Wednesday, June 10, 2020
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 19th and early 20th 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.
Wednesday, May 27, 2020
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.
Tuesday, May 26, 2020
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.
Monday, March 23, 2020
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.
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.
Thursday, June 20, 2019
This year’s June LGBTQ Pride Month is distinctive because it marks the 50th 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 30th 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?
Monday, April 8, 2019
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 11th 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.
Wednesday, December 26, 2018
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.
Sunday, April 1, 2018
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.
Wednesday, February 28, 2018
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 19th 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 19th 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” 19th 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.
Monday, September 25, 2017
Keep the Cameras Rolling: Photographers Lose in Challenge over Refusal to Service Same-Sex Weddings under Minnesota’s Human Rights Act
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.
Monday, September 18, 2017
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.
Monday, August 28, 2017
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:
- Taking action in the face of hatred.
- Joining forces with others.
- Supporting the victims of hate.
- Speaking up.
- Educating ourselves regarding hate groups.
- Creating alternative outlets for hate group events.
- Pressuring leaders.
- Staying engaged.
- Teaching acceptance.
- 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.
Thursday, July 27, 2017
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.
Monday, June 26, 2017
By Jeremiah Ho
Earlier this month, I was invited to speak on a panel at the Northeast People of Color / CAPALF Conference at Brooklyn Law School. Before I had gotten involved, the panel was already curiously titled, “True Grit: Academic Freedom, Campus Activism, and the Corporate University.” My co-presenters were Christian Sundquist, Anthony Farley, and Peter Halewood—all terrific faculty members from Albany Law. We each shared our variations on a theme regarding academic freedom, particularly in the privatization of universities. As summer is upon us and as many of us in the academy do our writing at this time, I thought it could be pertinent to underscore a few points from that talk in terms of upholding academic freedom in this raucous political and legal period in our present history and its implications for us in the academy on human rights at home (and abroad).
In a Los Angeles Times article this week, a White House spokesperson noted the disinterest in “abstract notions of human rights” that this current presidency harbors above other social and political agendas. (Link to full article here.) The White House might not show much interest in upholding broader human rights narratives but that does not make the normative and philosophic goals of human rights any less important. Particularly in this age of giant narrative shifting, our continued critique of the stories, viewpoints, and rhetoric that are trying to engage the American public to think differently, for better or worse, is essential. Our critique relies on our freedom in the academy to make extramural utterances. In my view, the more we use it meaningfully and responsibly, the more we sustain it from encroachment.
As our national narrative is being shifted away from cultural pluralism and democracy toward nationalism, subordination, and authoritarianism, academia has an institutional place to judge that narrative. 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.”)
David Brooks had a great article about alienation of the base in the New York Times op-ed section last month. (Link to full article is here. And this plot-line for narrative shifting was something that has been noted by others. (Link to full article is here.) This strategy is not something I made up.
In terms of critique, our role at universities is to point out the exaggeration in the narrative change—to repeatedly point to the truth through our capacity to engage and participate in extramural utterances that are backed by research, possibly revealed in moments of activism. In part, as instructors and thinkers, this is our role: to challenge the exaggeration. Academic freedom fulfills our roles by providing us protections within the university.
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.
But within the privatizing practices at many colleges and universities, there are erosions of academic freedom that are timing well in this political climate of narrative shifting. The seemingly neoliberal focuses on the bottom line redirects the purpose of the university from education with critical knowledge as a public good in mind to applied knowledge that ensures post-grad marketability. That potentially shrinks the scope of academic freedom in the traditional sense. Because to some (such as Stanley Fish), our academic freedom must fit the contours of the job. If we are just here to graduate our students so that they can brand themselves for employment, rather than also inculcating them to the resonance of adult life and public citizenry, then our academic freedom narrowly fits that and only that premise. Stay within those contours and you’ll be a good citizen. Cross over and you’ll be zapped. Now this is not a view of academic freedom that I agree with because I think of critical knowledge and education as a common good and not a private entitlement is what the university is ultimately for. But it’s not hard to think that those moving the wheels of corporatization in colleges and universities will try to shrink the scope of academic freedom because the extramural utterances reflecting critique no longer fits whatever corporate purpose of the university we’ve reached. If that happens, then our role in judging new narratives is diminished because the erosion of academic freedom will render us unable to fully speak about the truth.
