Sunday, November 15, 2020
Many are using their time to contain irrational fears, dispel misconceptions stoked through the presidential campaign, and bridge the national political divide. Calming fears seems to be the most humane approach to problems in this unprecedented time. Then there is Justice Alito who has no inclination toward constraint. In a speech to attendees of the Federalist Society’s Virtual Convention, Justice Alito fueled conservative obsession with viewing themselves as constitutional victims. Many have reported on Justice Alito's remarks. As readers may be aware, Justice Alito proclaimed that first amendment rights of free exercise of religion and the second amendment right to bear arms are becoming "second class liberties". Most observers have focused on two aspectsof the speech. The first is that it is highly irregular for a sitting justice to discuss matters that are likely to be heard by the court. Also, does the substance of his speech raise the specter of recusal? Although recusal is unlikely in most Supreme Court cases (a la Cheney and Justice Scalia) Justice Alito's biases and prejudgment of issues parts ways with the usual discretion of members of the US Supreme Court.
Aside from the obvious, that Justice Alito is likely to be called to the principal's office this week, another aspect of this spectacle needs addressing. Justice Alito has done what so many Americans have done so well recently. He has made himself, and by extension Federalist Society members, victims of perceived grievances. Justice Alito is highly educated, is in a leadership role within our governmental systems, and presumably is aware of how to use words that can convey concerns without inciting alarm in the targeted audience. Justice Alito set his years of training aside and joined with people of privilege in sharing a view that their religious values and other liberties are under attack. Religious organizations have been unusually successful before the Supreme Court over the last decade. Beginning with Hobby Lobby, small businesses have obtained religious exemptions from providing birth control. Successive victories include Little Sisters of the Poor as well as the broad application of a "ministerial exception" granted to a religious school that engaged in what otherwise would be employment discrimination. Yet- those victories were ignored by the Justice, who instead chose to discuss a Nevada case that held that a regulation permitting casinos to operate during COVID-19 at 50% capacity while limiting church services to 50 people was not an unconstitutional restriction on practice of religion. While some might disagree with the decision, most accepted the restircitons as necessary under extraordinary circumstances. That is true, unless one views any case not finding on behalf of a religious institution as religious persecution. Justice Alito's behavior was not only inappropriate from a judicial perspective, it showed him to be an angry individual who sees himself as a victim despite his enormous privilege.
The perception of victimization has turned into a national pastime over the past two decades and it is beyond disheartening to hear a justice who should represent neutrality and fairness modeling self-centeredness and participating in rhetoric that could lead to even greater polarization. Perhaps there is a medical reason for Justice Alito's lack of decorum. Absent that, those appearing before the court whose views differ from Justice Alito's know what to expect.
Tuesday, November 10, 2020
November is Native American Heritage Month. This year readers may be prompted to explore the nature of US relations with Native Peoples from the time of first contact. Many good sources are available, including the The Native People's History of the United States. Black Lives Matters brought a reckoning of what is true, what is not, and what is omitted from the US historical narrative. This crucial examination is long overdue for Native Peoples. That Native Peoples have survived is due to their perseverance and resistance and not due to the acts of white people.
Colonization has had no greater impact in this country than on Native People. Annihilation has been a goal of many US presidents. While that goal has not been accomplished, US policies favor the continued poverty and marginalization of tribal members. The US long history of ignoring treaty provisions, and unilaterally ending agreements with tribes continues.
Reparations, including return of lands, must be considered as part of making right what centuries of violence against Native People has done to destroy Native autonomy and culture.
Wednesday, November 4, 2020
As of this writing, the election looks likely to go to VP Biden. Relief may be the major emotion. An extended exhale.
At the same time the election results are disturbing. A Biden presidency will stave off future harms from that the Trump administration would have brought and some of the damage done through executive orders by a simple act of reversal and repeal. That will go a long way toward preventing some of the environmental damage done over the last four years as well as restoring civil service protections and other arbitrary orders from 45.
But change might be limited. This was an amazing election for turnout. For once most citizens exercised their right to vote. But in many states the vote was close between the candidates. The nation proved its deep division.
