Tag Archives: affirmative action

July 15, 2023 · 10:06 PM

Shifted

The U.S. Supreme Court ended its first term of 2023 last month with some stunning decisions – stunning, but not surprising.  A year ago the Court finished with its shocking reversal of the 1973 landmark Roe v. Wade, which had legalized abortion in the United States.  Ending abortion in this country had been a long-standing goal of social and religious conservatives and they finally accomplished that mission.  But this time the Court went further in their swing to the far right by ending affirmative action in college admissions and allowing religion to be used to discriminate.

In Students for Fair Admissions, Inc. v. President and Fellows of Harvard College, the Court ruled that the admissions programs used by the University of North Carolina and Harvard College violate the Constitution’s equal protection clause (the 14th Amendment), which bars racial discrimination by government entities.  The 14th Amendment has been utilized to undermine entrenched discrimination for decades.  It has manifested its power in such SCOTUS decisions as Brown v. Board of Education of Topeka and Miranda v. Arizona.  Ironically, the Students for Fair Admissions ruling reversed a 20-year-old case, Grutter v. Bollinger, which declared race as a plausible factor in college admissions policies.  Have things really changed for the better in two decades?  All of this also reminds me of the Regents of the University of California v. Bakke, in which a White man, Allan Bakke, sued the University of California Medical School at Davis for refusing to admit him; the school had reserved 16 places in each entering class for qualified ethnic minorities.  Bakke had applied twice to the school and been denied twice, despite having a high GPA and test scores.  SCOTUS ruled that, while race was a qualifying factor in college admissions, the University of California policy at the time, indeed, violated the Constitution’s 14th Amendment.

I have to admit I support their affirmative action decision.  As noble a philosophy as it was, I feel affirmative action has run its course, and – as we march further into the 21st century – it’s time we truly become a color blind society.  Actually it’s way past time.  But, as with campaign promises and many business plans, things look great on paper.  Personally I don’t feel affirmative action has helped me.  It hasn’t hurt me, but it certainly hasn’t helped me.  I never asked for special rights or considerations.  But, like I told a friend years ago, while legislation may have forced the playing field to become level, are all the players on the field playing on the level?

It’s the Creative 303 decision, however, that concerns me the most.  Last year the Supreme Court made perhaps its most controversial decision in decades with the Dobbs ruling that effectively ended the constitutional right to an abortion.  But, in the 2022 Carson v. Makin ruling, the Court chipped even further away at that cherished separation between government and religion, when it declared the state of Maine had violated the constitution when it refused to make public funding available to students attending religious schools.  In general religious institutions don’t pay taxes; therefore, they’ve traditionally been unable to access tax money at either the state or federal level.  The reasoning was practical: anyone who receives government funding should follow certain rules and regulations.  People taking unemployment insurance, for example, have to conduct a minimum number of job searches weekly; otherwise, they can’t receive that money.

In the Creative 303 case, Colorado web site designer Lorie Smith had allegedly refused to design a site for someone planning a same-sex wedding; declaring that it was an affront to her religious beliefs and therefore, violated her First Amendment rights.  It’s similar to another case from Colorado, Masterpiece Cake Shop v. Colorado Civil Rights Commission, in which Jack C. Phillips, the owner of Masterpiece, refused to bake a wedding cake for a male couple on the grounds that it violated his religious beliefs; he simply didn’t believe in same-gender unions.  The couple, Charlie Craig and David Mullins, filed suit, claiming Phillips was in violation of Colorado’s Anti-Discrimination Act.  The Supreme Court ultimately ruled in Philips’ favor, decreeing that the Colorado statute violated “the State’s duty under the First Amendment not to use hostility toward religion or a religious viewpoint as a basis for laws or regulations.”

But no sooner had the Creative 303 ruling been made than news arose that Smith may have fabricated her initial claim.  The man who supposedly asked her to design a web site for a same-gender wedding states he never worked with her.  Smith, however, cited the man – identified only as “Stewart” – in 2017 court documents and included his phone number and email address.  But “Stewart” says he didn’t even know his name had been invoked in the original lawsuit until a report with “The New Republic” contacted him.

“I was incredibly surprised given the fact that I’ve been happily married to a woman for the last 15 years,” said Stewart, who declined to give his last name for fear of harassment and threats.  He noted that he’s a designer himself and could have created his own web site if necessary.

One of Smith’s lawyers, Kristen Waggoner, insisted Stewart’s name and other information had been submitted to her client’s web site and denied the entire claim had been fabricated.  But she suggested an internet troll had made the request to Smith; adding that’s it occurred with other clients.  Ironically, the aforementioned Jack C. Phillips was also Waggoner’s client.

Regardless, I have to wonder if this revelation doesn’t render the Creative 303 ruling invalid.  Even if an internet troll had made the initial application, Smith’s attorneys should have verified every detail of the case.  That’s what lawyers are supposed to do.