So for those academic colleagues who are writing, researching, or presenting on the topics that enlighten about human rights—whether in concrete or “abstract” notions, whether in discussions on certain social issues or otherwise—understand that your work is two-fold. First, you are furthering the substantive ideas and solutions in those areas of law, society, and politics that are in the public courts of debate. We definitely need that work at this time. Secondly, you are exercising and (hopefully) maintaining the scope of academic freedom in a free and liberal society. Thus, no matter how hard the work seems, note that there is a noble undercurrent in your early-morning, late-night, between child-care, seemingly-daunting, under deadline endeavors.
At the NEPOC/CAPALF panel, I suggested a further idea of protecting academic freedom in this age—which is to play up the importance and relevance of our research and activism to one of the important stakeholders in the corporatized university: our students. The purpose would to be stoke a demand for our research and scholarship that would underscore critical knowledge as a public good. Now, I’m still a bit skeptical about the narrower contours of this idea because it could possibly lead to a commodification of our academic freedom, which is dangerous and problematic and playing right back into the neoliberal practices of universities. I’m still tinkering how it would play out. That’s my project this summer.
But for now (and forever), keep writing!
And stay tuned for my next piece in July, which will offer part three of my series on civility.
Monday, May 29, 2017
Editors' Note: This is the second part of Professor Jeremiah Ho's three part series on Civility.
It’s been over a month since my last blog posting here—(see “Civility Matters”). That posting was the first in a three-part installment on civil discourse in this seemingly new age of political and cultural rhetoric. I say “seemingly” because this new age could all just be temporary—just a detour in our collective political consciousness. Nevertheless, with this posting, I usher in the second installment on civility, which focuses on political correctness as a strawman for getting rid of civility in public discourse.
In a way, the phrase “political correctness” was created to represent a biased take on the practice of civility and has, since the early 1990s, been used repeatedly by some to displace civility in the sphere of public discourse. Arguably as a product of post-modern rhetoric, the idea of “political correctness” has been expanded into a hyperbolic threat to free expression. The treatment is post-modern in the sense that “political correctness” is one of those ideas that looks great from a distance, but the closer you get and the more obsessively you scrutinize it, the more unrealizable it gets. The idea breaks apart. So that now, eyes roll at the sound of the phrase. It signals a mode of forced inauthenticity—that people must behave in a muted, less truthful way if they abide by the codes of political correctness, a way that is claimed to be stifling to individual thought. As a result, the logic would be that we all must eschew political correctness. We must put it in “air quotes” when we mention it aloud. We must believe that it is an evil, rather than a good.
Of course, to this end, it has been civility that has been eroded and displaced, as a result of eschewing “political correctness.” The “authenticity” that was preserved has produced speech that is free but also has been revealed to be emotional and reactionary. And what does it show when people who are trying to be “authentic” have to go through the trouble of reshaping the idea of civility into “political correctness” in order to say what they want to say? This move itself is inauthentic.
And there lies a solution to bringing ourselves back to civility. We must start calling out that move. I would harken that political correctness is a fiction with a dangerous purpose, a strawman set up to elude true and productive public discourse. It’s time to pull down that charade.
In this regard, there was an example of a missed opportunity a few weeks ago when Ann Coulter pulled herself out of a scheduled speaking engagement at U.C. Berkeley after protestors threatened violence on the campus. In response, Coulter remarked that “it was a sad day for free speech.” Coulter’s ideas generally abandons “political correctness”—calling her “politically incorrect” according to the standards of those problematic definitions of political correctness is likely not inaccurate. But outraged protestors silenced her before she was even able to speak, allowing her the opportunity to wave a broken badge of free expression, which she did. Instead, what could have occurred was the Coulter speech itself—perhaps incendiary to many on the left, including to yours truly—followed by reasoned opportunities for us all to investigate her views and ideas. To let her speak and see if what she says pass muster. If what she says do not pass muster, then her authenticity comes into question. In other words, we allow truth to gauge our civil discourse.