The road ahead is bumpy. Racism will continue to divide us. Anti-immigrant sentiment is likely to linger if not accelerate in the short term. Violence may be in our near future with our current president declaring victory despite evidence to the contrary. His followers are told that the election was fraudulent.
None of this is news. Moving forward will be difficult. While President Trump may be defeated, Trumpism has not.
Monday, November 2, 2020
Clashes with angry people are expected to rise in the short term due to increased emotions around the Presidential election. Just in case Trump supporters attempting to drive the Biden Bus off the road is a portent, know that there is a hotline you can call. Organized and operated by Hofstra's Law Reform Clinic. The critical information for Voting Day and during the weeks to follow is that protestors, including those engaged in peaceful protests, will be referred to criminal and civil rigths lawyers for representation.
The clinic will serve legal observers, and military service members that might question the legitimacy of orders that cocerning responses to demonstrators.
The clinic opens November 2nd and depending upon need will run until March 1. 2021.
The website indicates that "Servicemembers, Conscientious Objectors, and Protesters can call the Hotline at 516-463-5935 between 6:00 PM and midnight Eastern Time any night of the week. All calls are strictly confidential."
Sunday, November 1, 2020
Turmoil is coming no matter the election's outcome. A Biden victory does not equate with a return to calm. We remain a divided nation and before the nation can move toward healing, there is trouble to pass through. The president is likely to declare victory before results are announced, and we have been forewarned that he will not leave easily. Many citizens, including many in government, do not believe in democracy. The angry Americans are not going silent. But the rest of us must.
This is the time to return to our spiritual cores. Calm, centering, and self-reflection will serve us. Our defenses against fear must be sharp. Experts tell us that the most effective path to the coming turbulence is non-violent demonstration. Sustaining non-violence demands a strong spiritual core. That is our essentialism for the coming times.
Tuesday, October 27, 2020
As reported in Indian Country Today, author Paula Peters documented a brutal attack on nine Mashpee Wampanoag men. The book is titled Mashpee Nine: A Book of Cultural Justice and is a companion to the documentary Mashpee Nine: The Beat Goes On.
The book documents a 1976 brutal tactical police attack on Wampanoag drummers that came at a time that the American Indian Movement had become a nationally recognized movement and as Native people sought the recognition and civil rights that alluded them (and still does) despite the Civil Rights Movement on the 1960s. The arrests and ensuing trial are significant in the history of Northeast tribes. As Ms. Peters explains, the young men who were arrested are now elders and their story was in danger of being lost.
While the Mashpee Wampanoags have succeeded in obtaining tribal recognition, they continue under assault from the Trump administration. The ongoing white colonial oppression makes the history recorded in Mashpee Nine essential to understanding the white efforts to remove any power from the tribe. Ms. Peters, who is Mashpee Wampanoag, informs on the history of Native people in the Northeast, particularly on Cape Cod. The tribe has ancient roots going back over 10,000 years. Their history since white contact was one of the first to experience the aggression, forced Christianization, and other white attempts at reducing tribal numbers and influence. The book presents an essential part of our histories.
Monday, October 5, 2020
The Open Society Justice Initiative sued the Trump Administration over its Executive Order that sanctions the International Criminal Court. The order, described as "draconian" sanctions and criminal liability for those who support the ICC and for their highest officials. The plaintiffs are four law professors: Diane Marie Amann, University of Georgia School of Law; Gabor Rona, Cardozo School of Law; Milena Sterio, Cleveland Marshall school of Law; and Margaret deGuzman, Temple University Beasley School of Law.
The executive order denies the UCC's jurisdiction over the US actions that happen outside of the United States.
"I, DONALD J. TRUMP, President of the United States of America, find that the situation with respect to the International Criminal Court (ICC) and its illegitimate assertions of jurisdiction over personnel of the United States and certain of its allies, including the ICC Prosecutor’s investigation into actions allegedly committed by United States military, intelligence, and other personnel in or relating to Afghanistan, threatens to subject current and former United States Government and allied officials to harassment, abuse, and possible arrest."
