamble and text poses much confusion. The preamble states that the goal of the bill is to preclude “classroom discussion about sexual orientation or gender identity.” Yet, the text of the bill provides that “classroom instruction by school personnel or third parties on sexual orientation or gender identity may not occur.” Would it put a schoolteacher in a same-sex marriage in violation with the bill if he were to accidentally reveal the gender of his spouse in a classroom conversation? Ian Millhauser poses answers to this hypothetical in his article at Vox (https://www.vox.com/2022/3/15/22976868/dont-say-gay-florida-unconstitutional-ron-desantis-supreme-court-first-amendment-schools-parents). And would such vagueness pass constitutionally muster? Millhauser says not likely. But aside from these practical and legal considerations, the design of this proposed law is clear and unwavering. The bill prolongs mainstream debate about the lives of queer and trans people while simultaneously bullying, marginalizing, and silencing them. It reveals that our recent legal advancements have not gone far enough—and may never go far enough—so long as the norms of heteropatriarchy are not simultaneously challenged when these advances occur. That might be a tall order for legal strategists. But without it, we will continue to go down the same roads over and over again.

Queering Bostock

Editor's Note:   Prof. Jeremiah Ho. has a new article addressing Bostock v Clayton County, Georgia.  Prof. Ho examines the limitations of the opinion, including the opinion's design to maintain the status quo for members of the LGBT+ community and those who benefit from the current social structure.  The article, Queering Bostock, is to be published imminently in the American University Journal of Gender, Social Policy & the Law, Vol. 29, No. 3, 2021.  Queering Bostock is available on SSRN.  

Below is the abstract:

Although the Supreme Court’s 2020 Title VII decision, Bostock v. Clayton County, Georgia, is a victory for LGBTQ individuals, its doctrinal limitations unavoidably preserve a discriminatory status quo. This Article critically examines how and why Bostock fails to highlight the indignities experienced by queer minorities under decades of employment discrimination. In Bostock, Justice Gorsuch presents a sweeping textualist interpretation of Title VII that protects against sexual orientation and gender identity discrimination. Yet, the decision sparsely recognizes queer lived experiences, compared to prior pro-LGBTQ cases where such recognition contributed to developing an anti-stereotyping framework that confronted some of the heteronormative biases that invigorate discrimination against queer individuals. In contrast, Bostock avoids any meaningful acknowledgment of the lives of the litigants or the experiences of anti-queer bias in exchange for a lengthy illumination of Justice Gorsuch’s textualist rationale.

When conceptions of sexuality and gender identity have been previously mischaracterized in favor of mainstream heteronormative values, the lived experiences of queerness are paramount for detecting discrimination and correcting it. This Article argues that Bostock’s neglect of queer lived experiences was not a forgivable oversight, merely collateral to its expansive textualist reading of Title VII. Rather, the neglect of lived experiences and anti-stereotyping frameworks was the price queer minorities had to pay for Title VII protection. In this way, this Article shows that Justice Gorsuch’s lack of regard for the lived experiences in Bostock tacitly privileges heteronormative values, underscores the status quo’s interest convergence, and ultimately limits the decision’s transformative appeal.

Seen and Heard Beyond The Covid-19 Hate Crimes Act

By Jeremiah A. Ho | 何嘉霖 | 副教授

In one of my last Zoom office hours session following this pandemic year of teaching, a Korean-American student in my contracts course signed off by giving me a warning wrapped in sincere advice—and it wasn’t about being safe from Covid during this part of the pandemic. “Professor,” she said after we were done discussing how to calculate expectation damages, “When you go outside this summer, will you please remember to carry some pepper spray with you?”

I had been expecting to wish her a safe and happy summer after her finals.  Instead, she was reminding me to defend myself from an anti-Asian attack in public.  The irony that this exchange came about during Asian American Pacific Islander Heritage Month doesn’t escape me.  In a previous year, I suspect we might have been less pensive. 

Last week—while again during the same AAPI Heritage Month—Congress and the White House cleared through the Covid-19 Hate Crimes Act.  The Act was a direct response to the rise in anti-AAPI hate incidents in the last year.  As President Biden signed the bill into law, he remarked: “My message to all of those who are hurting is:  We see you and the Congress has said, we see you.  And we are committed to stop the hatred and the bias.”

In substance, the Act itself reflects a lot of what has gotten us to this point over the last year.  In its Findings section, Congress acknowledges the statistical increase in anti-AAPI hate crimes and violence perpetrated against AAPI individuals since the start of the last year’s pandemic.  It also recognizes that one of the most vulnerable segments toward racial violence and bias has been the elderly members of the AAPI community—those who are the least able to socially and political integrate into American society because of immigrant status and language barriers.  And by listing the incident itself and the names of all victims, the Act also recalls the recent Georgia shootings that resulted in the death of six women of Asian descent. 

The Act doesn’t change the nature of identifying or prosecuting hate crimes.  But in operation the Act tries to do several things.  First, it sets up more resources for law enforcement, including the DOJ, for addressing reported incidents of hate.  Secondly, it also funds educational programs for law enforcement to better recognize hate crimes and better systems for reporting hate crimes.

In essence, the Act tries to address two issues that AAPI organizations have highlighted with anti-Asian hate incidents in the last year—that such incidents are often underreported or never reported when they happen and also law enforcement agencies have a hard time classifying such incidents as hate crimes. 

Is the Covid-19 Hate Crimes Act the proverbial pepper spray that AAPI individuals can now carry in their pockets to rely on against incidents of hate?  Probably not.  The Act embodies a lot of good, but it also has its limits.  But those limits may reflect the constraints of law and our legal system, rather than the swift legislative actions of certain AAPI members of Congress.  We can’t overstate what our laws can do.  That will just make us bitter about the legislative process—and legisprudence—as a means of change.  And in this last year, there’s already been a lot to be bitter about.  So, I’d stress not to think that way.

Instead, I look at the Act optimistically because it is a moment for the AAPI community to be seen and heard.  But I accept its limitations as well and use them as motivation to continue to be seen and heard—and much of being seen and heard in the wake of the Act’s signing cannot merely involve legislation alone. 

We need to address the underlying ways AAPI individuals are perceived by American society—false narratives and stereotypes that have led so easily to the scapegoating of folks who look like my student and me during this pandemic.  Otherwise, the end goals of efforts that got us the Covid-19 Hate Crimes Act will be short lived.  Just as laws and norms go together, so do changes in law and norms as well.  Progress on societal issues may seem hollow or short-lived if they happen by fiat without underlying shifts in norms and values that gird those societal issues originally. 

Recently, on a Vox podcast featuring Olivia Laing on her new book on bodies and political autonomy, she laments that in terms of reproductive rights, the conversation that occurred around the right to abortion that surfaced in the last century seems to have continually resurfaced to stunt prior legal progress—or in my view, even threatening that progress given some developments at the Supreme Court and in Texas in the last few days.  Some of this is likely attributed to existing misogyny and gender oppression that was never completely dealt with after Roe.   

Similarly, when Jonathan Metzl writes about gun control, he has pointed out that despite legal efforts to curb gun violence, the underlying ideas about gun ownership—such as how ownership plays into and reifies a sense of racial identity and American masculinity—cannot be ignored when we address societal changes on that topic. 

In his Prejudicial Appearances: The Logic of American Antidiscrimination Law, Professor Robert Post posits on a similar faithful overreliance on the judicial system to address inequality, stating that there’s a certain “logic” in post-World War II liberal thinking that “has led judges to craft legal rules as though antidiscrimination law could liberate individuals from the thrall of social ‘stereotypes,’ when in fact that law can intervene instead only to reshape the nature and content of social stereotypes.”  As someone who writes about anti-stereotyping theory in law, I always read this passage to remind myself what else beyond law can be used to address stereotypes and normative values—because whether I agree with Post or not about law’s anti-stereotyping potential, he is right to point out that the law has limits when it comes to advancing justice and equality. 

The Covid-19 Hate Crimes Act is a necessary step, but in order for individuals in the AAPI community to be seen and heard effectively—to not avoid being stereotyped—we also need our lived experiences to be actively and authentically reproduced, sincerely internalized by the American public, and finally understood with respect and dignity.  Lived experiences matter for challenging existing norms that marginalize individuals and groups in this society. This sentiment is especially so when AAPI individuals have been marginalized in ways that flatten their diversity and humanity—as model minorities, perpetual foreigners, or white-adjacent and invisible people.  Education ought not just be for law enforcement to better address or hear about hate crimes.  Education must extend to the rest of the public to understand how AAPIs live, move, and are constrained within this society.  One great example that I recently came across involves AAPI dance artists and choreographers who are trying to get major ballet companies to eliminate offensive representations in ballet productions.  We need to be seen and heard beyond the Covid-19 Hate Crimes Act.  I hope we claim this time and opportunity to do so.   

So, to that end, I urge readers here to get to know or even get involved in AAPI organizations.  I list two here:

• StopAAPI Hate: https://stopaapihate.org/
• AAAJ (Asian Americans Advancing Justice): https://www.advancingjustice-aajc.org/.

Or to become familiar with AAPI issues, visit resources or events available from the UCLA Asian American Studies Center:  http://www.aasc.ucla.edu/events/default.aspx.

For summer reading lists, one recent non-fiction book on AAPI experiences that I’d recommend is Cathy Hong Park’s Minor Feelings (2020): http://www.cathyparkhong.com/.  One recent work of fiction is Charles Yu’s Interior Chinatown (2020): https://www.charlesyuauthor.com/.  

And lastly, one resource for all of us to become more empowered allies for each other is the free bystander training at Hollaback!:  https://www.ihollaback.org/.

Let’s make sure that Asian American Pacific Islanders matter beyond the month of May. Pepper spray or not, let’s take care of ourselves and each other as we move back into public spaces and back into the world.   

The Language Barriers to Overcoming Anti-Asian Bias

By Jeremiah Ho

My first “formal” lesson about American racism was in the second grade when Ms. Wildermuth taught us about the life and death of Martin Luther King, Jr. in tandem with his birthday holiday.  This was January 1984, a little over a year after my family and I had immigrated to Orange County, California from Taipei, Taiwan.  My fluency in English was deepening.  After a year in ESL, I was more frequently forming my thoughts in English (thus, abandoning my thinking in Mandarin) and often called upon at school to interpret for my older cousins who had also just moved to the U.S. and attended the same elementary school.  In Ms. Wildermuth’s classroom, I sat next to Melanie, the only African-American girl in our class.  As we listened to Ms. Wildermuth trace Dr. King’s heroism to the history of enslaved peoples and followed along with the lesson packet that she had given us, I had a strangely comforting thought that perhaps this hatred and prejudice that white people held against outsiders were exclusively directed toward African-Americans and that perhaps people like me were spared because we weren’t Black.  I hoped that this were true.  It seemed logical—after all, Ms. Wildermuth’s lesson about American racial prejudice didn’t mention any Chinese people.  I’m sorry, Melanie, I thought turning to her on my left.  Tag, and you’re it.