Our free speech rights are not absolute (remember fighting words?) and to believe that it gives us carte blanche to say whatever we may think without consequence is an outright abuse of that right. I spent part of my childhood in a country that was then governed by martial law and I recall an incident when my parents admonished me for asking, “Why does the president looks so old and scary on television?,” because of fear that our neighbors in the next flat might have overheard and mistaken this as ridiculing the government. Hateful speech may be permitted and there’s a lot of that these days, but what does that seek to accomplish except to delay actual purposeful discourse on the important issues in our present and future times. Hateful, uncivil speech can and will incite high emotion. But ideas also affect emotional behavior as well. And the ideas that affect us politically and socially must be backed by truth and reason. They must be authentic in that way.
It’s time to redirect toward civility. At a mildly dangerous effect, the hateful speech of our current political climate extends the emotional dwelling of an isolated, left-behind sensibility, but at its most dangerous, it encourages fake news, nationalism, unethical behavior, hypocrisy, subordination, and violence. It makes us an immoral society unable to respect each other’s dignity. On issues of political and cultural importance—e.g., immigration, human rights, economic inequality, health care, etc.—if being uncivil is the mode, than we are not just in political gridlock but a cultural one. We will be unable to take human beings (and human rights) seriously. We will not function as a healthy democratic society.
Tuesday, April 4, 2017
by Jeremiah Ho
While admittedly I’m not usually a huge follower of David Brooks’ conservativism at The New York Times, I do agree with his comments about the decline of our social capitalism here in the U.S. as we have become more isolated across ethnic, diverse, and class lines. Specifically, he observes that the source of such isolation is philosophical: “We chose the wrong philosophers,” he said to interviewer Robert Costa. As he elaborated further, Brooks remarked that we chose John Stuart Mill when we should have chosen Martin Buber, we chose Jeremy Bentham over Viktor Frankl, and likewise we chose Descartes over Saint Augustine.
For Brooks, Mill impressed upon us a very individualistic worldview, when Buber offered a more communitarian perspective. Frankl’s idea that people were motivated by a search for meaningful, moral lives have been ignored in the light of Bentham’s pleasure versus pain principles. Consequently, Brooks thinks that our society has become “too economic, too social sciency, and too utilitarian, and not enough moralistic.” Descartes reached for the cognitive and rational when Saint Augustine focused on the emotional. All in all, Brooks said, “And so basically we've turned into shells of ourselves and that's cut down on intimacy, and it's had these devastating social effects. But it's ideas that drive behavior, and I think we have some of the wrong ideas.”
One of these ideas, in my opinion, is about civility in public discourse. Instead of focusing on civility, many of us collectively—left and right—have been sidetracked toward the debate over political correctness as the way to confront or prevent marginalization of diverse viewpoints and visibility of particular issues. Particularly as I see that the civility versus political correctness issue affects the development of human dignity and rights issues, I am starting the first of three posts on civility and authenticity here on this blog.
Besides David Brooks’ interview on Charlie Rose, the other inspiration for this first of three blog posts on civility was Keith Bybee’s book, How Civility Works, which I picked up at the exhibition hall at AALS this past January. Bybee is the Paul E. and the Hon. Joanne F. Alper ’72 Judiciary Studies Professor of Law and Professor of Political Science at Syracuse University. The size of the book (80+ pages) makes it more a pamphlet. Yet, how many times in history have we seen pamphlets wield influence over the distribution of ideas? Through almost a cultural studies lens, Bybee’s book here examines the purported “crisis” (his quotes, not mine) of civility in American discourse by observing what civility means and the history of civility as it relates to public debates in American society.
