Human Rights at Home Blog

Academic Freedom: Use It Or Lose It

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. 

Political Correctness v. Authenticity

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. 

Civility Matters

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.

    

 

Breaking News: North Carolina Repeals HB2

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.

No Flowers for You: The Washington Supreme Court Sides with Same-Sex Couple in Flower Shop Case

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. 

Immigration Makes America Great

 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 19^th-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 20^th 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. 

My Slant on Lee v Tam

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.

The Meaning of Christmas

by Jeremiah Ho (Ho, Ho)

Since the secularization of the holiday season (and arguably before that), Christmas and all the other end-of-the-year holidays we have grown to celebrate have collectively transcended beyond the celebration of a religious icon.  Ultimately, the holiday season has become one opportunity to reflect on humanity beyond the religious—does anyone remember the 1980s all-star celebrity charity song, Do They Know It’s Christmas?

This opportunity descended upon Minnesota’s Mall of America earlier this month when the mall operators hired Larry Jefferson to be one of their seasonal mall Santa’s.  Jefferson is  not a newcomer to playing the role of Santa Claus.  He has been playing Santa for over 20 years.  The picture of him on a recent online NPR article shows that he’s got a bushy silvery beard and jolly great smile.  He’s got the red velvet suit with the traditional white furry trims.  Back in August (on Santa’s summer downtime) a CBS Sunday morning article on the yearly Discovery Santa Conventions interviewed him as a participating attendee.  For all intents and purposes, Jefferson is a bona fide practitioner of the so-called “Santa Arts” (my own phraseology here).  I’m convinced that he probably even knows (or can probably profess to know) if you’ve been naughty or nice this year.

The only thing is, Larry Jefferson is African American.  He’s the first African-American Santa that the Mall of America has ever hired.  This observation is why Jefferson as Santa received some notoriety and coverage—first, as perhaps a symbol of late-coming progressiveness by the mall authorities, and then secondly, as a figure of some racist backlash by the public for deviations from the traditional white Santa representation.  According to HuffPost, local Minnesota news outlets who asked the public to weigh in on the hiring of Jefferson as Santa received such insulting, racist comments that those surveys had to be halted. 

News of this prompted the Asian-American actor, George Takei, to take to Twitter on a December 3, 2016 posting that while observing people’s reactions, he was reminded that during World War II, “in our internment camp he (Santa) was Asian.  So there.”     

So there is right.  Although Santa Claus is a figure borrowed from various European folklore traditions and has now been reinterpreted in the United States, Santa is not just a figure but also an idea.  After all, having participated in various secret Santa exchanges over the years, haven’t I myself, an Asian-American man in his thirties, played “Santa” too? 

“Santa” transcends physical attributes and ought to go to the heart of humanity.  To look at Santa from the exegetical perspective—to require the rosy white cheeks and the traditional Anglo connotations—is missing the point.  Larry Jefferson attributed those reactions to him as part of “the times in which we are living in.”  But the times we are living in has also included an African-American man in the role of U.S. president for the last eight years, as well. 

The backlash for “Black Santa” not just lacked Christmas spirit, but the human spirit as well.  On the personal level, it left Jefferson without dignity in his role to bring cheer to families at the Mall of American.  On the bigger level, this Bah Humbug  threatens respect for humanity if these "are the times we live in."

Links mentioned about Larry Jefferson’s story are below:

NPR: http://www.npr.org/2016/12/09/504930200/black-santa-claus-is-a-hit-in-the-mall-but-faces-an-online-backlash

CBS Sunday Morning: https://www.youtube.com/watch?v=KU7kO0AUS1U

HuffPost:  http://www.huffingtonpost.com/entry/black-santa-racists-freak-out_us_5844fb5ee4b09e21702f631b

Gay Weddings Revisited

By Jeremiah Ho

 

Today, the Washington Supreme Court hears the case of a florist who refused service to a gay couple for flowers for their wedding.

The case is Robert Ingersoll, et al. v. Arlene's Flowers, Inc., et al. and the link to the briefs of parties and amici is here. The florist, Barronelle Stutzman, of Arlene’s Flowers in Richland, Washington, had denied providing flowers for the couple’s wedding based on concerns that doing so would have violated her religious freedom.  However, last year, a lower court judge had ruled that Stutzman’s refusal violated Washington’s anti-discrimination bill.  The Washington State’s Attorney General Bob Ferguson is arguing on the gay couple’s behalf.   

Editor's note: This is an issue that is likely to come before the US Supreme Court after the "9th" is appointed.

The New Dignity Conversation

by Jeremiah Ho

 

I would agree with a recent NPR article online about the disjointed, state-by-state progress for gay rights in 2016, a year after marriage equality had prevailed at the Supreme Court. (See 2016 Has Been a Mixed Bag for LGBT Politics)  In part, that’s understandable as we have been preoccupied with electoral politics since that time.  It's also very much in line with how the incremental politics of gay rights progresses in general when a state has obtained marriage equality.  Things slow down for a little bit for gay rights.

 

But that's not to say that this slowing is excusable.  The divisive Presidential election is over.  LGBTQ individuals still deserve the full equality and anti-discrimination protections that they do not yet fully possess.  In the year after marriage equality, we have seen the backlash toward LGBTQ people in various context from healthcare to bathrooms.  Last week, the most recent case to be taken up by the Supreme Court hopefully is our next wake-up to moving on with what is left to be done in fulfilling advances for sexual minority protections and rights under the Constitution.  The Gloucester County case, which we recently posted on, has now crystallized into our next step. However, several challenges do exist to affect whether or not a victory will be eminent for transgender individuals facing public discrimination over the right to access the bathroom that reflects the gender with which they identify. The composition of the High Court with only eight Justices is one possibility that whatever ruling they give will not necessarily be as solid as if there were a full Court of nine Justices.  What if the Court reaches a decision where the eight justices were to divide evenly on the doctrinal resolution of this issue?