This idea, of course, was naïve thinking.  Separate from this formal lesson on racism, I had already garnered a few informal ones so far in my short time here.  In the prior year, during those early months of first grade, when I had to guess what schoolteachers were saying to me and when simple words in the English language were still escapable, had I not been made to feel like an outsider?  The first time classmates used their index fingers to pull up their eyes at me, I had no clue of their intentions.  But by the third or the fourth time, when I realized the gesture was to mark me as different and foreign, a feeling of threat and loneliness then calcified.   In response, wasn’t that why had I suddenly taken up an American first name and insisted that everyone from the school-bus driver to the cafeteria ladies stop calling me by the phonetically-translated Chinese name on my official documents?  Wasn’t that the reason why I consciously imitated the way the American kids spoke English so that I could flatten out my accent?  Wasn’t that exactly why I was thinking in English so that perhaps American was something I could become?   Didn’t these incidents also amount to lessons on racism—however informal, and self-taught?

That night, not only did I relay to my parents what we had learned about MLK, Jr. but also my thoughts that we were safe because we weren’t Black.  I assumed I was delivering good news, in the way I had, as the interpreter in the family, been able to sometimes unlock confusion.  Perhaps this was a moment I could translate America for my parents, give them a lesson for once.  Because they were definitely foreigners compared to me and my burgeoning assimilation.  To my surprise, my parents rejected my logic.  They chuckled nervously and then the weighted seriousness in their voices relayed how far I had misperceived the entire predicament of racialized America.  White people can still hate us because we are outsiders to them, they said.  Let us tell you about the story of a Chinese man in Detroit who was beaten to death by some Americans who hated Japanese people and had mistaken him for being Japanese.  This was the recent story of Vincent Chin—my second lesson of the same day about another person who was killed for what the color of their skin signified.  The feelings of safety that had trailed me home after school were suddenly swept gone.  “So just keep your head down,” my father concluded with a solution, a verbal, solemn pat on my head.  My mother, the usually more feisty parent, disagreed at first but eventually thought pacifying was best.  “Just make sure you tell us if someone treats you badly.”

I never did, nor would.  A few weeks later when an older white boy at school insisted that I ate cats and should go back home to China, I pretended not to understand what he had said—even though I probably had the exact English words to tell him that China was really not my home.  Instead, I pretended not to comprehend.  English, after all, was just my second language.  I was only starting to learn it.

Because representations of Asian-American and Pacific Islanders are so scant in popular culture and media, I always notice and fixate when there’s an Asian character in film or television or when news items focus on Asian-American experiences in some way.  (I do this similarly with queer representations too.)  In the last several weeks, I’ve never seen more media and cultural focus on the AAPI community.  And I’ve been consuming as much of it as I can find—reading, watching, listening between my online Zoom classes for my law school and office hours; while waiting for responses to an article submission on Scholastica; between conference calls with colleagues during this socially-distanced time.  It’s profoundly sad, however, that all of the focus stem not from something positive, but from, first, the horrific shooting at three Asian-owned Atlanta spas by 21-year old Robert Aaron Long, and then more broadly, from the 149% rise in hate incidents against AAPI individuals since the pandemic started.  Now it’s the continuing incidents of anti-Asian violence being reported on the news.  This week, the video from Manhattan of sixty-five year-old, Vilma Kari, who was beaten outside a luxury apartment complex while the complex’s security guards and workers ignoring the whole situation is just another example of this alarming trend. 

On the whole, two-thirds of such hate incidents have occurred against women of Asian descent.  Many have connected both the Atlanta shootings, in which 6 of the 8 victims were Asian-American women, and this rising trend of hate and violence directly to the Asian scapegoating and spreading of anti-Asian sentiments during the pandemic—particularly the racist “China-virus” rhetoric widely perpetuated by Donald Trump and his supporters.  Two weeks ago, Asian-American congressional legislators reignited urgency to pass the COVID-19 Hate Crimes Act, and the House held a three-hour hearing on anti-Asian hate and xenophobia, the first time for such a hearing in decades.  Yesterday, the White House revealed a half-dozen new actions to respond to these increasing recent attacks and harassment on AAPI individuals and communities.  Protests and demonstrates have taken place across the country.  It’s been incredibly profound to witness all of this.  In thinking about the recent shootings more specifically, I know that Atlanta, Georgia is thousands of miles away from where I am currently in Southern California, but the Asian-American experience is also one that tracks across coasts and connects my family’s lived experiences with these incidents in some broader historical context.  We metabolize media news so quickly these days, but for one moment, it seems like we are lingering to acknowledge that the lived experiences of Asian-Americans matter.       

My hope is that the loved ones and families of the 8 victims in Atlanta will find healing and peace.  And for the sake of the victims’ memories, I also hope that the incident is ultimately understood as being more complex than the reverberations of someone’s “bad day” and that the cultural scapegoating we place on people of color are called out for its deadly perniciousness.  The racist rhetoric disseminated during this pandemic and the sexualization of Asian women are both part of the same systemic, marginalizing stroke that the dominant status quo, motivated by white supremacy, has exerted continually against Asian-Americans to “other” us—to keep us wearing the perpetual foreigner hat on our heads.  In response, we Asian-Americans have often resorted to “keeping our heads down” and being model citizens, so that they can’t get us or maybe they’ll move onto someone else.  Out of caution, we let the racial narrative take its Black-versus-white binary and stay out of harm’s way.  Or else, tag, you’re it.  The easiest thing is to pick up an Anglo first name; it’s admittedly harder to lose the accent, but not impossible if you try.  You just have to have an ear for it.  And when they do go after you, just be quiet.  Pretend you didn’t hear them; pretend English is a foreign language.  Feign ignorance.  But know that if you force yourself to stay quiet too long, they’ll put a narrative on you, too—they’ll fill in their version of you in the blanks.  Or put words in your mouth and tell you to perform.  Usually for their advantage.  You’ll be the good perpetual foreigner.  You’re the smart Asian.  The dependable one.  Harmless.  The emasculated male.  Fu-Manchu.  The submissive but hyper-sexualized vamp with a heart of gold.  Suzy Wong, Cio-Cio San, Miss Saigon—take your pick.  The one with not enough personality for an Ivy League education.  Math nerd.  Invisible.  The good POC.  The model.  Crazy rich and also crazy poor.  Yellow Peril.  The Virus.  Very easily our lived experiences are erased, replaced with convenient cultural scripts. 

So the surprise that Asian-Americans have suffered within the larger racial discord in this country is unfortunate.  The rest of the country is waking up to something that’s always been there for us.  I got good enough trying to “be American” that a law school classmate later said to me, “But Jerry, you’re not like those Asians.”  So good, so invisible that years later when I was employed at a predominately white place of work, a co-worker lamented during a group diversity training session that the problem with race at our workplace was that “We didn’t have any people of color.”  I pretended not to have heard that.  Later when another colleague approached me about it, asking whether I had felt marginalized, I lied to her, saying that I hadn’t been paying attention.  A white lie to a white colleague, because my instinct was to not rock the boat.  Last summer, when I was trying to convey to the dean of my law school that I was hesitant to fly back to the Northeast if the university reverted to in-person teaching, I stuck to the public health script rather than bring up my fears of safety as an Asian-American living alone in New England, away from family and community.  Have you seen the videos of people like me being taunted in the subway?  Being blamed for the virus?  Being told to go back home to China?  I felt too ashamed to go there, even though I knew my dean would have understood.  It wouldn’t matter anyway, I thought then.  I’ll just keep my head down and nothing will happen.  Naïve thinking.  

The reluctance of law enforcement to see anti-Asian racism in the Atlanta shootings is another attempt to fill in the blanks for us—the plausible deniability that comes from deliberately not seeing color.  But the lived experiences of AAPIs do matter.  We are not your model minority one second and then invisible the next.  The moment for AAPI individuals to be interpreters of this tragedy and this bias is now upon us.  We know that language well.  This time, I hope we won’t be silenced.  

Under The Law - Part Two

by Associate Professor Jeremiah Ho

In summer 2017, I wrote on this blog site that “our national narrative is being shifted away from cultural pluralism and democracy toward nationalism, subordination, and authoritarianism.” In particular, I noted how the narrative-shifting occurs:

The plot-line for narrative shifting is usually three-fold:  First, those perpetuating the narrative change find a base or a critical mass of followers on a particular issue to whom they begin to foster a sense of frustration and alienation by striking up anger and hatred for that issue.  (Think for instance: illegal immigration as an existing hot button topic with already incendiary reactions prior to the 2016 elections.)   Then as anger and frustration is reignited, those perpetuating the narrative shifting start to exaggerate the dangers of that issue.  (Think: fake news articles, false statistics of illegal immigration, and stereotypical sentiments echoed nationally that illegals are criminals and rapists.)  And then once sentiments have been ramped up to a frenzy, the narrative shifting breaks into the offering of a drastic solution to appease that base.  (“Let’s build a wall and make Mexico pay for it.”) 

This was not a strategy I made up; others in the media had pointed this out.  In 2016 and 2017, Donald Trump employed this strategy to deepen the existing hatred and xenophobia, and to justify his border wall project.  In 2020, Donald Trump repeated this strategy first with the coronavirus as a hoax and then with the U.S. Presidential Elections.  First, he reached out to his base before and after the election.  He primed them with falsehoods such as possible voter fraud with mail-in ballots and he got his base ready for anger if there was a November defeat at the ballot box.  Second, once he lost the election, he continued to gaslight their anger with false information (and lawsuits!) about fraud with the election process—stoking the “Stop the Steal” rhetoric while the nation was undergoing a severe spike in coronavirus cases.  Finally, at the end of the electoral process last week, once emotions had been stoked to a massive, burnished fury, he offered a drastic solution:  “Now it is up to Congress to confront this egregious assault on our democracy. And after this, we’re going to walk down, and I’ll be there with you. . . . We are going to the Capitol, and we are going to try and give—the Democrats are hopeless, they are never voting for anything, not even one vote, but we are going to try—give our Republicans, the weak ones, because the strong ones don’t need any of our help, we’re try—going to try and give them the kind of pride and boldness that they need to take back our country.”

Trump emboldened them as free citizens who felt they could rise above the law.  We all know what happened next.  I can’t get out my mind the image of the red fire extinguisher hurled at Capitol Police Officer Brian Sicknick, who later died from resultant injuries.  I can’t unsee that video of the defiant mob trying to enter the Senate chambers while another Capitol Police Officer, Eugene Goodman, bravely lured them away in a ruse that he was playing at the expense of his own personal safety.  And it’s hard not to see Zip Tie Man in full black tactical gear, climbing over railings in the Senate galley, in what seems like a pre-determined attempt to impose harm on congressional members. 

In the aftermath of the insurrection (I can’t believe I’m f*cking writing this word!), Trump needs to be held accountable to truth—whether that’s impeachment, through the 14^th amendment, prosecution, or something else.  Words matter.  Actions have consequences.  Even a grade-schooler can give you this lesson. 