What ends up very clear in How Civility Works is that civility, as a form of manners and a code of public behavior, can and has possessed a plurality of historical meanings as it has co-existed alongside our rambunctious American contrarianism (Chapter 2). But what Bybee examines further is the tension that civility has on individual liberty—exactly the individuality explored by John Stuart Mill—and its potential threat to inhibit First Amendment free speech. Although civility can inhibit free speech, Bybee argues that civility can also underwrite free speech by facilitating a means of communication that reflects good character and personal decency (Chapter 3). Such a means of communication through civility must embody authenticity, however, or risk a hypocritical exploitation of civility that leads to immoral behavior masked under false politeness; in other words, one’s civility must be real and that “realness” or authenticity is a moral virtue (Chapter 4). Finally, in order to fulfill civil discourse that is authentic but not overwhelming, Bybee suggests that discourse must utilize a balanced version of civility that not only sustains exchange of free ideas and promotes inclusivity but also is cautious of its chilling effects on free speech and reproduction of hierarchies (Chapter 5). Its paradoxes are also its virtues.
In sum, Bybee’s work here is prescient for recognizing how significant and importance functional dialogue is to a liberal society—and I mean “liberal” with a post-Enlightenment capital “L” and not necessarily “liberal” in its American political meaning. In the age of extremist ideas about populism and nationalism (ideas that can lead to marginalization, discrimination, and even violence), civility is sidestepped and reinterpreted as political correctness or seen as an inauthentic means of self-victimization that ought not to be given any credence. What does this have to do with human rights? Just watch and listen to the rhetoric in the Keystone pipeline debate, the tone of misogyny in women’s rights issues, or the political debates regarding transgender individuals and restroom use. The lack of civility is a first step in marginalization and denying the inherent humanity of different people and their views. It is also an assertion of power over another. Reading Bybee’s book is a must in this age of conflict and separatism.
My next post in this series will further address the topic of political correctness as a strawman for getting rid of civility in public discourse.
How Civility Works. By Keith J. ByBee. Stanford University Press. 2016. Pp. 80. $12.99.
Thursday, March 30, 2017
by Jeremiah Ho
Today the North Carolina state legislature voted to repeal HB2, the infamous bathroom bill from 2016 that restricted transgender individuals from using the public restrooms that reflected their gender identities. The repeal was completed with a compromise bill that was signed this afternoon by the new governor, Roy Cooper. The repeal was sought, in part, because of the economic threats resulting from big business boycotts in reaction to last year's bill. Observe that North Carolina still does not have antidiscrimination laws protecting LGBTQ individuals.
Here is the New York Times coverage.
This is the second time that threatened economic consequences have been effective in changing North Carolina policy that discriminated against members of the LGBT community. See our prior coverage.
Sunday, February 19, 2017
by Jeremiah Ho
Criticizing another’s garden—or perhaps wedding bouquet, here—doesn’t keep the weeds out of your own. The Washington Supreme Court has rendered a decision in the case of a florist’s refusal to provide flowers to a same-sex couple for their wedding. The florist had justified her refusal based on her religious beliefs.
The decision responds to allegations that the florist’s refusal to sell flowers to a gay couple, Robert Ingersoll and Curt Freed, for their wedding violated the public accommodations provision of Washington state’s antidiscrimination statute. Previously, the florist, Arlene Stutzman, had defended on First Amendment doctrines of free speech, religious exercise, free association, and hybrid rights, as well as free exercise of religious under the Washington state constitution. She and the floral shop (as corporate entity) had lost below and then appealed.
In 2006, Washington state added “sexual orientation” as a protected class. Also by state referendum, the state legally recognize same-sex marriages beginning in 2012. Although in almost every aspect, Stutzman, claimed narrowly that her justifications for refusal to sell to plaintiffs-respondents, Freed and Ingersoll, were based on her objections to a wedding ceremony that contradicted her religious beliefs and not the same-sex marital status or sexual orientation of the respondents, the court was not persuaded on such narrow grounds. Rather, the court reject such status-versus-conduct distinctions and observed that Washington’s antidiscrimination statute was mandated “to be construed liberally” to decide whether or not her refusal to sell was sexual orientation discrimination. The court also found that the antidiscrimination statute had no requirement for a balancing of religious rights against rights of members of a protected class.