 

Despite that uncertainty for doctrinal progress in that event, incremental politics of LGBTQ equality and rights advancement must continue to urge that sexual minorities are seen in the politics of dignity and respect.  The last major words that the Supreme Court had in regards to the rights of sexual minorities--meaning from the decision to extend the fundamental right to marry same-sex couples--were written in a politics and a connotation of subdued and restrained respect for same-sex couples.  Despite the legal significance for same-sex couples, the Obergefell v. Hodges decision couched their rights within a reverence for traditional marriage. Sure that did  give gay couples the right to marry. But it was done in a way that showed how much they qualified for traditional marriage--instead of saying that same sex couples could create their own merits for unions without qualification. But only because under equality principles they always should have been allowed to do so.

 

Now with transgender bathroom rights, we have a new opportunity to use the existing dignity rhetoric from cases such as Lawrence v. Texas (and not the marriage cases, Windsor or Obergefell) to articulate the respect for sexual minorities for inherently who they are.  Even if doctrinally the advancement for LGBTQ anti-discrimination were to receive a less stable and lasting treatment because of a gridlocked 4-4 decision by the High Court, I hope that the conversation about the right for transgender individuals to choose their own bathrooms will be framed within a discussion of respect and dignity for inherently who they are and not the respectability rhetoric left over from Justice Kennedy's marriage equality decision.  A new conversation of respect and dignity in this context free from the marriage decisions would hopefully give us a restart toward the preferred inherent dignity and respect that will more easily move us to further progress for the advancement of sexual minority rights without and away from the lens of heteronormativity.  Even if that is the only thing that comes from the Gloucester case, I would find that as a welcomed victory because it'll set us up better for the next challenge.

Donald's Smart Ways

contract images - Google Search

By Jeremiah Ho

 

In teaching American contract and remedies law in the years after the Great Recession, I have often encountered several examples from the U.S. mortgage crisis that seemed to broaden the scope of traditional contract doctrines, particularly in the realm of excuse doctrines.  What does this have to do with human rights?  Well, as I see it, it would not be far-fetched to suppose that we can derive endless lessons—individually and societally—from examining the mortgage crisis of the last decade.  From deceptive lending practices to the use of robo-signers, there are many instances that show us how we humans can be our own worst enemy and how we make choices that eventually prompt catastrophes of global impact.  We do not need natural disasters to impede us; our legacy sometimes says it all.  Generally-speaking, in contract law, that old classic adage, pacta sunt servanda, stands as the way in which contract law embodies a type of absolute liability—basically: if you break the contract, you pay for it.  But in the Great Recession, it seemed as if pacta sunt servanda was stretched—at least in commercial mortgages to further perhaps a “less absolute” system of contractual enforcement.  And the example started and ended with none other than, an example from Donald Trump.

 

The recent release of 3 pages of presidential candidate Donald Trump’s 1995 tax returns, showing—as he would claim it—how “smart” he was in averting taxes by claiming a $916 million dollar loss reminds me of how he dodged his mortgage default suit with Deutsche Bank during the Great Recession: by attempting to excuse himself against his creditors on a $640 million construction loan obligation for a Chicago high-rise through a commercial impracticability argument likened the Great Recession to a force majeur—essentially to an act of God.  Thus, in his argument, it would not be commercially practicable for him to complete his mortgage obligations because he could not have anticipated that such a world-wide economic downtown would have impaired his ability to honor those obligations to pay back the loans.  In contract law, breaching parties on a contract, who usually try to excuse themselves based on a reasoning that bad economic market conditions are like acts of God, get laughed out of court.  Even during bad market conditions, if you break it, you still have to pay for it.       

But the court here bought his argument.  Trump was excused.  What about all of the defaulting homeowners who would not and could not have been allowed to use the same impracticability excuse and same argument of the Great Recession to get themselves out of terrible mortgage obligations that they took on in homeownership?  Or even the individual consumers who bought real estate from Trump during that time and could not repay?  Likely they would not have been able to take advantage of Trump’s reasoning and excuse themselves from defaulting because their individual mortgage agreements for condos or apartments were not near the gargantuan worth of $640 million.  Trump got away with it because of the commercial aspects of his agreement and because of the money involved.  But why should the size of someone’s purse-strings shut them out from possibly a just recourse?  It’s interesting that in the eyes of contract law, often there is so little room for economic and human dignity.

In a “change election,” in which both presidential candidates have talked about economic disparity, my hope is our candidates do mean to both act with economic integrity and not with the leveraging power of their bank accounts.  That is not always the “smart” way in the long run.  

Can Only Straight Women Be Infertile in New Jersey?

 By Jeremiah Ho 

 A new lawsuit has been filed just within the last few weeks in federal district court in New Jersey by one unmarried and two married lesbian couples against the state’s insurance commissioner.  Essentially the lawsuit is challenging the definition of the word “infertile” under the New Jersey’s insurance mandate for covering medical expenses associated with the treatment of infertility.  The case, Krupa v. Badolato, is an interesting one as the plaintiffs, who wish to conceive but are biologically infertile, are claiming that the current definition of “infertility” excludes them from coverage under the insurance mandate because of the definition’s reliance on “unprotected sexual intercourse” in determining who could be infertile. 

The plaintiffs claim that for qualifying as “infertile” for infertility treatment coverage the phrase “unprotected sexual intercourse” requires them to show that they had heterosexual intercourse for the requisite period but then failed to conceive.  They assert that such showing is problematical because it requires them to prove a failure to conceive after having unprotected sexual activity with male partners, which, as lesbians in committed relationships, was an impossibility to them.  As a result, each couple claims they were denied coverage for infertility treatments that ended up costing tens of thousands of out-of-pocket dollars.     