Then, in this aftermath, our dedication to truthfulness and civility must be reaffirmed—the truth about climate change and inequality, the truth about the failings of our antidiscrimination laws in contrast to the lived experiences of discrimination and hierarchy, the truth about being free citizens that has to be under the law and not above it, the truth about who we really are and how we ought to aspire to be. 

What I wrote further about truth in that blog from 2017 haunts me now because in this crazy, exhausting 12-months, I’ve forgotten it: 

From Black Lives Matter to sexual identity and orientation discrimination, from health care to economic inequality, from immigration bans to gender pay discrepancies—as long as those issues are being debated, there will be those who will dislocate “abstract notions of human rights” in each and every one of those issues in order to spin the rhetoric to a viewpoint that serves their hegemony and marginalize not just democracy—but people.  For every intriguing and complex articulation of a new or continuing thought regarding human dignity that can appear in each one of these aforementioned issues, there is another nuanced strategy on the theme of the Other that can detract from the truth about human rights.      

More than ever before, we have an obligation in the academy—especially in law schools and universities—to teach students the truth that our freedoms are not absolute and that they extend directly from law.  That relationship is at the core of a democratic polity committed to a contemporary liberal project that is supposed to benefit all of us.  Recently after last week’s events, articles have appeared in major outlets, including one from Brian Rosenberg in The Chronicle of Higher Education, that have criticized higher education’s indirect complicity or responsibility in not stressing enough to our students to be able to think critically and value truthfulness.  I concur that part of the rebuilding from the Trump presidency is for us, university and law school professors, to point out the exaggeration in the narrative change to our own students—to repeatedly uncover the truth through our capacity to teach and to engage in extramural utterances in our research.  In part, as mentors and thinkers, we have a role to challenge the exaggeration and veer away from disinformation.  I think back to my grade-school teacher and her utterance “under the law, of course,” as a guiding point.  I urge others to do similarly.  We have to build back better.        

Under The Law

Editors' Note:  The following is Part One of Prof. Ho's reflections on recent events.

by Associate Professor Jeremiah Ho

Because I had spent my early childhood years outside the U.S. in a country that was, at the time, ruled by martial law, I experienced quite a few instances of cognitive dissonance when I started elementary school in Southern California in the early 1980s and learned about the American ways of life.  In one instance on my very first day in my American elementary school, I specifically recall being told to stand up with all the other children in the classroom, to face the American flag hanging in the classroom corner, and then to place my right hand on my chest.  My classmates seemed to know exactly what to do, and not wanting to stand out, I mimicked them.  What I couldn’t get away with was pretending to recite the Pledge of Allegiance that came next.  English was not yet a familiar language.  I mouthed it, watching and listening to what came forth from the other children’s lips.       

It wasn’t hard to discern that this was some sort of ritualistic act of patriotism.  After all, only a month before, I was leading morning salutes to the Taiwanese flag at the beginning of the school day in Taipei.  The dissonance came from feeling like I was giving something up—indeed acknowledging a brand, new allegiance.  Those early years were filled with those kinds of moments of translation and equivalence.  By the following month, the morning pledge of allegiance with my new American classmates became second nature.  About a year later, I could tell you mostly what the pledge meant—in English, no less. 

Another example of cognitive dissonance was when one of my grade-school teachers taught us that American citizens were free citizens living in a free country.  At first, that seemed strange and almost weirdly liberating because the country I had left was filled with so many governmental restrictions and rules that even as young children we knew we wouldn’t call ourselves “free.”  It didn’t feel oppressive—I had a pretty happy childhood in the Taiwan of the late 1970s and early 1980s.  But you knew there were many rules and even more “swift-justice” consequences for breaking them.  The portraits of authoritarian leaders hung in many public spaces.  You intuited your place.          

When hearing that America was a free country and that its people were free, I thought it was too good to be true.  But then there were things about America so far that had seemed to bolster this unbridled level of freedom—school seemed a lot less rigorous, the teachers weren’t allowed to spank you if you misbehaved or missed problems on a test, and children dressed up in costume on a holiday called Halloween where you asked for candy and got it.  Perhaps this was a free country!  Perhaps this was the reason why the name “America” when translated into Chinese meant “Beautiful Country”!  But just as I was in a rising moment of grade-school-level political exhilaration, I heard my teacher also say, “We’re a free country and the people are free citizens under the law, of course.”

I don’t know how my other classmates thought or felt at the moment.  But that was a let-down. 

What Donald Trump did in the last decade building up to this past week was to help his supporters forget that phrase “under the law.”  Time and time again, he’s emphasized “freedom” divorced from the rule of law and has himself demonstrated his disrespect for the law—and by extension our democratic norms.  His allegiance is to himself and his brand.  What’s so artful is that he did it in a way that stuck with his supporters at a pitch that parallels fevered religiosity.  But his version of “freedom” was a lie, repeated through disinformation and conspiracy theories enough times that the lie became the bedrock of the white supremacy that brought on the lawlessness we saw at the Capitol last week. 

 

Dialogue Rather Than Danger

by Co-Editor, Prof. Jeremiah Ho, UMass Law School

One lucid memory from my Southern California childhood was that of watching from our family living room the live TV newscasts of civil unrest in the days following the verdict of the first Rodney King beating case.  Koreatown and South Los Angeles stretched some considerable, and yet short miles west from where we lived in the valley.  So out of an abundance of caution, school was cancelled during the Los Angeles riots, and my younger sister and I, both in junior high school then, were under strict parental orders to stay indoors at home.  The endless news footage of revolt-turned-rampage became the regular daytime programming we absorbed continuously from our living room couch during those stay-at-home days.  We watched with our homework laid out on our laps and with questions of whether such violence might end up at our doorsteps superstitiously suppressed within our imaginations. 

Twenty-eight years later, while still sitting on the edge of the same living room couch that my parents have kept in our living room since the 1990's, and locked down in the same house during these new stay-at-home days, I viewed with eerie, heightened familiarity as an incident of police brutality and racial violence then resulted into days of outrage, protest, fire, and destruction that spread not only to the streets of Los Angeles but worldwide as well.  I blinked in 1992, and now decades later, my eyes open only to pick up watching the same live narrative.  The single patently obvious distinction seemed to be that these images of urban fire, ruin, and anger were now unfolding from the digital tablet on my lap.   

In the immediate days after the L.A. Riots, Rodney King wearily pled for peace on television by asking, “Can we all get along.”  He exhorted this sentiment after having been beaten on the side of a freeway in 1991, after watching the officers who had assaulted him dodge criminality in the first trial, after the fires in the city were finally smoldering down.  After Mr. King died in 2012, that famous question was set on his grave.  In raised metallic, all-cap letters, “Can we all get along” was bonded distinctly without a question mark at the very bottom of his gravestone plaque, deliberately rhetorical and open-ended, reminding us specifically of what Mr. King imposed upon our humanity in his televised soundbite.  Without the interrogative punctuation, “Can we all get along” also seems, in a disembodied way, to urge us imperatively to grasp for unity in our current world.  In 2020, that question (or directive) is being implored from a lonely grave in a Hollywood Hills cemetery to a world alive with (or dying from) vast income inequality, tribalist politics, alternative facts, social media hate-mongering, and selfish individualism.  I want to believe in a hopeful answer to Mr. King’s question.  I want to believe that the affirmative is possible.  

In order to get to that affirmative, we must first demand that the brutality against African-Americans and other people of color, as exemplified in the past and present incidents of Rodney King, George Floyd, and many others, was wrong and must end.  Racism and racial violence nullify a just and equal society.  From the unrecorded deaths of millions of enslaved people in our common history to the horrific lynching of African-American men during the 19^th and early 20^th centuries, we’ve had enough.  The riots I watched as a child in 1992 was not the first for Los Angeles.  Had I been alive in 1965, I would have witnessed the Watts Riots, an incident of civil unrest that also began with a police stop of a black man that went awry. 

And while we’re demanding an end to racial violence and overt acts of racism, we must also confront deeper obstacles keeping us from fully getting along.  At this juncture, the brutal conversation about white supremacy fueled by privilege must finally arise, even if it feels uncomfortable (as it should), even if it chokes us for the moment (unlike George Floyd or Eric Garner, we’ll survive, I promise).  A few days after George Floyd’s death, the heated Central Park exchange between Amy Cooper and Christian Cooper illustrates just how our racial tensions and inequality are multi-layered.  And so we must arrive at finding fault with the more subtle and entrenched ways our society disregards and devalues people based on differences such as skin color, gender, sexual preference, national origin, disability, income, class and the like—a practice so habitually pernicious that it is, in fact, institutional, structural, and systemic. 

In terms of race, white supremacy is not defined solely by deplorable acts of racial dominance and hatred that extremist groups such as the KKK exert against different people.  It also exists subtly in the deep-seated, privileged determination for a white person to not have to see color, and thus permitting the default norms of racial hierarchy to provide cover for that choice—to afford protection under the shield of plausible deniability that, for example, using the phrase “color-blind” seem to convey about a so-called tactic of egalitarian political correctness.  What actually happens when we purport not to see color under this paradigm?  More likely than not, we unconsciously dial our attention back to seeing the way things ought to be from the vantage point of whiteness because that has been the default normative perspective all along.  That’s what the plausible deniability is protecting: that we do end up seeing color and that color is white.  At heart, this is the innocent presumption of whiteness—the benefit of the doubt­ that society would have been more prone to bestow upon Amy Cooper had she falsely cried harassment against Christian Cooper in Central Park and had no contradicting smartphone video existed to protect him.

The same plausible deniability can also attempt to justify a white person’s choices to see color when it conveniently serves a purpose.  Ignorance cannot be blissful here.  It’s not enough to black out your Facebook or Instagram profile photo for Black-Out Tuesday only to replace it the following Wednesday morning with a selfie because the short-lived moment of respect and acknowledgement for the cause has appeared to have metabolized and you think you’ve done your part for racial justice.  As long as race construction continues to separate us, the ability to choose when to see color only reflects the privilege that veils and obscures deep insensitivity.  Until we abolish race construction in our politics, every day ought to be a Black-Out Day.  True virtue here can’t be earned through social media gesturing or other comparable shallowness, but rather through actively sustaining works of contrition and alliance by continually understanding our biases and confronting them before we again consciously or unconsciously marginalize based on race. 

As it is turning out, the fiery images from last week’s initial street violence isn’t repeating of the riots saga of 1992.  This time, it’s a little different.  Across the country, the numerous and widespread rallies that have outlasted the store-front wreckage and fire-bombed cars signal that it might not be danger that has arrived at our doorsteps, but dialogue and acknowledgement about race, including the subtleties of privilege that contribute to racial disparity and white supremacy.   Together, we must learn how to unravel these nuanced forms of racism so that we can all finally give Mr. King, and ourselves, an overdue response.      

The Irony of Asian-American Month: Part Two

Co-Editor Prof. Jeremiah Ho submits the second part of his writing reflecting on being Asian American during the time of COVID-19.