All in all, the ways in which Stutzman legally couched her justifications on religious grounds were not new legal arguments in the court battles between religious freedom and sexual orientation antidiscrimination. The court’s ruling seems to pull the veil down on those tactics to reveal the strawman arguments based on blanket constitutional First Amendment guarantees that religious litigants make when defending against discrimination claims—i.e. religious belief arguments made by the perpetrators of the discrimination that artfully prompt either narrow or broad readings of their discriminatory conduct in order to obfuscate the discriminating nature. For instance, Stutzman narrowly rationalized her refusal to sell flowers as an objection to the wedding ceremony of same-sex couples based on religious grounds rather than a refusal to sell based their sexual orientation. The court declined to entertain that narrow reading by rejecting her conduct-versus-status distinction (same-sex wedding v. sexual orientation) based on recognition by the Washington state statutes that “all discriminatory acts,” including those that have direct or indirect results in any marginalization based on sexual orientation, is a violation. In other words, she couldn’t narrowly reinterpret her conduct to an objection against same-sex wedding ceremonies based on her religious beliefs in order to skirt violations under the anti-discrimination statute. She can’t conveniently “forget” the other half of that equation to dodge discrimination: the fact that the couple in this wedding happened to be gay. Talk about not denying Ingersoll and Creed their dignity and humanity.
Additionally, here’s an example of how Stutzman broadly construed her actions when it suited her. She defended her case by also claiming that the Washington state antidiscrimination statute violated her First Amendment free speech rights because making her sell her flowers to Ingersoll and Creed would have been a coerced endorsement of same-sex marriages that would counter her religious convictions. The court was not persuaded by this “compelled speech” argument because the commercial sale of her floral wedding arrangements could not be viewed as expressive speech “in a literal sense.” Rather, it was conduct that did not intend to communicate a message—i.e. it was not “inherently expressive” conduct that then could be coerced or compelled.
Last week’s decision in this case shows that a discriminatory party cannot use religious beliefs to argue, either narrowly or broadly, to skirt accusations of discrimination. One cannot in such ways hide behind religion by saying one’s religion led to a discriminatory act. It’s still discriminatory, even if it is religious.
But as her attorney alluded since the decision, a request for appeal to SCOTUS is forthcoming. So stay tuned.
Don’t toss that bouquet just yet.
Sunday, February 5, 2017
by Jeremiah Ho
For the past 34 years, I have lived as a first-generation American immigrant. On my own terms, I can recall the seminal moments along the path to citizenship: arriving at age six with visa status along with my family at LAX and seeing for the first time a person with blonde hair; at age 10 printing my name on my green card in such large capital block letters that the immigration officer wouldn’t stop teasing me; and finally, at age 17, noticing the size and layout of the INS clerk’s cubical where I would be sworn into citizenship moments later—a small, unassuming, and transactional space that looked more or less like a bank teller’s booth.
But those moments of legal transformation punctuate all the other important days of being an immigrant, which in my heart are the days that compliment and give any true meaning to my naturalization papers, my driver’s license, my passport, my voter ID registration, my Social Security card—all the documents and papers I’ve carried with me as proof of my American permanence. What happened on those other days are the days of my immigration: like spending the night of my first Halloween trying to make that holiday my own by reciting “Trick or treat” without knowing where the phrase came from or what it meant but only aware of its candy-lottery effect; or how an In-N-Out double-double cheeseburger always tasted more satisfying on hot Los Angeles afternoons while I sat parked behind the wheels of my Dodge Plymouth, my first car at sixteen, which had windows you had to roll down, a triangular dent on the front bumper, and a busted air conditioning unit; or slow dancing with my high school prom date in our last month of senior year and wondering if she could tell exactly how different I was from the other boys; or witnessing my first journal article being published during law school and keeping to myself the secret that it was my coming out essay; or that quiet July afternoon just weeks before I started teaching at the University of Massachusetts when I arrived in Rhode Island, where I currently call home—the farthest on this planet from central Taiwan that anyone in my family, past or present, has ever traveled to live.