Foley Hoag represents the Plaintiffs who request that the order be enjoined while the court considers its constitutionality.
Sunday, September 20, 2020
In ordinary times, I would be delighting in remembrance of Justice Ginsburg's life and toasting her amazing leadership as a woman and a jurist. She lived a long and heroic life. We could not have asked more of her as a woman, as a lawyer, as a citizen. She improved the lives of generations of women and others whether we realized that or not. In ordinary times, there would be no greater time for celebration of an extraordinary woman and an extraordinary life.
I grew up on the coattails of the second wave feminists. These were times of major change, particularly in the law but also the beginning of (white) women's advances in the workplace. Brave women pushed through previously unopened doors. Life was not pleasant for them, but they broke barriers despite the indignities that accompanied their success. On the legal side, Ruth Bader Ginsburg brought cases targeted to break sexist barriers. She too suffered indignities, as anyone who was watched the film On The Basis of Sex or the documentary RBG observed. Under no circumstances was Justice Ginsburg's life an easy one. Everything she gained carried with it a professional, and sometimes personal, cost. One reason we loved her was her perseverance. Our hero sacrificed much but left behind a roadmap for those fighting barriers. She and Marty Ginsburg modeled what equality looks like in a personal partnership not tied to gender roles. The marriage advice Justice Ginsburg received from her grandmother "be a little deaf" was applicable during her work life also, including her time on the Supreme Court.
But these are not ordinary times. These are times where the politics of replacement for RGB began literally as she lay dying. The political fight that is about to erupt leaves no time for mourning. Those of us who loved her are vulnerable. We are asked to postpone our grief to carry on the fight - and I admire those who can do so, particularly those of younger generations.
Why I mourn is that so many advances for women are endangered. For those of us who have spent the last several decades fighting for women's rights, we wonder if the world we thought we had made for women is such a fragile illusion that fundamental human rights for women will soon be just an historical blip.
This is where my original post ended.
With some sleep and sunshine, I recognize that the weight of leadership that Justice Ginsburg carried during her lifetime should not be on her in death. To be hopeless is to dishonor her work. Our hero's passing must not end the fight. She showed the way and it is up to the rest of us to continue resistance. No excuses.
Wednesday, September 16, 2020
A portion of the discourse on the anniversary of 9/11 addressed the ongoing suffering of Muslims and those of Middle Eastern heritage. Immigrants are particularly vulnerable but bias against those of Middle Eastern ethnicity continues against all generations of Muslim Americans. In 2017 Pew Research Center reported that assaults against Muslims exceeded 2001 levels. Intimidation and property damage are two of the most common assaults on Muslims, along with all forms of discrimination. Ignored are Middle Eastern and Muslim families who also lost friends and love ones in the 9/11 attacks. The government is a major perpetrator of this discrimination.
This week a U.S. district court judge, Alison Nathan, who this week "castigated federal prosecutors in the Southern District of New York for repeatedly withholding exculpatory evidence in the case of an Iranian businessman who was convicted of funneling more than $115 million through the American financial system." Prosecutors agreed to vacate the judgment after their improprieties came to light, including misrepresentations around discovery in the case. Judge Nathan commented that "serious and pervasive issues related to disclosure failures and misleading statements to the court."
Judge Nathan was appalled that the federal ethics overseers declined to investigate the case. "The cost of such government misconduct is high. With each misstep, the public faith in the criminal -justice system further erodes. With each document wrongfully withheld, an innocent person face the chance of wrongful conviction."
Tuesday, September 15, 2020
News outlets reported today that an unusual number of hysterectomies have been performed on migrant women, particularly at Irwin County Detention Center in Georgia. Tubal ligations are routinely performed there, as well. The whistle blower, a nurse who previously worked at the GA detention center, reported that the outside gynecologist removed the uterus of nearly every women he saw, and for those he did not he frequently performed a tubal ligation.
The court complaint filed on behalf of several detainees alleges a years-long record of "human rights abuses including lack of medical and mental health care, due process violations [and] unsanitary living conditions."