Getting a matter before the U.S. Supreme Court is no small feat; they don’t take on minor traffic infractions.  That’s why so many of their decisions are monumental and can reshape society.  And thus, it’s why people are rightfully concerned about the implications of the Creative 303 edict.  If religious ideology can be the basis for discrimination, who’s to say a business owner can’t refuse to service a prospective client under such a pretense?  Technically businesses have the right to refuse service to anyone, but that’s generally happened only under the most egregious of circumstances.  A bar or nightclub, for example, can refuse to admit someone who’s visibly intoxicated.  I’ve seen signs on doors declaring “no shirt, no shoes, no service”.

Years ago another friend told me I discriminate whenever I choose one food item over another.  “That’s not discrimination,” I told him, “that’s selection.”  But he was a conservative, so I guess I understood why he couldn’t make that distinction.

Still, I certainly hope many Black, Hispanic and queer conservatives are happy with their votes for George W. Bush and Donald Trump.  Despite not winning the popular vote in their respective elections, they were able to place five justices on the U.S. Supreme Court.  That has never happened before in the history of U.S. legal jurisprudence.  All five of those individuals have now set back decades of civil rights advancements.  A truly democratic society is supposed to protect all of its citizens from bigotry and oppression.  I fear we’re doing the opposite in the United States.

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February 20, 2016 · 9:00 PM

The Original Antonin Scalia

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U.S. Supreme Court Justice Antonin Scalia died in his room at the Cibolo Creek Ranch, a luxury resort in the Big Bend region of West Texas last weekend. The ranch is in such an isolated locale that it took hours for local officials to find a justice of the peace to make an official ruling on Scalia’s death. Finally, Presidio County Judge Cinderela Guevara arrived on the scene and made the declaration without viewing Scalia’s body and without ordering an autopsy, both of which are permissible under Texas law.

Scalia is the 35th U.S. Supreme Court justice to die while still in office, and the fourth to die during a presidential election year. An icon to social and religious conservatives here in the U.S., Scalia was one of the most colorful characters to occupy the nation’s highest judicial bench. He was as brilliant as he was combative. His quirky sense of humor and brutal honesty illuminated the halls of what had always been considered a stodgy realm.

I recall, during the debate over the 2000 presidential elections, attorney Joseph Klock – arguing on behalf of the state of Florida – embarrassed himself by confusing some of the Supreme Court justice’s names. “For the record,” Scalia told Klock, before questioning him, “I’m Justice Scalia.”

I have to respect Scalia for his knowledge of the law and his willingness to take a stand for his own principles. People who rise to that level within the judiciary maze aren’t the same ones who handle traffic tickets. They are, instead, the most genuine of intellects; the folks who interpret the law when others can’t reach a mutual understanding. They are extraordinarily cerebral and steadfast in their beliefs; incredibly insightful and charming; and – in some cases – dangerous.

Aside from his wit and biting criticisms, Scalia is known for the concept of “originalism” or “textualism” regarding his view of the U.S. Constitution. He openly scoffed at the idea it was a malleable text; instead calling it a “dead document,” as if it had been dipped in amber – like a prehistoric butterfly – and encapsulated in its own perfection. It was not subject to interpretation from its authors’ descendants; lest its structural integrity be cracked and subsequently destroyed.

But, if the U.S. Constitution is a “dead document,” is it still relevant? Purposeful? Necessary? More importantly, if it’s dead, why has it been amended 27 times? I view the Constitution as either a dictionary, in that words are periodically added to it; or as a standard operating procedures manual (SOP), in that procedures are changed in accordance with technological advances. The term “Internet,” for example, didn’t exist a half-century ago, so a Merriam-Webster dictionary published in 1966 wouldn’t feature that word. Similarly, a SOP composed in 1966 for a bank wouldn’t describe the process of scanning paper documents into digital images because such a procedure hadn’t been devised yet. Someone somewhere may have thought of it, but that person was probably a nerdy type ensconced in a basement or a garage.

Aside from painting and writing, there were no audio or visual recording devices when the Constitution was written. Although the concept of photography was devised as early as the 11th century C.E., the first practical photograph was roughly a half-century and an ocean away from being taken by the time of the U.S. Revolution. The first sound recording was almost one hundred years in the future. Therefore, it’s difficult to infer what the Constitution’s framers meant exactly with their verbiage.

As devout Roman Catholics, Scalia and his wife, Maureen, didn’t believe in birth control and had nine children. One of them, Paul, decided to “take one for the team” – in his father’s words – and join the priesthood; thus becoming a conduit to one of the most violent and oppressive institutions on Earth. Like its conspirators, Judaism and Islam, Roman Catholicism (actually, all of Christianity) declared itself the model for humanity centuries ago and set out to conquer and annihilate people it deems heathens. Thus, it commands people to procreate (pollute) the world with their bodies and their toxic ideologies. Every time I think of that “go forth and multiply” biblical shit I think of the late Mother Teresa; the Romanian nun who infiltrated the starving masses of India and announced that she would care for any bitter soul and broken body who came her way; never realizing that the best way to prevent such misery is…oh, maybe teach women to be empowered by keeping their legs crossed, or telling men every erection doesn’t need to produce a child who ultimately can’t be fed and clothed.