Future generations in my family will talk about us in the way that some people brag about how they have ancestors from the Mayflower. I am lucky to have that distinction—to be that Mayflower generation for my family—and to embody the last real connection to the Old World, while embracing my present one.
Immigration is part of human rights at home. President Trump’s order last week, suspending U.S. refugee entry for “nationals of countries of particular concern,” which applies to citizens of seven specifically-named Muslim-majority countries, contradicts the spirit and concept of immigration in the U.S. It is also a contradiction that we as a country have seen before.
In 1882, the U.S. passed the Chinese Exclusion Act, which was the first law to prevent a particular ethnic group from immigrating to the U.S. As a result, until the 1940s, persons of Asian descent were barred from becoming naturalized citizens in this country. In addition, responding to Japan’s attack on Pearl Harbor, the U.S. government, via presidential executive order, authorized the mass incarceration of Japanese-Americans, including U.S.-born citizens, on a claim of national security. On a personal note, the race-track in my hometown of Arcadia, California—the famous Santa Anita Race Track—had once been converted during WWII into the largest assembly center for Japanese Americans on their way to those internment camps. And had Congress never dismantled the Chinese Exclusion Act, my post here and now would not be possible.
In 2011 and 2012, Congress apologized for the Chinese Exclusion Act. Decades after WWII, a Congressional commission deemed the Japanese-American internment an injustice that was prompted by “racial prejudice, war hysteria, and the failure of political leadership.” In 1988, the Civil Liberties Act was passed to give monetary reparations and apologies to surviving Japanese-Americans who had been interned. We have traversed so far, and yet this present state of events seems to prove otherwise. We have made these missteps before. Why do we succumb to fear so easily? Last week’s executive order may harm our interests abroad by allowing terrorist groups to propagate the false impression that U.S. is at war with the Muslim world.
In addition, a lesson from 19th-century Chinese history reminds us that in a time of globalization and exchange, nationalistic hubris that motivates a desire for isolationist behavior will eventually harm a society. It is well known that one of the downfalls of the Ching dynasty was the psychological unwillingness of Chinese rulers to see past their own national and cultural pride in order to acknowledge the potentials of foreign powers. Their narrowmindedness crept into policy and rule, which kept the Chinese from advancing into the 20th Century politically and economically until only the decades of recent memory. Immigration and travel is what makes the U.S. strong and a leader in the world because the pluralism and diversity we gather from other countries keeps us current and on the cutting edge. It’s what has always helped to make America great.
We need real immigration reform that is in step with the spirit and tradition of the American experience and asylum. The executive order banning immigration and travel of individuals from certain countries in the Middle East harbors inconsistency from that spirit and tradition. We need to move beyond singling out individuals for their religion or national origin. We must not allow ourselves as a society to live in the dangerous space between pride and fear.
Wednesday, January 25, 2017
by Jeremiah Ho
Last week, the Supreme Court heard Lee v. Tam, a case in which an Asian-American rock band that calls itself “The Slants” is challenging its unsuccessful trademark registration application at the U.S. Patent and Trademark Office. (Arguments may be heard here.) At issue is whether the PTO’s determination that “The Slants” is disparaging under the Lanham Act correctly disqualified registration as a mark. As an attorney, the legal aspects of the case are fascinating enough. But as an Asian-American gay man, I find the language aspects of the case truly mind-boggling.
Of course, as a child—particularly when I first arrived in the U.S. in the 1980s—I certainly have been on the receiving end of racially-charged slant-eyed gestures on the school playground from my all-American classmates. As an adult, I think back on moments such as that or episodes of being asked by other children whether I had cat for dinner the night before as unwelcoming gestures that perhaps every person of color or minority status have had to endure in some form or another.