When President Trump and other politicians refer to Covid-19 as the “Chinese virus,” there is meaning and blame underneath that handy reference.  Simply put, one can say that what the world is dealing with is the “Chinese virus” because Covid-19 was known to have originated in Wuhan, China.  But adhering to that meaning is denying the phrase’s other slippery and sinister meanings—perhaps as a not-so-subtle gesture of the finger-pointing to China or to Chinese people as the cause of the virus; or an implication that Covid-19 is a virus inhabited and carried by Chinese people; or even worse, an implication that Chinese people are viruses.  As a parallel to The Plague, herein lies the moralizing that funnels the narrative of the pandemic into a narrative of blame.  In times of crises big or small, we all want to find the root cause and we all want to determine fault.  In law, this tendency to make meaning is a prominent, almost-daily ritual.  It’s only human. 

Yet, in this context, it’s also absurd; and unlike Camus, I am using that word here to discern.  Scapegoating and blaming Asians and Asian-Americans during this pandemic is a fall-back strategy for those interested in stirring up racial bias and hatred in order to make meaning in this crisis and permit them to usurp this moment to their advantage.  We saw this with the AIDS crisis with queer and gay people.  Within white supremacy, this type of othering conjures a false sense of security and control at the expense of a minority group. 

In part, the historical narrative of Asian-Americans has always been one that fluctuates between proving our worthiness and proving our loyalty for a sense of belonging in the American society.  The model minority myth plays into the meritocratic values of institutional and structural racism, making Asian-Americans appear as worthy of being recognized as the “good Americans” for working hard, keeping quiet, and abiding by dominant values.  The myth was originally imposed upon Asian-Americans but it also has been leveraged by Asian-Americans as part of the negotiation for acceptance by the dominant status quo.  At the same time, the yellow peril symbolism casts Asian-Americans as economic, physical, and national threats to American society so that individuals of Asian descent have to constantly prove their loyalties to the U.S. in order to gain security.  The treatment of Japanese-Americans by the U.S. government during World War II exemplifies this strand of that narrative.  In one quick month in 2020, we saw the materialism and meritocratic benefits of the Asian-American narrative replaced by the rise of yellow peril symbolism, breathed into the collective air by the antagonizing phrase “Chinese virus” and then quickly manifesting to displays of racial hatred and violence as the American public tries to find meaning in this crisis. 

What the model minority myth and yellow peril symbolism underscore for the Asian-American narrative is an idea that those embodying white supremacy want us to believe:  that people of Asian descent in the U.S. are perpetually foreigners.  They don’t belong here and they only cause trouble.  But Camus in The Plague would want us to find fault with this kind of blame during the pandemic.  Although the production of meaning is a human tendency, what is effectively and instrumentally meaningful in a time of collective crisis is not blame and descension, but common decency.  The main character in Camus’ novel a doctor who treats the diseased comes to realize this after months of treating patients and watching them die from plague.  The only meaning he finds in his work is not something as highly-charged as a kind of heroism but rather a sense of common decency.  It’s useless during the time of plague to uncover blame as a way to combat the sickness.  Rather, The Plague’s central character, Dr. Rieux asserts, “It may seem a ridiculous idea, but the only way to fight the plague is with decency.”  When asked to clarify the meaning of decency, he answers, “In general, I can’t say, but in my case I know that it consists in doing my job.”  In the novel, the way he externalizes his common decency to help fight the plague by working in solidarity to help those suffering from plague.  This present moment is one in which we need common decency to determine what will most equitably serve all of us.  We need to act with common decency in solidarity against this disease, rather than finger-pointing and creating fragmentation.  According to Camus, who wrote The Plague as an allegory about Nazi occupation in France during World War II, that common decency in solidarity is the needed resistance against a common pestilence—whether pathological or ideological, or both.     

In this pandemic, the leaders who are lacking serious epistemic responsibility are adhering to a narrative of American exceptionalism that is both absurd and dangerously untrue.  It can cost lives.  This is a moment to change that narrative by resorting together to find common decency to resist the urge to blame.  For Asian-Americans, and other minority groups, it is important to see where we all are in this system of white supremacy, to see how we are all being used, and to decide to reject the exclusion.  We matter.  We belong.  We don’t have anything for which to apologize.  Instead, we are in this together and we have work to do to help ourselves and others move beyond this searing disease.     

The Irony of Asian-American Month

by Prof. Jeremiah Ho

Prof. Ho writes this two-part post on the Asian American experience in the time of COVID-19

Last December, while I was searching for plane tickets for March spring break, the thought never crossed my mind that my one-week trip to visit family in my hometown just east of Los Angeles, would be extended indefinitely deep into the spring—and now likely summer—months.  At the time, I couldn’t imagine that we would all succumb to the effects of a significant virus; the world had not yet circulated the name “Covid-19”.  But very swiftly, the pandemic has made the catastrophic commonplace.  None of us have been immune to such physical and psychological terrors that have accompanied this health crisis.                 

The other thought that had not cross my mind last December was when, where, and how as an Asian-American, would I experience my next incident of racial hatred.  I know it’s coming.  It could be a confrontation and an epithet—tossed while I’m out in public when this is all over, catching me in a moment of surprise.  That sort of thing has happened before.  Or it could be a more subtle form of social denial or discrimination, where the perniciousness of the act is clearer only in hindsight.  There could also be violence involved.  Or it could be a combination of all these different types of hatred.  And it could happen more than just once.  All I know is that no immunity exists for such horror-laden moments.  Once the public health crisis arose, the number of racially motivated attacks on Asians both in the U.S. and globally also rose.  I’m expecting my turn.   

How swiftly the narrative has shifted for Asians and Asian-Americans in the U.S.from the dominant status quo’s regard as model minority citizens back so suddenly to yellow peril.  In my hometown just east of Pasadena, California where I grew up and have spent these months quarantining with family, the Asian-American population here has grown radically across the last four decades.  In the early 1980s, I was only one of three Asian-American children in my elementary school classroom, but by the time I graduated high school in the same town, Asian-American students comprised of more than 50% of the student population.  Today, my old high school counts Asian-Americans as nearly 70% of its students.  We are the majority—so much so that there is even a separate Chinese-American parents booster club.  Where the old Ralphs Supermarket used to be, a giant H-Mart Korean market now sells the most exotic (but mundane to us) Asian groceries.  In town, there are two outposts of the legendary Din Tai Fung Restaurant, the Taiwanese eatery famous among international foodies for its soup dumplings.  A handful of Asian banks dot the town’s business districts, and our city hall’s website has translated versions in traditional and simplified Chinese, in Korean, and in Spanish.  Take your pick.  Back before the health crisis had us quarantining, my retired parents never had to speak a word of English when they stepped out of the house to run errands.  And even in our time of safer-at-home, the Chinese language newspaper still delivers to our door every morning. 

My hometown is one of several cities in the San Gabriel Valley that have seen an Asian-American immigration boom.  But even so, when I take walks in my old neighborhood of quiet post-War single-family homes and I pass by white neighbors, I find that the practice of social distancing is both a practice of safety and suspicion.  It’s as if any social or political capital that’s been built on the material progress of Asian-Americans in our town has seemingly crumbled.  Every time I take my parents’ car out for its bi-weekly run and drive by the Santa Anita Race Track, a famous historical fixture in town that still hold professional horse-betting today, I recall that it was used as a Japanese-American detention facility during World War II.  And I’ve been reminded of this fact, especially so, while it’s been Asian-American Heritage Month these last several weeks. 

In Albert Camus’ The Plague, an extremely apt and salient novel to read (or re-read) during our pandemic, Camus demonstrates the human tendency to make meaning out of a natural world that has no concern for meaning.  In The Plague and other works, Camus associated this tendency with what he called “absurdism” because invariably, as he believed, the world defies meaning and is indifferent to our humanist struggle to make our lives and the world meaningful.  Contrary to the sound of the word, “absurdism,” to our ears, Camus does not judge our constant endeavors to search for meaning in life as a deficiency.  But rather, as seen in The Plague, it’s the type of meaningful response that we have when there’s an unexpected crisis, like a city-wide plague or a global pandemic, that matters for judgment.  In The Plague, the disease that unexpectedly asserts itself over the sleepy Algerian town of Oran prompts quarantine and then causes widespread suffering and death.  The plague is first interpreted by a Catholic priest in the novel as an outcome of human sin of the town’s inhabitants.  The plague is moralized and made meaningful in terms of blame. 

Queer Sacrifice

 

In his most recent article"Queer Sacrifice in Masterpiece Cakeshop" (31 Yale J. L.and Feminism 249) co-editor Prof. Jeremiah Ho considers that the legal advancements by members of the LGBTQ community, for example with same-sex marriage, rested upon the litigants’ assimilation into mainstream culture.  Prof. Ho further analyzes cases with rulings adverse to LGBTQ concerns and the role of plaintiffs who do not fit into mainstream heteronormative culture and expectations.

 

 

Abstract

This Article interprets the Supreme Court’s 2018 decision, Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, as a critical extension of Derrick Bell’s interest convergence thesis into the LGBTQ movement. Chiefly, Masterpiece reveals how the Court has been more willing to accommodate gay individuals who appear more assimilated and respectable—such as those who participated in the marriage equality decisions—than LGBTQ individuals who are less “mainstream” and whose exhibited queerness appear threatening to the heteronormative status quo. When assimilated same-sex couples sought marriage in Obergefell v. Hodges, their respectable personas facilitated the alignment between their interests to marry and the Court’s interest in affirming the primacy of marriage. Masterpiece, however, demonstrates that when the litigants’ sexual identities seem less assimilated and more destabilizing to the status quo, the Court becomes much less inclined to protect them from discrimination and, in turn, reacts by reinforcing its interest to preserve the status quo—one that relies on religious freedoms to fortify heteronormativity. To push this observation further, this Article explores how such failure of interest convergence in Masterpiece extends Derrick Bell’s thesis on involuntary racial sacrifice and fortuity into the LGBTQ context—arguing that essentially Masterpiece is an example of queer sacrifice. Thus, using the appositeness of critical race thinking, this Article regards the reversal in Masterpiece as part of the contours of interest convergence, queer sacrifice, and fortuity in the LGBTQ movement. Such observations ultimately prompt this Article to propose specific liberationist strategies that the movement ought to adopt in forging ahead.

 

A Question of Pride - Will Legal Advances Stand?

By Prof. Jeremiah Ho

This year’s June LGBTQ Pride Month is distinctive because it marks the 50^th anniversary of the Stonewall Riots.  A half-century ago, New York City police raided the Stonewall Inn, a cramped gay bar in Greenwich Village.  That harassment incited a six-day riot from gay patrons and neighborhood sympathizers.  In LGBTQ history, the Stonewall Riots represents a defining moment of acting up and symbolizes the threshold of the gay liberation movement of the 1970s, which ultimately transformed LGBTQ visibility.    

This past year has brought other LGBTQ anniversaries.  Last October was the 30^th anniversary of National Coming Out Day.  This past February marked 15 years since Massachusetts first legalized same-sex marriage.  There is much to commemorate. 