But beyond the monetary harms asserted in this lawsuit, it is the dignitary spin on sexual orientation and reproductive rights that catches one’s attention.  The plaintiffs here are suing under 14^th Amendment equal protection and due process theories.  First, the equal protection theory articulates that “because infertile women in same-sex relationships do not engage in sexual intercourse with men, they are left with no way to qualify as ‘infertile’ under the statute and its implementing regulations in order to trigger the mandate.”  Therefore, they situate themselves as a class discriminated based on their sexual orientation.”  The plaintiffs’ due process theory relies on a violation of their reproductive rights.

On either theory, the implications of furthering constitutional litigation over sexual orientation seem eminent.  From reading the complaint, the plaintiffs are plainly seeking leverage on the equal protection claim from Obergefell v. Hodges, but bringing the issue of protections for sexual orientation further by claiming suspect or quasi-suspect classification.  The case seems to raise questions about orientation that are ripe for a revisit after Obergefell.  First, the sexual conduct of these lesbian couples—or their lack of a type of sexual conduct—in regards to showing heterosexual unprotected sex conjures that old distinction of conduct that was permissible and conduct both expressive of sexual identity and simultaneously punishable by the law (remember Bowers v. Hardwick or its reversal in Lawrence v. Texas?).  Here, it seems possibly that the couples were punished for not having heterosexual sex in order to prove infertility.  Additionally, as it appears in the complaint, it seems as though they were punished for wanting to exercise their abilities to treat their infertility in order to improve their chances for having children (remember Griswold, Casey, and Wade?).  The connection from the plaintiffs’ scenarios and to burdens on reproductive rights could lead to an expansion of existing constitutional caselaw. 

But also, the plaintiffs seem to want a declaratory relief directly over sexual orientation, which they are possibly couching as something beyond conduct—rather “a core, defining trait that is so fundamental to one’s identity that a person may not legitimately be required to abandon it (even if that were possible, which it is not) as a condition of equal treatment.”  Other than immutability (as articulated above), the plaintiffs preliminary balance the other three Frontiero factors as well in favor of determining sexual orientation as a protectable trait under the Equal Protection Clause. 

Already the case is garnering attention from news outlets.  This will be a lawsuit to watch.

 
 

RNC - LBGTQ - And Human Rights for Sexual Minorities

by Jeremiah Ho 

 

When I watch the news in this current election cycle and see reports that the RNC platform includes condemnation of  marriage equality successes along with sentiments bolstering traditional marriage, I observe that the RNC seeks to forget the progress in LGBTQ rights from the last several summers, from U.S. v. Windsor to Obergefell v. Hodges.  However, I wonder if the rhetoric isn’t a bit stale.  After all, the ship is supposed to have sailed on the marriage issue.  Last November, the Williams Institute reported that nationally 486,000 same-sex couples were married since Obergefell.  I’m sure the numbers have risen since then.  Did the RNC forget what happened in 2015?

A platform that advances the extremist American exceptionalism that social conservatives desire   seeks to rehash the LGBTQ successes of the recent years—first, as a grudge and then more as an appropriation of the issue of sexual orientation anti-discrimination that stokes the base.  The evidence of such LGBTQ opposition in the RNC platform points to just the sort of partisan processing that is required for the idea of marriage equality—and by proxy, sexual orientation antidiscrimination—to finally set within the national imagination.  From an incrementalist perspective, this opposition is natural and must be played against the countervailing notions of progress and positive attitudes toward LGBTQ individuals in the public media right now.

 

Unfortunately, it is the Orlando gay latino nightclub attack that bookended the year of conversation regarding sexual minorities, stemming from Obergefell.  But from Kim Davis to the debate over bathroom bills and even to the anti-marriage rhetoric in the RNC platform that brings us into the fall elections, the way to read all of this anti-LGBTQ rhetoric must be  from the vantage point of human rights.  Out of the countervailing perspectives on sexual minorities must be a continual understanding that all of these anti-LGBTQ ideas, rhetoric, and advances hurt the essential human rights entitlements that sexual minorities deserve.  We need more media coverage on how to interpret the subtext of anti-LGBTQ rhetoric that results from the RNC platform and pulls away from human rights sentiments.

Additionally, the anti-LGBTQ rhetoric of the RNC platform provides an opportunity for social conservatives and similar anti-LGBTQ movements to harness back the surge to dignify sexual minorities.  Recently, Michelangelo Signorile at the HuffPost Queer Voices section posted an article demonstrating ways in which social conservatives, politically entrenched in the presidential elections, are manipulating the media to seem more “LGBTQ-friendly”. With a published RNC platform that denigrates recent pro-LGBTQ progress, I would agree with Signorile that any LGBTQ-friendliness offers a curious disconnect.  In any event, the progress in the last year has given much leverage for sexual minorities and LGBTQ groups to assert their own dignity and respect.  What ultimately must happen is public recognition that  anti-LGBTQ rhetoric, as currently exemplified by the RNC, is an ugly distraction, and a powerless, irrelevant stance on homophobia.  Thus, the human rights angle is a powerful one,  helped and advanced by  every success within sexual orientation anti-discrimination laws.  I hope we continue to ruminate about this critical human rights issue as both party conventions wrap up in this mid-summer, and as the nation prepares for the fall election.                     

Orlando - A New Perspective on the Anniversary of Obergefell

By Jeremiah Ho

For the LGBTQ community, this weekend and the coming week will mark the one-year anniversary of Obergefell v. Hodges, the pro-gay marriage equality decision by the Supreme Court.  What’s interesting about this moment one year later is not the focus on same-sex marriage controversy.  Such “controversy” is hopefully becoming more and more of a non-starter in terms of legality, but not, on the other hand, in terms of its evolving meaning. 