What Simon Tam, the band leader of The Slants, was trying to do was to overcome those moments of victimization. In a New York Times Magazine article that ran last week, Tam claimed that his band tries to celebrate the Asian-American experience and the name was a way of reappropriating the slur—in much the same way that other groups such as Dykes on Bikes or N.W.A. have done in the past. Already, the Federal Circuit had sided with Tam, finding that the disparagement clause of the Lanham Act was unconstitutional based on viewpoint discrimination theories.
Technically, Section 2(a) of the Lanham Act (the disparagement act) prevents the registration of trademarks comprised of “immoral, deceptive, or scandalous matter[,] or matter which may disparage or falsely suggest a connection with persons, living or dead, institutions, beliefs, or national symbols, or bring them into contempt, or disrepute.” In effect, Section 2(a) has blocked the registration of many trademark applications in the past that had contained racial slurs, swear words, and arguably vulgar designs since the act’s post-war inception.
What complicates this case even more is to see what can be gained if the disparagement clause under the Lanham Act is found unconstitutional by SCOTUS altogether for reasons of vagueness or for contributing to viewpoint discrimination by the government. The Lanham Act, governing trademark issues, was not designed as a challenge to the First Amendment by its drafters. Rather the Lanham Act regulates unfair competition as it pertains to trademarks and intellectual property. If the disparagement clause is found to be unconstitutional for reasons of vagueness or viewpoint discrimination or otherwise, wouldn’t such a ruling allow an organization such as the Washington Redskins to legitimately register and claim rights to a mark that has disparaged and is disparaging of Native Americans?
Perhaps the term “disparage” ought to be redefined to skirt viewpoint discrimination, but also include the subtle uses of language—subtleties that allow for instances of reappropriation or reclamation of a controversial term, such as the one Tam is attempting to reclaim, versus outright use of a slur in a mark that would legitimately marginalize a certain group of people, such as in the Redskins situation. (Application of The Redskins mark was recently rejected, but a SCOTUS ruling that rids the disparagement clause could reignite attempts at a post-Lee v. Tam application.)
Although personally I don’t like the use of slurs—whether linguistically as a weapon to put down someone else or as a symbolic form of reappropriation—I see the value of what Tam was doing by giving his band the name, The Slants. I can draw the analogy to an example of an oppressor using a knife as a weapon to physically subdue another human being. The knife here can assault, victimize, and rob another person of his or her dignity. Likewise, so can an oppressor’s use of racial slurs and hate speech upon a person who belongs in a group in which the slur or speech disparages or mocks. One way of viewing Tam’s use of The Slants is as if the victim, once held at knifepoint, has now taken back the knife and is using it on him- or herself. But that view misses the point (all puns intended) of reappropriation. Instead of the victim using the knife on him or herself, the victim is using the knife in a way that both empowers the victim and also changes the character or the bluntness of the knife. Each use of the word “slant” by Tam blunts its meaning. Gradually, the knife becomes useless as a weapon. Similarly, the slur gains other utility and loses its racial significance. When that happens, it should be a sign of progress. At the same time, this perspectives shows how language is constantly fluid and how it can change over time.
One could—and I do amusingly—look at this case as one that demonstrates how clumsy and obtuse the law sometimes can be at approaching the ironies of life and civility. But in this political age, when civility is seemingly becoming a lost art, the urgency of this case is ever more apparent. I hope that SCOTUS will find a solution somewhere in middle that allows The Slants to be registered but rejects examples such as The Redskins.
One final note: during those first couple of months when I started school in the U.S. and several of my white elementary-school classmates would come up and perform their slant-eyed gestures at me, I would always wonder what they were trying to do. It wasn’t until much later that I learned that such gestures were racial slurs. (And who’s to say that my first-grade counterparts knew any better or worse?) But I do remember that at that time, when I was brand new to this country and hardly spoke any English, I would see kids making their gestures at me and think to myself, “Boy, these American kids are so weird.” The joke was always on them.
Oral arguments for Lee v. Tam is here: https://www.oyez.org/cases/2016/15-1293.