Yet, not all anniversaries this June are celebratory.  A year ago, the Supreme Court reversed a Colorado ruling that a Christian baker’s refusal to sell a wedding cake to a same-sex couple was discriminatory.  In Masterpiece Cakeshop v. Colorado Civil Rights Commission, the Supreme Court protected the baker’s religious freedom by finding that the lower proceedings had been tainted by religious hostility—even when the same-sex couple’s sexual orientation discrimination claim was sound.  Some legal commentators have since questioned the Court’s grounds for finding religious hostility.  

Before Masterpiece, full equality for LGBTQ individuals seemed inevitable.  The Supreme Court had protected LGBTQ people from legislative animus, de-criminalized their sexual relationships, and overturned the Defense of Marriage Act.  In 2010, Congress repealed Don’t Ask, Don’t Tell.  Progress culminated in 2015 when the Supreme Court recognized same-sex marriages in Obergefell v. Hodges.  Love won—as the popular saying went.

But Masterpiece and the current lack of full equality loom over this Pride Month, especially as Stonewall’s anniversary approaches. 

Aside from the Supreme Court’s questionable interpretation of religious hostility in Masterpiece, the problem with last year’s wedding cake case reveals a hurdle for current LGBTQ activism.  This hurdle was one that Stonewall, in part, externalized and what turned the conformist style of gay rights activism of the 1960s into its 1970s radical liberationist incarnation.  In the quest for equality, some gays, unfortunately, tend to get ahead of others.  

To win marriage equality in 2015, the same-sex couples in Obergefell had to show that their interests in marrying converged with the interests of mainstream America to uphold traditional marriage.  In his studies on American racial progress, the late Derrick Bell, NYU legal scholar, had called this strategy “interest convergence.” 

• Achieving interest convergence in Obergefell meant that the same-sex couples could not threaten the mainstream status quo of America while seeking one of its most prized institutions.  The strategy was conformance, assimilation, and respectability.  The couples resembled mainstream straight married couples by exhibiting cultural, economic, and gender norms that aligned with the status quo.  A 2015 Yale Law paper explored just how assimilated these same-sex couples were in Obergefell.  See Cynthia Godsoe, Perfect Plaintiffs, 125 Yale L.J. F. 136 (2015).  The couples looked all-American in the upper-middle class, mostly-white, professional, and family-oriented sense, and made marriage equality an issue seemingly confined to a small, elite segment of the LGBTQ population.  That strategy worked.  Love did win. 

But the strategy also relied on gay elite privilege to overcome a legal struggle for equality.

Last year, the same-sex couple in Masterpiece did not resemble the same-sex couples in Obergefell.  Without children and upper middle-class professions, they didn’t seem as “all-American” or mainstream.  In public, their hairstyles and clothing blurred gender lines.  The two men, Charlie Craig and David Mullins, even dared to kiss outside the Supreme Court building.  Culturally, they were queer, not assimilated.  And their plight against discrimination pitted their queerness directly against anti-gay Christian beliefs—threatening another status quo institution:  religion.  Interests didn’t converge then.  Instead, the status quo felt threatened and so the baker won.    

Thus, equality bears a conditional message for gays:  resemble the mainstream or your chances for equal treatment are attenuated. 

In spirit, Stonewall and the gay liberation movement of the 1970s urged against surrendering visible, authentic lives for compromises that assimilation and respectability might bring.  The LGBTQ movement must do better to show mainstream America that there are others to recognize.  In my forthcoming article from the Yale Journal of Law & Feminism, I detail further the status quo anxiety in Masterpiece and propose a shift away from identity politics to broad coalitions premised on democratic values.  A preview of the piece is available here.

Moreover, in the next Supreme Court term, three cases of employment discrimination against gay and transgender individuals will also allow the movement to re-examine its strategies.

Yes, marriage equality provided progress and the Obergefell plaintiffs were true to their own struggles.  But when discrimination in employment, housing, and public accommodations still affect LGBTQ individuals, marriage equality was not full equality. 

So this Pride Month when we see those “Love Wins” signs again, we must also ask:  when will queer win? 

 

Status Anxiety At The Supreme Court: Reconciling Dunn v. Ray & Masterpiece Cakeshop

By Jeremiah Ho  Association Professor, UMass Law School

It’s probably unsurprising to say that a severe case of status quo anxiety has influenced the acrimonious states of our recent politics.  The Senate majority’s latest episode of “going nuclear” (i.e. using a simple-majority vote) to rewrite the rules for confirming presidential judicial nominees seems like a move partly motivated by an urgency to clear the backlog of Trump nominees before a period of political powershifting arrives.  

Last year at this time, a study put forth by the National Academy of Sciences suggested that the dominant demographic that supported Trump in the last presidential election cycle (white, male and Christian) did not act necessarily out of a sentiment of feeling “left behind,” but rather by the narrative of fearing what may come.  Here is a NY Times article from last year that succinctly summarizes the study.  If the idea of fear of the future holds true, then it not only helps us understand what happened in 2016, but also, for the time being, our current state of politics—and, derivatively, of law.

I broach this idea of status quo anxiety because I’ve seen it in two Supreme Court decisions involving religion rendered in the past year.  Such anxiety helps explain for me what might be the animating principle for the Court in controversial decisions that may bring up the fear of progress—or putting it in relative terms of the status quo—the fear of losing status as a result of socio-political progress.

First, in reverse chronological order, is Dunn v. Ray, a case from this past February where the Court vacated the stay of execution entered originally by the Eleventh Circuit.  In Dunn v. Ray, Domineque Ray, a black Muslim, who had been placed on death row in Alabama, requested to have an imam present at his execution.  The Holman Correctional Facility in Alabama, where Ray was to be executed, had regularly permitted Christian chaplains for prior executions but refused Ray’s request for an imam.  Ray appealed and sought a stay of execution.  The Eleventh Circuit granted the stay because it held that the prison facility likely violated the First Amendment Establishment Clause and would proceed to consider the merits of Ray’s case.  However, on further appeal by the Alabama Department of Corrections to the Supreme Court, the Court in Justice Thomas’ written order, vacated the stay of execution because it determined that Ray had waited too long to seek his request for an imam.  The result, as many commentators have noted, is a disparate result between different religions—imparting what Justice Elena Kagan wrote in her dissent, joined by Justices Ginsburg, Breyer and Sotomayor, was treatment that prioritizes a majority religion over a minority religion.  In her words, the Court’s decision “goes against the Establishment Clause’s core principle of denominational neutrality.” 

Some observers immediately noted a speciousness in the Court’s reliance on procedure to lift the execution stay.  The reliance on procedure here seemed heavy-handed, especially in light of the constitutional violations that underscored this case.  Dunn v. Ray is an unsatisfactory case because Ray’s religious merits were ignored—and yet, this is the same court that has recently fortified religious practices, most notably in cases such as Burwell v. Hobby Lobby or Town of Greece v. Galloway.  Very shortly in this term, we will see the Court’s decision in another religious liberty case, American Legion v. American Humanist Association, involving a cross as a war memorial.  So what’s the difference between Dunn v. Ray and the others?  Well, the difference might just be as terse as the majority’s decision in Dunn v. Ray:  we protect religion so long as that religion does not seem to displace or threaten the status quo. 

For further guidance, I refer to Derrick Bell’s theory about the status quo to explain why this underlying motive might be so.  As a corollary to Bell’s well-regarded interest convergency theory, he espoused that even where an effective remedy exists for a marginalized group, that remedy will be abrogated at the point that those in power fear the remedial remedy is threatening the superior societal identity of the status quo.  In the context of political marginalization of African-Americans, Bell called this “racial sacrifice.”  But I also view his theory’s instrumentality applicable to other marginalized groups.  In Dunn v. Ray, the subordination of Ray’s religious liberties could be sacrificial in Bell’s terms as well. 

The Judeo-Christian backgrounds of the majority Justices in Dunn v. Ray are uncontroverted, as well as their conservative dispositions.  In addition, the Judeo-Christian identity is well within the status quo of the American mainstream society and has influenced action on headline-grabbing controversial social issues such as women’s health and sexuality all the way to more subtle conventions such as the national holiday calendar. 

By contrast, there is no doubt that the Muslim faith has engendered much disregard and misunderstanding, especially since September 11^th and the war on terror.  Some of the negative responses have become racialized and ensconced within the rhetoric against those of Middle-Eastern descent.  In addition, the politics of race—especially the relations between white and African-American groups—have not fared well in recent years.  All of these combined tensions could have resonated and then fallen upon the shoulders of Ray in his request to the prison for an imam.  Ray was, by all accounts, a black Muslim who had been convicted of a 1995 homicide of a Selma, Alabama girl, Tiffany Harville.  His request for an imam, rather than a Christian chaplain could have triggered a discriminatory response from Alabama prison officials that was independently echoed by the Court’s majority because it would not have led to affirming the freedom to engage in Christian practice, but rather a minority religion.

Status quo bias may not be coming from the Supreme Court bench in the expressed case sentiments of the Justices.  It might, however, explain the use of procedure to summarily dispose of Ray’s case, even when Ray had some constitutional remedial measures, as the Eleventh Circuit had recognized.  Ray might have been substantively entitled to his religious practices, but legal procedures were strictly enforced against him to effectuate that practice.  Ultimately, it results in a double-standard brought to us through plausible deniability that Justice Thomas espoused that Ray’s imam request simply could not be obliged because the timing of the request did not adhere to procedure.  As Justice Kagan revealed in her dissent, it was quite possible the context of Ray’s request had certain injustices that would have made a prompt request impossible. 

Herein lies the speciousness.  The substantive case was strong on Ray’s side but the Court’s procedural justification to deny his request was weak.  The decision to lift the stay prioritizes the Christian faith over other faiths in Ray’s case, despite our constitutional standards of religious neutrality.  Could the resort to procedure be just a cover?  After all, is it the old lawyer’s strategy to resort to procedure if the substance of a case’s merits is not going to produce a win.  (See the late John Dingell’s famous quote: “If you let me write the procedure, and I let you write the substance, I’ll screw you every time.”).  Constitutionally, Ray might have been entitled to having an imam at his execution just as much as another inmate would have been entitled to a chaplain in similar circumstances, but because the Muslim faith is being invoked here, it isn’t treated as urgently as the Christian faith might be.  The Court, under the guise of procedure and plausible deniability, summarily defeats Ray’s claim.  Was the Court’s majority threatened by the idea that giving parity to the Muslim faith in Ray’s instance seemed somehow threatening to the religious liberties given to Christian practices?  Under Bell’s thesis, could we deem this a moment of Muslim and racial sacrifice?