In a year’s time, we have seen county clerks protesting against issuing marriage licenses; we have seen judges refuse to obey the SCOTUS ruling.  But those dissident voices toward same-sex marriages are gradually quelling.  The rights movement for LGBTQ individuals then shifted toward antidiscrimination and more notably restroom accommodations for transgender people.       

The Orlando gay nightclub shooting—as interpreted by many—takes the moment past discrimination and into the realm of hate.  Because of this shift, it is also a moment to add nuance to the existing sense of what dignity means for the LGBTQ community.  Among other purposes, Justice Kennedy’s opinion in Obergefell and Windsor used dignity for drawing a sense of similarity to opposite-sex relationships. In that way, as I’ve written before in other HRAH posts, using dignity to draw similarities between LGBTQ and non-LGBTQ relationships had a side effect of subordinating LGBTQ identities and diversity in order to achieve the legal argument that denying same-sex couples the right to marry was an act of inequality.     

But post-Obergefell and post-Orlando, the examination of LGBTQ lives can take on dignity in a different way that should affect the next time dignity is used in legal argumentation within a forum to push forward for antidiscrimination.  This carries insight for furthering the notion that gay rights equals human rights.

Recently, whenever a terrorist incident has occurred, the ultimate response beyond the vigils and the symbolic tributes has been to return to normal and persevere with our daily lives as quickly as possible:  to ignite courage and fly on an airplane, to walk past fear and ride to our jobs on the subway, to rally at extraordinary feats of human athleticism at national sporting events.  But what does “return to normal” mean to the community that was attacked two weekends ago, a community that has historically and intrinsically called itself “queer”?  A lot can be said about living normally:  LGBTQ people too take the subway.  They fly on airplanes as well.  They can be known to tailgate.  “Normal” means something deeper here.  “Normal” is gay, queer, straight, and everything in between.  “Normal,” in effect here, means dignity. 

Indeed, this act of terrorism targeted people, in part, because of who they were.  In the middle of Pride month, this gunman held up and silenced his victims in an act of terror—perhaps intending to bully us all—LGBTQ or not—collectively into a closet, where we hold ourselves hostage so no one sees us, where we trade who we are for the false sense of safety, where we can’t dance openly on a Saturday night.

But since the tragedy, the opposite of fear has been the massive response for recognizing gay people and what it means to have this shooting take place at a gay nightclub—a historically safe place for LGBTQ people to be “normal,” to be who they are.  Going forth, this moment should reveal that while people were targeted for their differences, the result was that their humanity and dignity—what we all intrinsically share—was ultimately placed on assault.  Somehow, this side of dignity must be retained in our legal minds and infuse the cases that rely on dignity to further articulate the rights of LGBTQ people.          

For the LGBTQ community, this weekend and the coming week will mark the one-year anniversary of Obergefell v. Hodges, the pro-gay marriage equality decision by the Supreme Court.  What’s interesting about this moment one year later is not the focus on same-sex marriage controversy.  Such “controversy” is hopefully becoming more and more of a non-starter in terms of legality, but not, on the other hand, in terms of its evolving meaning. 

In a year’s time, we have seen county clerks protesting against issuing marriage licenses; we have seen judges refuse to obey the SCOTUS ruling.  But those dissident voices toward same-sex marriages are gradually quelling.  The rights movement for LGBTQ individuals then shifted toward antidiscrimination and more notably restroom accommodations for transgender people.       

The Orlando gay nightclub shooting—as interpreted by many—takes the moment past discrimination and into the realm of hate.  Because of this shift, it is also a moment to add nuance to the existing sense of what dignity means for the LGBTQ community.  Among other purposes, Justice Kennedy’s opinion in Obergefell and Windsor used dignity for drawing a sense of similarity to opposite-sex relationships. In that way, as I’ve written before in other HRAH posts, using dignity to draw similarities between LGBTQ and non-LGBTQ relationships had a side effect of subordinating LGBTQ identities and diversity in order to achieve the legal argument that denying same-sex couples the right to marry was an act of inequality.     

But post-Obergefell and post-Orlando, the examination of LGBTQ lives can take on dignity in a different way that should affect the next time dignity is used in legal argumentation within a forum to push forward for antidiscrimination.  This carries insight for furthering the notion that gay rights equals human rights.

Recently, whenever a terrorist incident has occurred, the ultimate response beyond the vigils and the symbolic tributes has been to return to normal and persevere with our daily lives as quickly as possible:  to ignite courage and fly on an airplane, to walk past fear and ride to our jobs on the subway, to rally at extraordinary feats of human athleticism at national sporting events.  But what does “return to normal” mean to the community that was attacked two weekends ago, a community that has historically and intrinsically called itself “queer”?  A lot can be said about living normally:  LGBTQ people too take the subway.  They fly on airplanes as well.  They can be known to tailgate.  “Normal” means something deeper here.  “Normal” is gay, queer, straight, and everything in between.  “Normal,” in effect here, means dignity. 

Indeed, this act of terrorism targeted people, in part, because of who they were.  In the middle of Pride month, this gunman held up and silenced his victims in an act of terror—perhaps intending to bully us all—LGBTQ or not—collectively into a closet, where we hold ourselves hostage so no one sees us, where we trade who we are for the false sense of safety, where we can’t dance openly on a Saturday night.

But since the tragedy, the opposite of fear has been the massive response for recognizing gay people and what it means to have this shooting take place at a gay nightclub—a historically safe place for LGBTQ people to be “normal,” to be who they are.  Going forth, this moment should reveal that while people were targeted for their differences, the result was that their humanity and dignity—what we all intrinsically share—was ultimately placed on assault.  Somehow, this side of dignity must be retained in our legal minds and infuse the cases that rely on dignity to further articulate the rights of LGBTQ people.          