Women are vulnerable, immigrant and detained women more so. The first line of attack on women is often assault on their bodies. Arbitrarily removing women's sexual parts is not just an act of misogyny. Within the context of a detainee camp environment the actions are close to medical experimentation and appropriation.
We have had similar alerts of government sanctioned atrocities against vulnerable populations, reminders of what occurred in pre-war Germany. Yet our reactions are muted. At this point there is sufficient liberty remaining that massive protests might bring change. We cannot presume that this liberty will remain post-election.
Monday, September 14, 2020
The ACT Human Rights (Virtual) Film Festival begins on October 1 and runs for ten days. Presented by Colorado State University, the festival offers a wide range of interesting films. The 5th Annual Festival was originally scheduled for last spring but was postponed due to the pandemic. Tickets may be purchased for the series or for individual films.
The films are varied and address a wide-range of human rights issues. Opening day will include Gay Chorus Deep South. The film follows the San Francisco Gay Chorus as they travel through the deep south. The trailer will draw you in as a variety of emotional moments address rejection and courage.
Hungry to Learn follows students experiencing food insecurity. Exploring student hunger and its connection to learning is a painful but critical exploration. Another film topics explore non-binary athletes in Changing the Game, Yet another explores the world of private prisons. The full range of films may be explored here.
Monday, September 7, 2020
In an advancing his racial hate agenda, the President has ordered that critical race trainings be de-funded along with any trainings on White privilege. In a memo, government employees were told:
"All agencies are directed to begin to identify all contracts or other agency spending related to any training on 'critical race theory,' 'white privilege,' or any other training or propaganda effort that teaches or suggests either (1) that the United States is an inherently racist or evil country or (2) that any race or ethnicity is inherently racist or evil."
Of course, neither training promotes the United States or any ethnicity as "evil". Yet the President called the trainings "divisive, anti-American propaganda".
Federal employees "should begin to identify all available avenues within the law to cancel any such contracts and/or to divert Federal dollars away from these un-American propaganda training sessions."
Jeffrey Toobin has warned that if Trump is re-elected the second term will make these past four years look like constitutional compliance. Scary to think what the substitute trainings will include.
Sunday, August 30, 2020
Hurricane Laura did serious damage to several states, primarily west Texas and Louisiana. While the devastation was severe the damage was not as extensive as predicted, future hurricanes may prove to be more deadly. Weather services predict that the number of hurricanes this season may not vary from prior years. The difference will be in their intensity and the level of devastation.
Women suffer more during disasters. Whatever the disaster, war, flood, tornado, or earthquake women are at higher risk for sexual assault within and without of their homes. Lessons from the 2005 Hurricane Katrina revealed horror stories of women being sexually assaulted while in temporary shelters. Women were assaulted consistently and without any police protection, even when police or other security was available. At the same time, proved through several studies, women experience increased domestic violence at home.
With the warning of the likelihood of a devastating hurricane season, this is the time for planning to protect those who will be at risk of sexual assault and other gender violence. Research confirmed this information at least two decades ago. But still we do no disaster planning to protect women during disaster. While we cannot change past victimization of women during disaster, we can plan for protection of women, particularly women of color and transgender women, from the horrors of sexual violence and the resulting trauma for those already traumatized by disaster.
Monday, August 24, 2020
The 2020 American Black Film Festival is under way. If you have not participated yet, you have time to see several features over the remaining days of the festival. The festival runs through Sunday and addresses many human and civil rights.
The festival includes short and feature films and discussions by directors, writers,and other diverse story tellers. One of the many interesting films is Son of the South, produced by Spike Lee. Here is a summary:
Directed by Barry Alexander Brown the film is set in the summer of 1961, Son of the South tells the true story of Bob Zellner, grandson of an Alabama Klansman, who went against his family as the civil rights movement began to heat up in the deep South. Living in Montgomery, he witnessed first-hand the heroism of John Lewis, Martin Luther King, Jr and Rosa Parks who said to him when he was wavering, “Something bad is going to happen right in front of you someday and you’re going to have to choose which side you’re on – not choosing is a choice.” This is an honest and inspiring account of what it takes to do the right thing.