Another recent Supreme Court case that shares this same mechanism is Masterpiece Cakeshop v. Colorado Civil Rights Commission.  In that case, a same-sex couple sought a claim of sexual orientation discrimination under the Colorado Anti-Discrimination Act (CADA) after they had attempted to order for a custom-made cake to celebrate their then out-of-state marriage but was refused by a Christian baker.  By all accounts, under CADA, the couple had strong evidence of sexual orientation discrimination and the baker did not fall within any religious exemptions.  The state-level determinations all found that the same-sex couple had been discriminated against under CADA.  But in 2018, even after Obergefell, the Court reversed the couple’s sexual orientation discrimination claim, not on the substantive merits but through procedure—observing that the lower state proceedings had disparaged the baker’s Christian faith during its review and thus violated religious neutrality.  Again, procedure was used rigidly to vitiate the strong substance of the discrimination claim.  Justice Kennedy’s use of procedure here—the violation of religious neutrality, was likewise specious and thin.  The concurring and dissenting Justices in Masterpiece debated the existence or non-existence of religious neutrality, which seemed to place some doubt on the firmness of Justice Kennedy’s findings.

Could Dunn v. Ray and Masterpiece Cakeshop decisions—both involving religious liberties, minority claimants with strong substantive merits, and the Court’s dismissive use of procedure—have been rendered out of a perceived threat to the status quo’s religious identity?   Do we have a panic on the Court?  Placed with the context of status quo anxiety and Derrick Bell’s sacrifice theory, the two cases allow us to think about the Court’s future renderings for religious freedoms.  If the Court is presiding collectively with status quo anxiety in mind, then minority claimants that seemingly threaten the status quo might have their prayers for relief fall on deaf ears.    

Boy Erased and the Age of Authenticity

By Professor Jeremiah Ho

In recently reading Garrard Conley’s 2014 memoir, Boy Erased, and then watching the film adaptation by the same title currently in the theaters, what struck me as disturbing was the length to which the gay conversion therapy depicted in both book and film had promised to fundamentally cure a person’s same-sex sexual orientation by resorting to nothing but a pseudoscientific process—one akin to some sort of medieval torture for the mind and self. For those who haven’t read the memoir or seen the film, both book and film portray the experiences of a college-aged son of a Baptist preacher after, against his wishes, his secret gay identity is revealed.He is then coerced into conversion therapy.

In Boy Erased, the depiction of gay conversion therapy and its underlying tenets sticks to the traditional philosophy of such therapies—that same-gender preference is a pathology, a curable disease that was a result of some personal and/or familial moral failing. In essence, the assumption underscores that queerness is a manifestation of a moral failing and if those who are “afflicted” really put in the hard effort to work on eradicating their preferences, then they can be cured and rejoin society with good, meaningful straight lives.

Despite the huge process in LGBTQ rights in recent years, both the book and movie adaptation of Boy Erased are timely for two specific reasons that came to mind as I read the memoir and watched the film. First, the narrative of Boy Erased reminds us of a past age when gay conversion represented one of the negative and dangerous consequences when sexual minorities tried to live authentically in society. Set in 2004, the events of Boy Erased took place the same year same-sex marriage was first recognized in Massachusetts and right before the short period when some other states—particularly in state supreme courts, such as Iowa, Connecticut, and California—started recognizing marriage equality. As such, Boy Erased is a reminder of that era, where attitudes about homosexuality were shifting, but the subscription to the idea of being cured through gay conversion therapy was still strong. After all, the historical rejection of sexual minorities included consequences for sexual minorities of facing persecution and violence, converting themselves to heterosexuality, or pretending to be heterosexual. And attitudes about sexual minorities hadn’t shifted enough to reach the kind of recognition that brought about Windsor and Obergefell. Though contemporaneous with the Goodridge v. Department of Health , Boy Erased was set four-years before California’s Proposition 8's about-face and was during the time of Don’t Ask, Don’t Tell.

Currently in 2018, there are 14 states that have banned gay conversion therapy for minors (California, Connecticut, D.C., Delaware, Illinois, Maryland, Nevada, New Hampshire, New Jersey, New Mexico, Oregon, Rhode Island, Vermont, Washington). An overwhelming consensus exists in the medical community that gay conversion therapy——is harmful and should not be practiced. In this way, Boy Erased was timely because the narrative serves as a marker of where we have been in recent gay rights incrementalism. The year 2004 was in the age of conversion, but not yet in the age where we are now.

An overwhelming consensus exists in the medical community that gay conversion therapy is harmful and should not be practiced. In this way, Boy Erased was timely because the narrative serves as a marker of where we have been in recent gay rights incrementalism. The year 2004 was in the age of conversion, but not yet in the age where we are now.

In Part II, Prof. Ho will address the struggle for authenticity and the risks of assimilation.

Gun Violence and Human Rights Rhetoric

This week the HRAH Blog runs a symposium on aspects of Gun Violence and the interconnection with Human Rights.  Professor Jeremiah Ho leads the discussion with a look at recent commentary on the second amendment. 

 by Jeremiah Ho

Last weekend, the March for Our Lives in D.C. and other U.S. cities externalized one of the boldest reactions to the need for stricter gun control and safety regulations than we’ve seen in the past two decades since the Columbine High School shootings in 1999.  Stoked by the February gun violence at Parkland, Florida’s Marjory Stoneman Douglas High School, those who sought tighter gun regulations expressed their thoughts and voices at marches and rallies across the U.S., from D.C. to even smaller cities, such as Providence, Rhode Island (where yours truly resides).   

 A few days later, with the momentum still lingering, retired Supreme Court justice, John Paul Stevens, penned an op-ed in the New York Times, calling for the repeal of the Second Amendment.  For those who might have missed it, the link to the op-ed is here. 

In his own post-Court and post-dissenting position from 2008’s District of Columbia v. Heller, Justice Stevens wants to move us further in the gun control debate by advocating for the idea of repealing the Second Amendment entirely.  His basis for doing away the Second Amendment is historical.  As he observes, “[c]oncern that a national standing army might pose a threat to the security of the separate states led to the adoption of that amendment, which provides that ‘a well regulated militia, being necessary to the security of a free state, the right of the people to keep and bear arms, shall not be infringed.’ Today that concern is a relic of the 18th century.”   

Not hard to surmise, a lot of voices in both praise and disagreement have gathered in reaction to Justice Stevens’ conclusive, but not necessarily illogical, idea of repealing the Second Amendment.  Just one day later, the Times published a collection of readers’ comments to Justice Stevens’ op-ed.  Certainly, it is not the first op-ed in the Times that have called for repealing the Second Amendment.  I recall Bret Stephens penning one last fall, urging the same but by weighing out the different alternative options to a repeal and by analyzing the data behind gun violence.  Perhaps Justice Stevens’ article was written with broader strokes in order to appeal more emotionally to readers while the optical impact of the March for Our Lives weekend was still in the national imagination.  Whereas by comparison, Bret Stephens’ op-ed seemed to persuade us more cerebrally.  Nevertheless, the deliberate timing of Justice Stevens’ op-ed harkens strategically to something that the Bret Stephens’ op-ed had alluded.  Where Bret Stephens wrote that “[r]epealing the Amendment may seem like political Mission Impossible today, but in the era of same-sex marriage it’s worth recalling that most great causes begin as improbable ones,” Justice Stevens seemed to disagree by warranting that “a constitutional amendment to get rid of the Second Amendment would be simple.”  Bret Stephens did not have the momentum from the March for Our Lives, but both op-eds seem to be playing upon conceptions of political incrementalism—a historical and political process timeline that many social and political issues—such as marriage equality as Stephens’ rightfully notes—have played themselves out to resolution.  Within the gestures of incrementalism, Justice Stevens’s article is closer in time to a catalytic movement for gun control now in March 2018, than perhaps Bret Stephens’s piece was in October 2017.

I do not profess to know exactly how politically or legislatively simple or difficult it would be to repeal the Second Amendment.  NPR has a great video article about the difficulties of repealing the Second Amendment.  However, I do think that Justice Stevens was taking advantage politically in the moment while the pendulum toward regulation seemed to be swaying.  From an incrementalist’s perspective, there are several things in the national imagination on guns that will need to be debated through before a repeal is possible—including the false nostalgia surrounding guns, the historical misnomers, the masculine culture that condones gun worship, and the endowment effect. 

But perhaps while that pendulum is swinging—if it indeed is—it could also be time to raise up the human rights rhetoric in favor of gun control.  For years, proponents of gun rights have used the “gun rights are human rights” equation to engender and embolden the idea that the freedom to own guns is associated with civil liberties and must be protected.  Along with the professed ambiguities of the Second Amendment, such rhetoric has helped assail the notion that owning a gun is basic, fundamental, constitution, and human.  However, all of this is incorrect.  A human right provides protection or freedoms over a quality that intrinsically makes us human beings and guarantees the most basic needs associated with that intrinsic quality.  Access to such critical things as water, food, shelter, and adequate healthcare are within our human rights.  Beyond that, our ability to freely participate in our society, despite our differences in race, gender, sexuality, religion, ethnicity, or disability status, is a human right because such free participation, as part of belonging to a society, is integral to preserving our dignity and identity. 

Owning a gun, from this perspective, is not integrally associated with being a human being.  Gun ownership isn’t about identity—but is rather a product of false nostalgia.  Although useful in hunting, guns are not basic to our survival for food.  Gun ownership is more akin to a licensed privilege rather than a basic, fundamental right.

But what about gun violence as a human rights issue itself?  In the aftermath of Parkland and the March for Our Lives, the human rights perspective against gun violence has traction and should rise as focal point—even if rhetorical at this point—to continue pushing that pendulum toward stricter gun laws.  Amnesty International, for instance, has announced its efforts to shift the attention of the gun debate into the human rights forum—not about owning guns as a human right, but toward the ability for our society to provide safety against gun violence as a basic human rights necessity.

Perhaps in this way, ideas from Justice Stevens, Bret Stephens, and others about repealing the Second Amendment would be a possible ultimate goal of this political incrementalist narrative.  Or perhaps stricter gun laws might be the end solution.  But in order to get there, we ought to use human rights rhetoric correctly and ethically to help push that agitated pendulum. 

 

Finding Rebellious Lawyering

By Jeremiah Ho

 

RebLaw 2018 took place at Yale Law School a few weeks ago.  For those who might not be familiar with the yearly RebLaw conference, it is one of the largest student-run public interest conferences in the United States.  The philosophy behind the conference is influenced by Gerald Lopez’s Rebellious Lawyering.  And the conference’s mission is to build awareness amongst law students, practitioners, and activists of social change movements and to challenge hierarchies of race, gender, class, and expertise within legal practice and education.

At the University of Massachusetts School of Law, where I teach, the several students who attended this year’s RebLaw conference had also decided to organize a series of social justice and public interest events in the week gearing up to their conference trip to Yale.  They called it “Justice Week” and they held various events ranging from a roundtable discussion featuring public interest lawyers from Massachusetts to a movie showing of “Vincent Who?” followed by a question-and-answer discussion on the issues surrounding Asian Americans and the justice system. 

In between these events, I was asked to teach a workshop on how legal pedagogy replicates and sustains hierarchy in law schools and legal culture.  At first, I was apprehensive.  This was a tall order for a one-hour lunchtime event.  But then I saw fervor of my students and saw an opportunity to have an honest conversation about what law schools do sustain intellectual and cultural hierarchy.  In the last year especially, I have been concerned about how to connect my teaching of law with a duty that is more moral and meaningful.  So I jumped right in and assigned two readings, Duncan Kennedy’s classic Legal Education as Training for Hierarchy and Shari Motro’s recent article in the Yale Journal of Law and Humanities, Scholarship against Desire. 