For the LGBTQ community, this weekend and the coming week will mark the one-year anniversary of Obergefell v. Hodges, the pro-gay marriage equality decision by the Supreme Court.  What’s interesting about this moment one year later is not the focus on same-sex marriage controversy.  Such “controversy” is hopefully becoming more and more of a non-starter in terms of legality, but not, on the other hand, in terms of its evolving meaning. 

In a year’s time, we have seen county clerks protesting against issuing marriage licenses; we have seen judges refuse to obey the SCOTUS ruling.  But those dissident voices toward same-sex marriages are gradually quelling.  The rights movement for LGBTQ individuals then shifted toward antidiscrimination and more notably restroom accommodations for transgender people.       

The Orlando gay nightclub shooting—as interpreted by many—takes the moment past discrimination and into the realm of hate.  Because of this shift, it is also a moment to add nuance to the existing sense of what dignity means for the LGBTQ community.  Among other purposes, Justice Kennedy’s opinion in Obergefell and Windsor used dignity for drawing a sense of similarity to opposite-sex relationships. In that way, as I’ve written before in other HRAH posts, using dignity to draw similarities between LGBTQ and non-LGBTQ relationships had a side effect of subordinating LGBTQ identities and diversity in order to achieve the legal argument that denying same-sex couples the right to marry was an act of inequality.     

But post-Obergefell and post-Orlando, the examination of LGBTQ lives can take on dignity in a different way that should affect the next time dignity is used in legal argumentation within a forum to push forward for antidiscrimination.  This carries insight for furthering the notion that gay rights equals human rights.

Recently, whenever a terrorist incident has occurred, the ultimate response beyond the vigils and the symbolic tributes has been to return to normal and persevere with our daily lives as quickly as possible:  to ignite courage and fly on an airplane, to walk past fear and ride to our jobs on the subway, to rally at extraordinary feats of human athleticism at national sporting events.  But what does “return to normal” mean to the community that was attacked two weekends ago, a community that has historically and intrinsically called itself “queer”?  A lot can be said about living normally:  LGBTQ people too take the subway.  They fly on airplanes as well.  They can be known to tailgate.  “Normal” means something deeper here.  “Normal” is gay, queer, straight, and everything in between.  “Normal,” in effect here, means dignity. 

Indeed, this act of terrorism targeted people, in part, because of who they were.  In the middle of Pride month, this gunman held up and silenced his victims in an act of terror—perhaps intending to bully us all—LGBTQ or not—collectively into a closet, where we hold ourselves hostage so no one sees us, where we trade who we are for the false sense of safety, where we can’t dance openly on a Saturday night.

But since the tragedy, the opposite of fear has been the massive response for recognizing gay people and what it means to have this shooting take place at a gay nightclub—a historically safe place for LGBTQ people to be “normal,” to be who they are.  Going forth, this moment should reveal that while people were targeted for their differences, the result was that their humanity and dignity—what we all intrinsically share—was ultimately placed on assault.  Somehow, this side of dignity must be retained in our legal minds and infuse the cases that rely on dignity to further articulate the rights of LGBTQ people.          

For the LGBTQ community, this weekend and the coming week will mark the one-year anniversary of Obergefell v. Hodges, the pro-gay marriage equality decision by the Supreme Court. What’s interesting about this moment one year later is not the focus on same-sex marriage controversy. Such “controversy” is hopefully becoming more and more of a non-starter in terms of legality, but not, on the other hand, in terms of its evolving meaning.

In a year’s time, we have seen county clerks protesting against issuing marriage licenses; we have seen judges refuse to obey the SCOTUS ruling. But those dissident voices toward same-sex marriages are gradually quelling. The rights movement for LGBTQ individuals then shifted toward antidiscrimination and more notably restroom accommodations for transgender people.

The Orlando gay nightclub shooting—as interpreted by many—takes the moment past discrimination and into the realm of hate. Because of this shift, it is also a moment to add nuance to the existing sense of what dignity means for the LGBTQ community. Among other purposes, Justice Kennedy’s opinion in Obergefell and Windsor used dignity for drawing a sense of similarity to opposite-sex relationships. In that way, as I’ve written before in other HRAH posts, using dignity to draw similarities between LGBTQ and non-LGBTQ relationships had a side effect of subordinating LGBTQ identities and diversity in order to achieve the legal argument that denying same-sex couples the right to marry was an act of inequality.

But post-Obergefell and post-Orlando, the examination of LGBTQ lives can take on dignity in a different way that should affect the next time dignity is used in legal argumentation within a forum to push forward for antidiscrimination. This carries insight for furthering the notion that gay rights equals human rights.

Recently, whenever a terrorist incident has occurred, the ultimate response beyond the vigils and the symbolic tributes has been to return to normal and persevere with our daily lives as quickly as possible: to ignite courage and fly on an airplane, to walk past fear and ride to our jobs on the subway, to rally at extraordinary feats of human athleticism at national sporting events. But what does “return to normal” mean to the community that was attacked two weekends ago, a community that has historically and intrinsically called itself “queer”? A lot can be said about living normally: LGBTQ people too take the subway. They fly on airplanes as well. They can be known to tailgate. “Normal” means something deeper here. “Normal” is gay, queer, straight, and everything in between. “Normal,” in effect here, means dignity.

Indeed, this act of terrorism targeted people, in part, because of who they were. In the middle of Pride month, this gunman held up and silenced his victims in an act of terror—perhaps intending to bully us all—LGBTQ or not—collectively into a closet, where we hold ourselves hostage so no one sees us, where we trade who we are for the false sense of safety, where we can’t dance openly on a Saturday night.