A discussion with Barry Alexander Brown will follow the screening.
Thursday, August 20, 2020
The Trump administration attempted to prevent trans individuals from receiving healthcare. The administration attempted to "to erase protections for transgender patients against discrimination by doctors, hospitals and health insurance companies, dealing a blow to the broader legal reasoning it has used to try to roll back transgender rights across the government." Judge Block of the Federal District Court (Brooklyn) found that the proposed roll back was unconstitutional under the Bostock case.
While the ruling is only a preliminary injunction, Bostock made clear that the definition of sex discrimination includes trans individuals. Hooray!
Monday, August 17, 2020
Women's national right to vote is 100 years old. Those women who led and supported the movement to change the law so that women could vote were brave. Katy Cady Stanton,Susan B. Anthony, Lucy Stone, Alice Paul and Margaret Fuller are the names most Americans associate with the suffrage movement. Who can name the leading Black women who promoted suffrage?
Only with BLM has the general white populace become aware of Black women's leadership in the suffrage movement. This week brought articles on Black women who not only advanced suffrage but did so effectively. The New York Times this week included information on how black women, including Ida B. Wells, documented the Black suffrage movement through photography. Black suffrage organizers argued that racism and sexism could not be separated. Today's BLM women recognize that intersectionality as the #Say Her Name movement represents.
For a time, Alice Paul was persuaded by racists who felt that Southern women would not support Northern suffrage movement if Black women were permitted to march with White women. The Guardian wrote about this choice in describing an incident documented in PBS' "The Vote". Once again racism was permitted to influence decision making, which only postponed US reckoning with race. While ultimately Alice Paul agreed that Black women would not march separately, her initial opposition and continued failure to give equal status to the Black leaders caused harm.
Some of the many Black suffrage leaders' names to remember: Ida B. Wells, Mary Church Terrell, May Howard Jackson, Harriet Gibbs Marshall, Drs. Amanda Gray and Eva Walsh, Anna Evans Murray, Georgia Simpson, Harriet Shad, Lulie Niles Fisher, Lucretia A. Freeman, Minnie Gaines, Florence Henderson, Nettie Johnson, and Carrie Clifford. #SayTheirNames.
Wednesday, August 12, 2020
Much excitement has greeted Mr. Biden's announcement that his vice-presidential running mate is Senator Kamala Harris.
The selection of a Black, female running mate is a consequence of and a response to the Black Lives Matter movement. Harris is not without her controversy, particularly on issues of mass incarceration and prosecutorial rigidity. During her prosecutorial and Attorney General days she opposed release of incarcerated people proved innocent. Then after their release she opposed awarding the compensation to the exonerees. Law and order was one of her signature policies. Both Biden and Harris will have difficulty distancing themselves from the players who maintained (and in Biden's case built) the carceral state.
That said, Senator Harris brings high energy to the campaign and she brings self-confidence and a commitment to helping the most desperate during the current health crisis. She knows how Congress works and is a good match for the bad boys of Congress. Her inquiries at the Kavanaugh hearings revealed her understanding of issues that impact women. And her parental heritage ensures her understanding of multiple cultures.
How exciting it would be if our first female president is a woman of color. The vice-presidency could set her up well for a presidential run.
No candidate will meet all needs. But as the authors of How Democracies Die reminds us, in order to defeat an autocrat it is only necessary that opposition groups unite behind the alternative candidate. Whatever disagreements anti-autocrats may have with the alternate candidate are unimportant. Unification to defeat the autocrat is imperative to the survival of a democratic state. Everything else can be dealt with later. The 2020 election is our turning point. Post-election we either struggle on as a democracy or we bid farewell to the Republic and acknowledge the solidification of the US as an authoritarian state.
Monday, August 10, 2020
The Violence Against Women's Act was pursued by well-intentioned advocates. Much good has come from the funding that accompanied the act's passage. Funded domestic violence shelters and other services for those experiencing intimate partner abuse has provided options to survivors and their children. From the beginning, however, there were serious flaws in the act. But those were not significant enough for advocates to abandon their advocacy.