Often the discussion about teaching law students to think critically revolves around the “Thinking like a lawyer” phrase, attributed to Christopher Langdell at Harvard in the 1870s.  As Robin West and others have noted, most commonly that idea of thinking critically in law schools is siphoned within the context of learning doctrine.  Despite some innovations, we still rely very heavily on Landgell’s formalist pedagogy to teach law—pedagogy that draws from 19^th century perspectives of science and objectivity, and from Langdell’s heuristic that “law is complete” or that “law is a science.”  Thus, our classroom investigations of the law through a body of cases, our lecture explorations animated by the Socratic method, and our adherence to doctrinal courses over clinical ones in the curriculum create a distorted view for our students about what law itself is and how it is connected to the human experience by being a vehicle for certain ends, such as justice.  Our students spend a lot of time trying to learn the rule of law inductively and develop analytical skills that are contextually in service of the doctrinal aspects of law.  In the law classroom, often the law takes shape in that 19^th century form; if it’s complete and scientific, according to Langdell and his pedagogy, then the law resembles some animal perfected by some Darwinian journey that our students, like scientists, must ferret it out amongst the casebooks they purchase.  But beyond that, our pedagogy leaves very little room to help students conceptualize the law.  They end up accepting the law’s completeness.  Thus, a good deal of American legal education ends up being rigorous but not intellectual, legalistic but not political, and analytical but not creative and personal. 

The goal of my workshop was to get law students to see that the version of law and lawyering they have been exposed to has its perceptual limitations.  The Duncan Kennedy piece is very good at giving language to observations about law schools—observations that, for better or worse, students often accept and take for granted.  If law school is hierarchical, then who gets to be at the top of that hierarchy and what kinds of values and norms are replicated in furtherance of sustaining that hierarchy?  If Langdell and his white-Anglo, male, “learned” 19^th century objectivity propagated how we teach and have taught law for the last 140 years, then what does it mean for hierarchy when that same pedagogy remains?  What does this mean for other voices and experiences in the law and its furtherance of justice?

What we have seen in the uptick in the last year with social and political developments, such as the #MeToo movement, are various responses to hierarchy.  Meanwhile, events such as the passing of federal tax reforms that promote financial inequality are examples of embattled approaches of continued dominance by those who are invested in holding onto positions at the top of our society.  I think law schools need to respond by broadening and challenging students to conceptualize the law differently than how it has been taught.  Otherwise, Kennedy is right, we are training our students to think about the law critically but only in the sandbox and not out in the field.  They don’t realize that the law is within them and that they bring the law to life.  For instance, what kind of methodical and creative legal thinking would it take to link the debate surrounding gun rights and legislation, which has resided as a Second Amendment issue, with violation of human rights?  Do we teach or at least encourage that in law schools? 

The solution in regard to pedagogy that would destabilize the hierarchy set in law schools is what I gleamed from Shari Motro’s piece, Scholarship against Desire, where she rages against the hierarchical and assimilative nature of law faculty culture by weaving authenticity into her scholarly work and her law teaching.  Whether concrete solutions to change our pedagogy wholesale to reflect a different conception of law, I’m not yet sure because I’m not convinced that there is just one overarching conception of law.  Rather, I see pluralism.  And thus, I assigned Motro’s work to challenge students—not just those interested in human rights or public interest—to bring their authenticity to the forefront of their studies and work.  Pluralism is sustained by authenticity of experience.  And law, after all, furthers human experiences.

At a time in which many social issues are rising to the forefront—some ripening very rapidly to be changed—I feel as if law schools are not doing enough to teach future legal thinkers and problem-solvers to explore the possibilities of law, rather than its probabilities.  I see this domestically in the U.S. as a challenge to the forward momentum of human rights thinking on issues in which lawyers have input or agency.  I also hope myself to be thinking about ways to address this issue as someone in the academy.                     

Keep the Cameras Rolling: Photographers Lose in Challenge over Refusal to Service Same-Sex Weddings under Minnesota’s Human Rights Act

by Prof. Jeremiah Ho

 Last week, a federal district court in Minnesota ruled against plaintiffs Carl and Angel Larsen, and their videography company, TMG, in their suit against Lori Swanson, Minnesota’s Attorney General and Kevin Lindsey, the commissioner of Minnesota’s Department of Human Rights.  In Telescope Media Group, Inc. v. Lindsey, the plaintiffs had lodged a “pre-enforcement challenge” to the prohibition on sexual orientation discrimination under the Minnesota’s Human Rights Act (“MHRA”).   The plaintiff couple had goals to expand their company into the wedding video industry with a specific purpose of using their wedding video services to express their opposition to same-sex marriages and reify the Christian belief in opposite-sex marriages.  To effectuate their goals, they intended not to produce wedding videos of same-sex couples and also intended to post a message on TMG’s website explicitly denying service to same-sex weddings.  That posting would have violated Minnesota’s Human Rights Act with civil penalties up to $25,000.  In addition, Minnesota legislatively recognized same-sex marriages in 2013.  Hence, their challenge arose. 

Because the plaintiffs had yet to produce wedding videos and actively discriminate against same-sex couples, justiciability issues were raised.  But for the most part, the district court dismissed those challenges by the defendants and ventured into the merits of the plaintiffs’ claims, which were based under a constitutional free speech, right of association, religious exercise, unconstitutional conditions, equal protection, and due process arguments.  

The challenges under the First Amendment were untenable.  For the free speech argument, the court ruled that the MHRA was a content-neutral regulation and did not violate the plaintiffs’ free speech rights under intermediate scrutiny.  The court also found that the plaintiffs had not shown a viable claim under the compelled speech doctrine.  Furthermore, the court pronounced that the plaintiffs’ textual challenge against the MHRA for terms that they claimed would lead to unbridled enforcement discretion was not credible.  For the right of association arguments, the court quickly dismissed the notion that the MHRA inhibited the plaintiffs’ right to expressive association to an extent that would be constitutionally dangerous.  The court also dismissed the plaintiffs’ religious exercise challenge by noting that the MHRA was a regulation of general applicability.  Lastly, the plaintiffs’ attempt to restate their First Amendment claims under an unconstitutional conditions argument was seen as merely repackaging what the court already had not favored. 

Under the Fourteenth Amendment, the plaintiffs’ equal protection and due process arguments also crumbled—mostly because of unsustainable characterizations of their status or similar repackaging of their free speech arguments. 

Already, the most well-noted excerpt of the ruling has been Chief Judge John Tunheim’s analogy that the plaintiffs’ desire to turn down same-sex clients by posting such a disclaimer on their website was “conduct akin to a ‘White Applicants Only’ sign.”  No doubt, this lawsuit is likely to be appealed.  The plaintiffs’ attorneys, from Alliance Defending Freedom, are part of same team representing the wedding cake maker in Masterpiece Cakeshop v. Colorado Civil Rights Commission, to be argued at SCOTUS this fall.  That case involved a professional wedding cake provider’s refusal of business to same-sex couples. 

Post-Obergefell, after the extension of marriage to same-sex couples, these cases present an interesting moment for sexual orientation antidiscrimination as the leveraging for full equality by LGBTQ individuals is occurring not only against First Amendment religious exercise arguments but also—now more fully it seems than before—within free speech challenges as well.  I write this not because such challenges weren’t previously couched in free speech theories, but because of the recent headline resurgence of free speech controversies.  At the same time, the national debate on free speech is taking place on campuses and elsewhere in the media, these cases are quickly being cemented into the larger national dialogue—sometimes violent—over identity, our collective history, and ultimately our national values.  Free speech is being used to prop up a reality that does not comport with democratic principles of liberalism and respect for human rights.  Rather, free speech is being used to reinforce a world of hierarchy stoked by false nostalgia and collective insecurity.

Not to mention, the vindication of the MHRA in favor of same-sex marriages and weddings in Telescope Media Group, Inc. v. Lindsey has historical resonance for LGBTQ rights.  Minnesota was where one of the earliest episodes of the struggle for marriage equality took place.  In 1970, two gay students from the University of Minnesota, Richard Baker and James McConnell, applied for a marriage license in Minneapolis.  After their application was denied, they sued.  Their litigative failures, from state to federal courts, unfolded all the way to SCOTUS where the Court in 1972 summarily dismissed their suit, Baker v. Nelson, with just one line: “The case is dismissed for want of a substantial federal question.”

Whatever outcomes are ahead, I don’t think we’re in one-liner territory anymore.

You may read the judgment here.  

 

 

 

 

The Windsor Legacy

by Prof. Jeremiah Ho

Last week, Edith Windsor passed away at 88.  As many will know, she was the plaintiff in U.S. v. Windsor, in which the U.S. Supreme Court overturned section 3 of the Defense of Marriage Act and consequently turned the recognition of same-sex marriages entirely back to the states.  It was a significant gay rights decision in 2013, both substantively and incrementally for the recognition of marriage equality that would come ultimately in 2015 with Obergefell v. Hodges.  Upon finding that DOMA offended constitutional federalism principles, Justice Kennedy’s decision in Windsor focused on the discriminatory objectives behind DOMA—how it was legislated from a place of animus toward same-sex couples and how that animus demeaned the dignity of those couples and their families.  These observations go to the substantive importance of Windsor.  In an incrementalist role, Windsor was a remarkable decision on the federal level because it was a rare moment in which same-sex relationships received a leverageable amount of respect.  That leverageable amount was expanded two years later when the Court extended the fundamental right to marry to same-sex couples.  Today, as the national LGBTQ rights consciousness moves toward sexual orientation antidiscrimination, Windsor remains as an important decision, providing insight as to how the law ought to regard sexual minorities.         

Before marrying in 2007 in Canada, Edith Windsor and Thea Spyer, had been a couple since 1963 and were formally domestic partners in New York City in 1993.  After their 2007 marriage, they lived in New York City, where New York state legally recognized their Canadian marriage.  When Spyer passed away in 2009, she left her entire estate to Windsor.  However, because DOMA had not recognize same-sex marriages on the federal level, Windsor was not qualified for the marital exemption under federal estate taxes.  After paying $363,053 in estate taxes from the IRS, she subsequently sought a refund and was denied the request.  Windsor then brought the suit that would eventually invalidate section 3 of DOMA.   

Like many of the canonical Supreme Court cases that have effectuated significant social changes, such as Loving v. Virginia, Brown v. Board of Education, Lawrence v. Texas, Roe v. Wade, specific human dilemmas and situations first prompted individual legal action.  But once such legal action solidified into actual changes in the law, the human drama at the core of these cases often fade into the background as the legal significance of precedence take on a bigger life—shaping and re-shaping doctrine, and gaining general applicability to American life.  That is both the benefit and the curse of constitutional legacy.