But since the tragedy, the opposite of fear has been the massive response for recognizing gay people and what it means to have this shooting take place at a gay nightclub—a historically safe place for LGBTQ people to be “normal,” to be who they are. Going forth, this moment should reveal that while people were targeted for their differences, the result was that their humanity and dignity—what we all intrinsically share—was ultimately placed on assault. Somehow, this side of dignity must be retained in our legal minds and infuse the cases that rely on dignity to further articulate the rights of LGBTQ people.

v

The Irrationality of Anti-LGBTQ Legislation

by Jeremiah Ho

According to sources at the Human Rights Campaign, there are currently more than 100 anti-LGBTQ bills filed in 29 state legislatures across the country.  But the one bill that has gained the most notoriety in the national spotlight is North Carolina’s bill—HB 2—banning transgender individuals from using the bathroom of the gender with which they identify.  In the shadow of last year’s marriage equality victory, the controversy of the HB 2 has sparked conversation about transgender rights—a group within the LGBTQ umbrella that previously received the least amount of attention and the group that did not benefit from the repeal of Don’t Ask, Don’t Tell.

Given that one of iconic instances of discrimination that prompted the Civil Rights Movement was the segregation of public restrooms between white and other races, it feels as if the return to the restroom as the stage for discrimination symbolizes a regression from progressive politics.  The issue, however, is so much more complex than that.  As with racially-segregated public restrooms, the supporters tout a negative essentialist rhetoric that is firmly grounded in the politics of disrespect.  For instance, during the Civil Rights Movement, a common reason that pro-segregationists used to resist integration of public restrooms between white and other races was the protection of white women from the venereal diseases carried by African-American women.  In comparison, in the contemporary debate, we have supporters of bathroom bills—who also largely denounce expansion of anti-transgender rights—use the protection of young children from child predators as one of the primary reasons for these bathroom bills.  Just like venereal disease, here is now another peril that has been brought into the debate without any evidentiary basis—alas pedophilia!  But even despite the lack of statistics, the possibility of child predators is enough to gather support from family groups to prevent restroom integration at the expense of the restroom rights of a particular group.  Along the way, the ones left out of the stall—i.e. transgender individuals—now have either an inappropriate connotation of pedophilia attached to their image or way of life that facilitates an argument favoring their third-class citizenry.  Beyond the segregation, the pro-bathroom bill rhetoric is a cleverly designed campaign that uses anti-transgender essentialism—in the form bodily functions and biological sex—to discredit the pro-transgender constructivist aspects of gender identity.  All of this rhetoric and debate reveals the tension and hatred that the supporters of bathroom bills hold for transgender people.                        

Although in the context of schools, these bathroom bills have been legally challenged on the basis of Title IX violations, much of this debate makes me think of another legal solution to use against bills such as HB 2—that is, animus and rational basis "with bite" in Romer v. Evans.   The anti-trans rhetoric here reminds me of the disrespect politics that the supporters of Colorado Amendment 2 in the early-to-mid 1990s employed to get the state voters to pass an ordinance that denied non-discriminatory protections for LGBTQ individuals.  That campaign used the AIDS crisis and inaccurate statistics about gay sex to tarnish the image of sexual minorities, leaving them without any dignity in the eyes of other fellow Colorado citizens.  Eventually Amendment 2 was overturned by the Supreme Court in 1996 in Romer because the Court found that Amendment 2 was promulgated by an animus against sexual minorities that rendered the law empty of rational basis.

So if we were able to resolve Colorado’s discriminatory Amendment 2 in 1996, why are we not quicker in 2016 to note the hatred and animus that ought to render HB 2 and similar laws that discriminate against transgender individuals irrational as well?          

The Financial Cost of Hate

by Jeremiah Ho

The fall-out from the North Carolina anti-LGBT bill seems to continue. With the numerous businesses taking their ventures out of the state (including notables such as PayPal and Angie’s List) and big-name entertainers (Bruce Springsteen, the band Pearl Jam, and Ringo Starr) cancelling shows in North Carolina, the question of the economics of the business backlash is obviously inevitable.  According to a PBS Newshour’s piece that aired this week, the economic backlash based on cancelled conventions has cost the state at least $8 million dollars.  That’s not chump change, given that the bill (HB2) was passed only within the last two months.

The Williams Institute at the UCLA School of Law recently weighed in on the answer to the fiscal question for such anti-LGBT legislation—this time examining the fiscal impact of the Tennessee anti-LGBT bill (HB 2414) and the costs beyond the boycotts and backlash of private businesses. Instead, the Institute released a report this month that examines the fiscal impact from an administrative angle.  In sum, the researchers note that there are three major areas in which there would be negative financial impact to Tennessee with the bill in effect.  First the study notes that there might be a loss of federal educational funding of up to $1.2 billion annually as a result of Title IX violations.  Secondly, the loss of federal contracts to educational institutions could rise up to $3 million to $9 million annually as a result of violations of Executive Order 13672, which prohibits federal contractors that receive more than $10,000 in federal contracts annually from discriminating against their employees and job applicants based on gender identity.  Lastly, there likely will be costs incurred as a result of litigation and federal administrative enforcement.  The report can be found here.

If the report is accurate, then are these costs that both the citizens and the state of Tennessee will tolerate because of legislative intolerance? Is this a worthy cost of fear and hate?  

Religious Freedom or Anti-Gay Disguise?

If it had not been clear enough since last spring’s brief controversy Indiana’s Religious Freedom Restoration Act, the struggle for sexual orientation anti-discrimination was not about to cease with just a pro-gay Supreme Court marriage decision over the summer.  In fact, the recent news of anti-gay legislation passing through Georgia’s state legislature (it’s now on Governor Deal’s desk awaiting signature) gives pause for the thought that marriage equality just wasn’t enough for full equality. 