Women of color were mostly excluded from the VAWA drafting process. If they had been, they would have raised objections to the stream of funding being primarily to and through the police. Advocates quickly assessed the error of the overwhelming role that law enforcement was assigned under VAWA. The act presumes that the criminal system - law enforcement and prosecutors - is entitled to lead anti intimate partner abuse efforts. How wrong that presumption is.
Had women of color, particularly Native and African American women, been guiding VAWA's development, they would have cautioned about the risks of criminal law involvement. Certainly there are times when victims are safe only when the abusive partner is confined. But many downsides can result from survivors' participation in the criminal system. Survivors complain of not having control over the criminal process. When survivors do not wish to pursue charges, they can be subpoenaed or held in contempt. In one case, the survivor was arrested for contempt for failing to appear at a scheduled hearing. Ultimately the prosecution decided that even with the survivor's testimony they did not have sufficient evidence to prosecute. The survivor ended up with an arrest record for a case the prosecution never pursued.
Further detrimental consequences from the criminal system abound. Cooperation with police can be dangerous to survivors who fear and suffer worse abuse because of their cooperation. Survivors suffering from PTSD or other mental health disorders may not have capacity to testify without suffering further health consequences. Mothers, particularly women of color, may lose custody of their children to the state or to the abuser for "failing to protect" them from an abuser over whom the mother has no control. The arrested abusive partner may not be able to find work, even after an acquittal. With a conviction, employment may be even more difficult to obtain, leaving the the survivor and children financially desperate.
Drastically reducing funding to the criminal system and shifting those funds to civil services can provide what victims decide they need. This could include permanent, safe housing and financial support until survivors can be self-sufficient; mental health resources for survivors and their children. With a shift in funding, survivors could design their own restorative plans for them, their children and even their abusers if they desire.
For critical thinking on the criminal legal system and it's sideways direction in domestic violence cases, I suggest reading Leigh Goodmark's book "decriminalizing Domestic Violence".
Thursday, August 6, 2020
In the U.S. we are familiar with the decades of abuse by Dr. Larry Nassar of young female gymnast, other countries are reporting similar abuses of their girls. Professor Dunlap followed Nassar in earlier posts.
Now other countries are recognizing abuses against their young athletes.
"Complaints by at least 20 former Australian gymnasts about physical and mental abuse during their careers has prompted Gymnastics Australia to ask a human rights group to investigate. The gymnasts, including Olympic and Commonwealth Games gold medalists, have recently spoken of a toxic culture within the sport. They also used social media platforms to detail fat-shaming and other forms of abuse." While the identity of the gymnasts was not disclosed, public fat shaming of male athletes has not been observed by this writer. The Australian Human Rights Commission will investigate.
Meanwhile Dutch authorities are investigating similar abuses and in the meantime has suspended the women's training program. British Gymnastics is conducting an investigation into the abuse of their female gymnasts. And Flemish Gymnastics Federation is conducting its own investigation.
The brave women who accused Larry Nassar empowered women and girls around the world to report abuse. Another thank you to those brave women who came forward in Michigan.
Tuesday, July 28, 2020
In a recent ranking the United States came in 34th as the country best for raising a family. Iceland ranked first, having received A+ rankings for safety, cost, and health. Norway, Sweden, Finland, and Luxembourg received A+ rankings.
The United States was ranked 34 out of 3v5 counties. Not surprisingly, the US received an "F" in safety. Other categories in which the US received failing grades were cost and time. No grade was higher than a C+ and those were received in the happiness and education categories. A D- in health rounds out the scoring.
If you are not one of the 1% category, you already know why the ranking is low - and appropriate. Millions in the country have inadequate or no health insurance. Most public schools are under-resourced, particularly those in communities of color. The cost of living is excessive with those in minimum wage positions unable to escape the consequences of poverty. The divide between the wealthy and those barely able to sustain themselves has not been this wide since the so-called "Golden Age". Not only is safety not secure in the US, those sworn to serve and protect can be causing the most harm depending upon your skin color. The C+ the US received in "happiness" was generous grading indeed.