I didn’t know Edith Windsor personally.  What I know of her and her marriage to Thea Spyer are wrangled from what is now considered constitutional lore.  I once observed her from afar at a New York City Pride Parade:  she was waving her arms, smiling, and greeting onlookers like me on a very sunny summer day.  Her importance to the modern American gay rights movement is immortal.  While she herself was mortal.  Beyond the Windsor decision, what I have learned from her is something she had been often heard saying: “Don’t postpone joy.”

Within the long journey to the marriage equality decision in Obergefell, timing has been important.  As Bowers v. Hardwick had shown in 1986, the judicial and cultural mainstream had not yet accepted the idea of positive treatment of sexual minorities.  It wasn’t until after the visibility of sexual minorities had changed for the betterdid we start to see pro-gay decisions, such as Romer v. Evans and Lawrence v. Texas at the Supreme Court.  And yet, Edith Windsor’s mantra of not delaying joy did not stop her and Thea Spyer from experiencing what being human meant rather than delaying the joy of existence by waiting for injustice to be overturned.  In this way, Windsor demonstrated the balance between personal activism and progressive incrementalism, and the complicated ways in which sexual minorities have had to negotiate their personal experiences with the forces under the law that have act against them.  What she showed me was that while the law might still be processing what is the right thing to do, it is imperative not to give up on a moral and meaningful existence.       

SPLC’s 10 Ways to Fight Hate

by Jeremiah Ho

The timing of the Charlottesville incident earlier this month is a curious one for those of us returning to teaching also in the same month. Hate rhetoric against identity politics seems to have persisted during our collective summer break. The intense summer drama within U.S. politics allowed for heated rhetoric for all sorts of topics from global warming to health care—sustaining an extremely fractious tone across our current political theater. Charlottesville and its aftermath are the latest examples bearing that tone, voiced in part by those focused on hate and superiority toward others and their differences. Nationwide, I have heard the trepidation of colleagues—at various law schools and other college disciplines. The possibility that demonstrations by hate groups (whether stoked from within the student populations at their schools or from outside) will disrupt teaching and learning makes many of us cautious about coming back to school this fall. If there has been a perception that the 2016 elections gave permission for people to be uncivil, why wouldn’t that perception extend to the classroom?

My colleague, Professor Drew, recently posted her answer and solution to that rhetorical question in the law school context.  I add to her discussion more generally. A few days ago, I came across the Southern Poverty Law Center’s guidebook on responding to hate groups, Ten Ways to Fight Hate: A Community Resource Guide. It was released shortly after Charlottesville and many of you might have already seen it. For those who have not, I share the link to that guidebook here.

Although the guidebook is brief, I think it effectively outlines constructive activities to counter hate groups and events that propagate bias and hate. My observation is so because the ten things that the book suggests all target the underlying ways that hate arises in addition to confronting hatred itself. They include:

1. Taking action in the face of hatred.
2. Joining forces with others.
3. Supporting the victims of hate.
4. Speaking up.
5. Educating ourselves regarding hate groups.
6. Creating alternative outlets for hate group events.
7. Pressuring leaders.
8. Staying engaged.
9. Teaching acceptance.
10. Digging deeper within ourselves to disrupt our own biases.

In an earlier post this summer, I alluded to the importance of searching for truth in this moment. We who teach and write in academia must use our academic freedom to push for truth in a time when it seems that the politics of division have never before been so prevalent. Unscrupulous politicians have been elected, in part, by stoking the minds of many folks who have felt left behind by the political process. These political figures have distorted and stereotyped the images of certain other groups of people in order to scapegoat them for this country’s social and economic problems. Ultimately, such distortions, where successful for electing politicians, have also led to sustaining overt bias and hate. Understanding the rhetorical strategies and how they have distracted many from confronting the truth of our national issues allow us as teachers and experts to diffuse hate by showing how irrational much of that hate is and exploring the real sources of our country’s problems. Several of the above suggestions from the Southern Poverty Law Center targets the search for truth over hate.

I have also had a series of posts on civility as a means to maintain a truly meaningful dialogue on controversial issues. Some of the above suggested activities from the Southern Poverty Law Center also make us aware of civility—for instance, tactic number 6, which urges creating alternative outlets and events when hate groups stage their activities publicly. Violence and confrontation takes away the energy and focus from true and meaningful processing of issues and debates. Spending energy and time on an alternative venue is a civil way to perpetrate and explore issues and topics, such as race and gender equality.

A third virtue that the Southern Poverty Law Center encourages in its (not one, but ten) ways to fight hate is one that I have not mentioned before in my prior posts. And that is persistence. We must act persistently against incidents of bias and hate and encourage our students to do so. There is not just one constructive strategy to address hate and bias incidents; there are many. The horrific violence and hateful displays at Charlottesville were meant to break the persistence of values espoused by western liberalism such as freedom, equality, truth, justice, and democracy. In this narrative of American and western democracy, setbacks will happen from time to time, but they cannot stall us permanently from progress for all. Thus, persistence is another important virtue that the guidebook underscores to diffuse hate.

None of us can predict what the next campus incident of hate and bigotry will be after Charlottesville. But certainly, that thought has placed many of us on edge. Hopefully, the guidebook from the Southern Poverty Law Center is a beginning point for brainstorming what we can do for our students, our social institutions, and ourselves if and when something hateful occurs.

Civility Gives Us Hope

Co-Editor Jeremiah Ho completes his three part series on civility with this post:

by Jeremiah Ho

Sometime between my second post on civility and this present one, things changed a bit regarding our need for civility in the national consciousness.  First, we saw the shooting of Republican congressional leaders at a baseball field while practicing for the annual Congressional Baseball Game—a terrifying event, seemingly motivated by partisan hate, which resulted in the injury of Senator Steve Scalise, the House Majority Whip.  Immediately after that incident, acknowledgment for civility in the politics and national debate of our times emerged—but only for a few days.  Now, as the Senate is headed into this new chapter over heath care, the climate in politics is back to divisiveness. 

Another event was the Supreme Court’s decision of the trademark disparagement case, Matal v. Tam, which involved an Asian-American rock band, “The Slants,” who had been denied official trademark registration of their name because the USPTO had decided that such a name disparaged Asian-Americans. The rock band disagreed with the rejection of their application, claiming that their use of “The Slants” was not intended to disparage but was a form of empowerment and cultural reappropriation over the racial slur.  I had written about the case earlier this year after arguments were made at SCOTUS.   In that post, I had expressed my hope that the law would be settled in a nuanced way that allowed similar kinds of critique and empowerment in trademark registration but would also recognize true disparagement and reject offending trademarks accordingly.   

Now I don’t disagree with Justice Alito’s opening remark in his majority opinion in Matal v. Tam that “[s]peech may not be banned on the ground that it expresses ideas that offend.”  Based on that principle, I also can rationalize how he rendered that the disparagement clause of the Lanham Act violates the First Amendment.  His decision would ultimately allow “The Slants” to be registered as a mark, but also allow the Washington Redskins football team to continue to keep “Redskins” as its mark.  But there’s a difference that’s amiss in the Matal v. Tam decision between protecting speech that offends and has little value (and I don’t mean value as in dollar signs here, which is what some would argue is ultimate deciding value that matters), and protecting speech that offends but has the potential to provoke new and worthy ideas and stimulate debate that a society invested in a liberal project would be naturally inclined to accept.  With The Slants, their use of the racial slur as an Asian-American band gives them empowerment.  The irony provides postmodern or critical legal scholars ample commentary about Asian-American visibility in the American society, past and present, and changes for that visibility, whether or not it is happening today, whether or not—borrowing from the LGBTQ world—“it gets better” or “is getting better.”  With the Redskins, their use of the pejorative has much less critical power.  It’s a brand, a moniker that has been used for decades with lots of economic capital tied to it.  But it does not help us answer whether or not things for Native Americans have gotten better.  It reminds us of the onerous past.  Yes, it is offensive and mocking, but not contributing to a bigger social dialogue or to social value in general.        

If trademarks that disparage can be permitted in the marketplace, then negative, anti-progressive sentiments, such as hate, prejudice, and bigotry, can be commodified much more easily.  With the broadness of Matal v. Tam, there’s more permission now for that on such things like T-shirts, store fronts in shopping malls, and cans of beer at the grocery store.  Prior to Tam, we saw a lot of positive corporate commodification on social issues such as same-sex marriage.  The day that SCOTUS released Obergefell v. Hodges, many corporate entities, from national department store chains to credit card companies, placed “Love Wins” in their temporary marketing.  Will we now see more of the opposite?  I don’t know.  But it’s possible now that SCOTUS has seemingly given permission for incivility.   

As I see it, we are now more apparently within a situation that is similar to the old grammar-school lesson between the meaning and usuage of the words “may” and “can.”  Just as you can do something, doesn’t mean you may do it.  Or perhaps the situation is closer to the difference between “can” and “ought.”  Just because you can say certain things, doesn’t mean you ought or should to say them.

If that’s the case, then in the aftermath of Matal v. Tam, again it’s civility and prudence in practice that’s the tiebreaker.  There will be financial considerations for some businesses that will restrain them from creating disparaging marks.  But an ethics of civility might also allow us to focus on what has social value or probe offensive ideas in ways that does not take us off track into hate and violence.  It would help groups within the current population process through their strong, visceral emotions and get to a place where they don’t feel so left behind so that the only way to change is to lash out at others or pass laws that lash out on their behalf (see for instance, the Texas anti-LGBTQ Bill SB3).

Because one thing that civility encourages is the search for authenticity and it places authenticity over immediate, rash, and reactionary inclinations.  Civility is what allows a writer and activist such as James Baldwin to say “I am not your negro” and to debate what that means in hopes to convince others to change existing inequalities in our world.  Originally, this part three on civility was going to feature a review of the recent film I Am Not Your Negro based on Baldwin’s unfinished book, Remember This House.  The importance of civility features in the background of the film—in part to show what happens when there is no civility in national debates but also the limitations of civility if it is not fully engaged in society.  I wholeheartedly urge people to see this film if they have not already done so.  The film is a good example of how civility fosters the authenticity of subordinated groups in expressing truth when they are often marginalized by the dominant group and when their journeys or statuses are mischaracterized inadvertently by the most well-intentioned progressives.  Within diversity, civility plays a necessary element to allow authenticity that leads to transcendence.  At the end of I Am Not Your Negro, Baldwin states to the camera in an interview clip that the future of race relations in America depends in part on a discussion within the dominant white culture on the constructed binary between whiteness (which Baldwin links to power) and blackness (which Baldwin characterizes with the “N” word).   Baldwin hints that it would be a dangerous, incendiary, subversive dialogue.  But the thought of that dialogue or rumination taking place in white culture—with the hope that it would result in some recognition of the wrongs against African-Americans in the past—implies that civility would play a part in starting that rumination and facilitating it toward a progressive end.  Otherwise, such a dialogue is not a non-starter and you can’t reach authenticity.  Thus, civility is what props up the continued underscoring of dignity in human rights debates.  Without civility, there is singular chaos and violence, and dignity would not be perceived in ways that authentically allows for the inherent worth of human beings.  Rather dignity would be defined relative to a hierarchy promulgated by a dominating group.  Civility gives us hope.