But what some might think is a step backward from Obergefell is actually part of the political incrementalism that keeps the importance of gay equality alive.  Obergefell was not—and should not be considered—the full-stop to progress in gay rights.  With the recent rise of conservative state legislatures passing bathroom bills against transgender school children and passing legislation, such as the one in Georgia, that would consequently allow faith-based groups to deny serves against same-sex couples and LGBT individuals, the movement presses on. 

The state of the gay rights struggle has been contextually one in which religion has been the both sword and shield.  First, religion was used to cast the behavior of sexual minorities as immoral and thus also deny them of protections within their civil liberties.  But once morality was no longer the effective underlying logic, the rise of religious liberty rhetoric began to take more presence in the debate over gay rights.  In the aftermath of Obergefell, where same-sex couples were given the right to partake in an institution that has both civil and religious significance, the defense of religious liberty was emblematically evoked by the likes of Kim Davis, the Kentucky county clerk who refused to issue marriage licenses to same-sex couples.  Davis defended her actions by claiming that her religious beliefs conflicted with homosexuality and her freedom of religious exercise shielded her from having to issue marriage licenses to gay couples. 

More clearly than ever, the debate now should move forth to investigate where one right begins and another ends.  Religious freedom is an imperative liberty in this country and it should continue to be in a society that embraces many different religious practices and ideologies.  But rights and freedoms are not absolute.  This notion includes the freedom to exercise of religious beliefs.  What needs to happen every time religion is being used to combat the recognition of gay rights is not only the acknowledgment that religious liberties already deserve protection under the Constitution.  We know that already; and frankly that’s the distraction in the political and legal rhetoric that leads to bills such as the one in Georgia or to the Kim Davis incident last fall—all pronouncements from an anxious body politic that craves that validation.  Instead, it is about time that the debate has shifted toward analyzing whether one’s exercise of religion has overreached in the context of gay rights and thus created a cognizable harm in the civil liberties of another—whether that’s a dignitary harm or some other legally-recognized injury.   

Recently, this topic has received some recent scholarly attention.  In a short passage in Dean Erwin Chemerinsky and Professor Goodwin’s forthcoming Georgetown article, Religion Is Not A Basis For Harming Others, Chemerinsky and Goodwin alluded to the idea in the gay rights context an argument for restricting religious freedom might be based on an infliction of dignitary harm.  Marvin Lim and Louise Melling also recently co-wrote a piece on this topic in the Journal of Law and Policy more directly to that effect.  Other scholars such as Professors Douglas NeJaime and Reva Siegel are sharing their forthcoming ideas similarly. But more legal and scholarly spotlight must shine upon this piece of the debate—that religious liberties are not absolute and must be constitutionally regulated in order to balance the panoply of civil liberties that is protected by the Constitution and that individuals in our society enjoy.         

Lively v Parkside: A Case to Watch

by Jeremiah Ho

In the wake of marriage equality at the Supreme Court, pro-gay rights cases that are trying to expand anti-discrimination protections based on sexual orientation have ensued. In the employment realm, there are a few pending cases that are trying to expand Title VII’s protections to include discrimination based on sexual orientation. One of them to watch for is Lively v. Fletcher Hospital, a case that was filed in federal district court in North Carolina on February 10, 2016.

Sandra Lively and Catherine Hipwell have been together as a couple for 15 years. Sandra has been a registered nurse at North Carolina hospital Park Ridge Health since 2012, while Catherine is self-employed. In 2005, Catherine was diagnosed with stage three uterine cancer and has been through intensive treatment. In October 2014, after North Carolina permitted same-sex marriages, Sandra and Catherine were quickly married. Soon afterwards, Sandra sought health care coverage for Catherine through Park Ridge Health, but was rejected repeatedly. Catherine, as a cancer survivor, needs health coverage. However, with Park Ridge Health’s refusal to cover Catherine and cuts in her subsidy through the Affordable Care Act because of her marital status, thousands of dollars were spent out-of-pocket for a private health plan. After Sandra complained through the EEOC in April 2015, Park Ridge Health changed its policy and allowed Catherine to enroll in May. But Park Ridge Health still refuses to reimburse the couple for the expenses they incurred for private coverage while they were denied enrollment in the employee plan. A suit filed by Lambda Legal alleges that Park Ridge Health’s prior policy of denying spousal coverage to married same-sex couples on the basis of sex and religion violated Title VII of the federal Civil Rights Act of 1964 and the Equal Pay Act.

Although Title VII does not explicitly protect sexual orientation, it does protect against sex discrimination. In addition, the EEOC has recently ruled that sexual orientation discrimination is protected under sex discrimination. Among her several Title VII claims (including one for sex discrimination), Lively’s claim tries to extend her sex discrimination claim to also cover discrimination based on sexual orientation. Her complaint reads: “Sexual orientation inherently is a sex-based consideration because sexual orientation cannot be defined or understood without reference to sex. Ms. Lively’s sexual orientation as a lesbian is inseparable from, and inescapably linked to, the fact that she is a woman who fell in love with and married another woman.” In this way, “denying spousal coverage to Ms. Lively based on her sexual orientation denies her spousal coverage based on her sex.”

Now that the same-sex marriage question has been directly resolved by the Supreme Court, will litigation such as Lively’s, which uses marriage, in part, to leverage toward antidiscrimination finally bring actual progress for more protections based on sexual orientation? The question from the federal district court in North Carolina is one to watch.

The complaint in the case can be found here.  More on the Lively case can be found on the Lambda Legal website.  