Scalia often tried to force his ardent religiosity onto others; his personal beliefs rearing its ugly head in one of the most cumbersome issues of our time: abortion. In eight different opinions, he noted the U.S. Constitution doesn’t mention the term “abortion” and therefore, women had no right to it under constitutional concepts.

“You want a right to abortion?” he asked. “There’s nothing in the Constitution about that. But that doesn’t mean you cannot prohibit it.” His reference was that abortion laws should be left strictly up to individual states. He dubbed the legendary Roe v. Wade case an “absurdity,” adding that the Constitution’s 14th Amendment doesn’t guarantee equal protection for women when it comes to the subject of abortion. That’s congruent with the Christian biblical commandment of “Thou shalt not covet thy neighbor’s wife,” which – if you read the entire passage – actually begins with “Thou shalt not covet thy neighbor’s house,” and everything in it; including said neighbor’s “manservant,” “ox” and “ass.” The Christian Bible, along with the Judaic Torah and the Islamic Quran, considers anyone with a vagina (and many with penises) property – akin to houses and donkeys. The U.S. Supreme Court itself was purportedly designed with Christian theology in mind.

Scalia possessed equal animosity towards homosexuality. In another landmark ruling, Lawrence v. Texas, denigrated the right to sexual relations between consenting adults of the same gender by comparing it to…flagpole-sitting.

“[S]uppose all the States had laws against flagpole sitting at one time, you know, there was a time when it was a popular thing and probably annoyed a lot of communities, and then almost all of them repealed those laws,” Scalia asked the attorney fighting the Texas law. “Does that make flagpole sitting a fundamental right?” His hate for gays and lesbians was so intense that he did something Supreme Court justices rarely do when they write their opinion: he stood and read it himself in the Lawrence case.

He also used the tired old right-wing mantra of comparing homosexuality to murder in Romer v Evans. “Of course it is our moral heritage that one should not hate any human being or class of human beings,” he wrote. “But I had thought that one could consider certain conduct reprehensible – murder, for example, or polygamy, or cruelty to animals – and could exhibit even ‘animus’ toward such conduct. Surely that is the only sort of ‘animus’ at issue here: moral disapproval of homosexual conduct[.]”

But, despite his brilliance, Scalia proved how underhanded he could be in 2004, when he handled a case involving his old college buddy, then-Vice President Dick Cheney. In 2003, Judicial Watch and the Sierra Club sued Cheney for access to information regarding his clandestine energy task force meeting in 2001. A Washington, D.C., district judge ruled that the two groups had the right to know who was present at the meeting, in accordance with the 1972 Federal Advisory Committee Act. Cheney rebuffed the demand and took it to the Supreme Court; whereupon the matter ended up on Scalia’s docket. Shortly before that, however, Scalia and Cheney went on a duck hunting trip together in Kansas, with the jurist riding in the Vice-President’s plane. Such a close relationship smacked of impropriety and bias, but that certainly bothered neither Cheney nor Scalia.

“It did not involve a lawsuit against Dick Cheney as a private individual,” Scalia said. “This was a government issue. It’s acceptable practice to socialize with executive branch officials when there are not personal claims against them. That’s all I’m going to say for now. Quack, quack.” Yes, he really did say that, “Quack, quack,” which is essentially giving the middle finger to the concept of impartiality and judicial integrity.

Scalia’s innate bigotry glowed again in his opinion regarding a recent affirmative action case, Fisher v. University of Texas-Austin. Referencing some obscure amicus brief, Scalia said that “it does not benefit African-Americans to – to get them into the University of Texas where they do not do well, as opposed to having them go to a less-advanced school, a less – a slower-track school where they do well.” He argued that “most of the black scientists in this country don’t come from schools like the University of Texas.” Talking like a psychic-medium, he declared, “They come from lesser schools where they do not feel that they’re – that they’re being pushed ahead in – in classes that are too – too fast for them.”

Translation: niggers are too stupid to go to big-time universities. He might as well have said the same about Hispanics and Native Americans. It’s amazing, though, in the 21st century that some people still possess such idiotic views. But, then again, the Word War II generation and those who did everything they could to halt the advance of civil rights haven’t all died out yet. They lost one of their own in Scalia. Good riddance.

Scalia made history as the first Italian-American on the U.S. Supreme Court. Several years ago I read an editorial about jury selection in 1950s-era Dallas County, Texas, which bore this statement from then-Assistant District Attorney Bill Alexander: “Do not take Jews, Negroes, Dagos, Mexicans or a member of any minority race on a jury, no matter how rich or how well educated. I may like these people, but they will not do on juries.” The term ‘dago’ refers to Italians.

I find it ironic that Scalia lied in state on the same day as author Harper Lee died. Lee’s “To Kill a Mockingbird” remains a classic of American literature; a book that dealt brazenly and unapologetically with the subject of racial injustice. Regardless of what one thinks of him, Antonin Scalia carved a deep impact into the consciousness of American society.

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