 

Does Bias Influence the Career Paths of Gays & Lesbians?

by Jeremiah Ho   Jeremiah Ho - University of Massachusetts School of Law

 

A recent report from the social sciences field explores the trend of higher gay and lesbian presence in certain fields of labor and careers than others. The title of the report is Concealable Stigma and Occupational Segregation: Toward a Theory of Gay and Lesbian Occupations. It was published by Administrative Science Quarterly, but has been featured separately on the London School of Economics and Political Science’s Business Review Blog and Paul Caron’s TaxProfBlog in the last few weeks.

So why are gay and lesbians overrepresented in certain fields such as psychology, social work, law, and higher ed teaching? Are there truthful correlations in age-old stereotypes regarding the type of careers that gays and lesbians take on in the workplace (e.g., gay hairdressers and lesbian truck drivers)?   

In assessing, what the title of the report calls, “concealable stigma” and its link to occupational segregation of sexual minorities into certain jobs, the authors of the report, András Tilcsik (University of Toronto), Michael Anteby (Boston University), and Carly R. Knight (Harvard), have observed that sexual minorities tend to hold occupations that allow them to rely on their experiences of discrimination and social stigma. Gay men and lesbians tend to be drawn to occupations that require task independence—the ability to perform tasks without large dependence on coworkers—because it allows concealment of sexual orientation and reduces negative consequences of being “out.” They also tend to hold occupations that require high social perceptiveness—of being able to accurately read, anticipate and gauge others’ reactions. A table of empirical data regarding the types of occupations with high numbers of gay and lesbian workers from the report with observations regarding whether such occupations require task independence and/or social perceptiveness is reproduced here:

Occupations with the Highest Joint Proportion of Gay and Lesbian Workers
1. Psychologists (S*, T**)
2. Training and development specialists and managers (S)
3. Social and community service managers (S, T)
4. Technical writers (T)
5. Occupational therapists (S, T)
6. Massage therapists (S, T)
7. Urban and regional planners (S, T)
8. Producers and directors (S, T)
9. Postsecondary teachers (S, T)
10. Probation officers and correctional treatment specialists (S, T)
11. Morticians, undertakers, and funeral directors (S)
12. Physical therapists and exercise physiologists (S, T)
13. Computer and information systems managers (S, T)
14. Lawyers, and judges, magistrates, and other judicial workers (S, T)
15. Web developers (T)

*S = Occupation requires above-average social perceptiveness
**T = Above-average task independence is associated with the occupation

The authors theorize that eventually such occupational trends might change as sexual minorities become more visible and accepted due to the visibility of same-sex relationships. Gay and lesbians might lose their social perceptiveness. But for now, the authors believe that there will continue to be strong correlation between social stigma and discrimination and the career paths that gays and lesbians pick.

What’s interesting for this writer of the HRAH blog is how social stigma of sexual minorities is characterized by this report as a strong but invisible influence for career choices and how it contributes to segregation and hierarchy in the workplace. Occupational choices are complicated for the livelihoods of gays and lesbian just as they are for everyone else. But as the report seems to suggest, the choice of career paths for gays and lesbians consists of influences and skills obtained from their history of societal marginalization and segregation. Whether the truth is as emphatic as the authors present here, their ideas are fascinating considering the substantial amount of time that we all spend in our lifetimes at work.

 

New Year Resolution Toward Respect: A Human Rights Goal

by Jeremiah Ho  

 It has been evident that within the last century, dignity has become a leveraging point for advancing challenges to human rights violations and restrictions within the law. Its post-Enlightenment, fundamental universality replaced previous versions of humanity and has been regarded as a normative individual entitlement.  In addition, the broadness of its meaning and application allows different social movements to carve out particular nuances between the status quo and desired norms.  Thus, dignity is a normative. 

Even before Obergefell v. Hodges, the anti-gay rhetoric that stole dignity away from sexual minorities for decades was a way in which the denial of their civil rights was justifiable under the law.  As others such as Martha Nussbaum have recounted (see Nussbaum, From Disgust to Humanity: Sexual Orientation & Constitutional Law 2010), challenges fought in court and state legislatures over gay rights in the past were lost by gay litigants and gay rights advocates partly because the dominant rhetoric against sexual minorities was couched within the politics of disrespect—that, for instance, gays were living in a lifestyle premised on a morally-blameworthy choice or they were susceptible to illnesses or that they practiced sexually-deviant, perverse acts.          

To some waning degree, that rhetoric of disrespect still remains and are still being used by opponents of gay rights and marriage equality. But for the most part, we’ve moved toward recognizing that dignity exists in sexual preferences and away from a politics of disrespect.  But a good question to ask in the recent shadow of Obergefell is whether the dignity recognized by the Court specifically accorded sexual minorities the respect that they should be entitled to for being who they are or whether the dignity rhetoric in Obergefell stopped short of this view and settled for addressing the respectability of choices of same-sex couples for wanting to participate in marriage.  The nuance seems slight but in the age where we recognize micro-aggressions and find assimilationist politics confining, the use of dignity to leverage rights by characterizing it between respectability of choices that a sub-group engages in to fit into the dominant culture (e.g. same-sex couples trying to obtain marriages) is a significant distinction from using dignity to accord the respect that a sub-group deserves based on identity alone. 

As we begin 2016 and progress (hopefully) toward nondiscrimination for sexual minorities, respect certainly seems like the winning route to take when it comes to using dignity to speak about elevating the status of sexual minorities to a protected class—whether judicially or legislatively. Respectability, in comparison, has the potential to elongate a conversation where LGBTQ individuals are considered as “the other.”  Dignity as respect reframes the discussion away from choices and existence in a way that deprives the dominant culture opportunities to comment, and instead, places the subgroup in a light where such type of judgment is not allowed.