Last Friday the Supreme Court indicated that on November 30 it will hear arguments in the Trump administration’s appeal regarding its efforts to exclude undocumented immigrants from being counted in the census numbers used to calculate the apportionment of congressional districts.
Last Monday the Supreme Court of the United States declined to hear a case brought by Kim Davis, a former country clerk who, in the wake of the Supreme Court’s 2015 decision in the Obergefell v. Hodges case legalizing same-sex marriage, who refused to issue certificates for such marriages because of her religious objections to them. She was sued and even jailed for this refusal and was appealing her case.
American romantic poet, philosopher, and diplomat once referred to the U.S. Constitution, in an address to the Reform Club of New York in 1888, as “a machine that would go of itself.” More precisely, in using this phrase, he meant to diagnose a dangerous complacency infecting American political life, one born of the misguided belief that the Constitution itself provided a powerful enough governing framework to keep the American democratic system from ever derailing.
Amidst the recent mass nationwide uprisings, dominated by the sentiments of the Black Lives Matter movement, an effective reincarnation of the Civil Rights Movement, the Trump administration has continued its efforts to deny transgender people civil rights, denying them equal protections under the law.
While Donald Trump has been involved in a dispute with Twitter, speciously and ignorantly crying that the social media company violated his First Amendment rights, uprisings and mass actions protesting the police murders of George Floyd and Breonna Taylor—and the pervasive devaluing of Black lives generally–have mounted.
While we don’t yet know how the Supreme Court will decide the major civil rights question before it regarding whether or not gay and transgender people are protected under federal legislation that outlaws employment discrimination “on the basis of sex,” the nature of the debates and the questions raised from the bench last week when attorneys for both sides presented arguments do not reflect well on this nation’s supposed commitment to civil rights.
At a minimum, it’s fair to say it’s no slam dunk that the Supreme Court will arrive at ruling that endows LGBTQ Americans with the basic civil rights that American ideals, especially those ideals people, particularly African Americans, took to the streets for in the Civil Rights Movement in the 1960s, pose as fundamental liberties for all.
At worst, the court may very well be poised to ratify—and likely further unleash through its endorsement—rampant and hostile discrimination against people simply for how they choose to love and define their sexual and gender identity. While this case centers on employment discrimination, thus entailing grave consequences for LGBTQ people’s abilities to earn a living, a ruling that denied their civil rights would surely have ramifications well beyond the workplace and economy, serious as those elements are. Just as Trump’s virulent and loudly expressed racism has resulted in exponential increases in white nationalist and other racist violence against people of color and Jewish people, it seems to fair to expect that if the highest court in our land endorses discrimination against LGBTQ people, that a similar uptick in violence against them will likely occur.
What was most underlined in the back and forth between the justices and the attorneys is that extension of civil rights to all Americans is still in question.
Let’s underline that: Civil Rights have not been embraced by the United States for all members of society.
And that the Supreme Court is pondering and scratching its collective head about whether civil rights should be extended to all members of society is absolutely troubling.
The justices are actually wondering if it is just to have a group of second-class citizens.
We need to continue to point out this fact. And we should explore and make clear the warped reasoning coming from these supposedly prized intellects and dazzling legal minds, as I’ve done elsewhere.
For the court, the crux of the matter seemed to be whether the word “sex” in the 1964 Civil Rights Act could be construed as incorporating sexual orientation and gender identity—did it just refer to distinctions between “male” and “female,” or does it include distinctions between “gay” and “straight”?
Justice Samuel Alito at one point responded to attorney Pamela Karlan, representing two of the plaintiffs,
“You’re trying to change the meaning of what Congress understood sex to mean in 1964.”
As Don Draper, the central character of AMC’s hit show Mad Men, likes to say, “If you don’t like what’s being said, change the conversation.”
For the GOP across the nation these days, though, the prevailing attitude is more to the effect of, “If you don’t like what’s being said, repress the conversation.”
The GOP will fight to the death for the Second Amendment, allowing anybody to buy and possess deadly weapons. This uncritical advocacy has, of course, resulted in a string of mass shootings in the United States, costing many American lives.
When it comes to the First Amendment, however, the GOP doesn’t find the Constitution quite so precious or worth upholding.
The West Virginia State Senate last May 30 passed legislation outlawing public school teacher strikes and authorizing the firing of public workers, beyond just teachers, who strike. The legislation heads to the Republican-led State House on June 17 for consideration.
This legislation reads as a retaliation aimed at teachers for their historic statewide strike last year shutting down public schools for nine days. Teachers were protesting a decade-long pay freeze which the state offered to “ameliorate” with a small pay increase accompanied by pension reductions and substantial increases in health care premiums.
The West Virginia teachers’ actions set off a series of teachers’ strikes in Arizona, Kentucky, Colorado, and Oklahoma.
While West Virginia teachers spearheaded a widespread fervor of democracy in action, now the West Virginia GOP is spearheading a counter-fervor of anti-democratic repression.
Remember when thousands of indigenous and environmental activists gathered in North Dakota in late 2016 to protest the construction of the Dakota Access Pipeline? The protest enjoyed a temporary success when then-President Barack Obama’s administration withheld a permit needed for construction of the pipeline to continue. The victory was short-lived, as Trump swept into office and reversed the decision.
These protests triggered a GOP counter-attack aimed at repressing protests in the future and disarming democracy, and gutting the First Amendment.
Oklahoma, a state dependent on the fossil-fuel industry, pre-emptively passed a law in 2017 making it a felony to enter pipeline property to “impede or inhibit operations of the facility.” If the activist succeeded in impeding operations, the penalty could be ten years in jail in addition to a $10,000 fine.
Similar laws denying protesting “critical infrastructure” passed in South Dakota and North Dakota, and legislations mirroring Oklahoma’s have been enacted in Iowa and Louisiana, while also being introduced in Indiana and Illinois, for a total of fifteen states thus far experiencing this legislative onslaught on the democratic rights of protest.
American Legislative Exchange Council (ALEC), an industry-backed organization, adopted Oklahoma’s bill as model legislation and has been a force in spreading this legislation to other states. The bills have typically inspired and lobby-efforts from such industry heavy-weights as Energy Transfer, Enbridge, and TransCanda, the company behind the Keystone XL pipeline.
This legislation has a chilling effect on activist efforts to engage in the kinds of protest and democratic action that we saw at Standing Rock around the Keystone XL pipeline project.
Critics of this legislative wave argue these bills radically undermine the First Amendment.
We need to see this attack on the First Amendment as part of a larger GOP assault on free speech rights.
Take last year’s Supreme Court ruling in the Janus case.
In her dissent to the Janus decision, which declared that public sector unions’ right to collect fair share dues from non-union members violated those workers’ First Amendment rights, Justice Elena Kagan lambasted the ruling for “turning the First Amendment into a sword.” She criticized it for exploiting the First Amendment to curtail rather than foster freedom and democracy, asserting that the First Amendment “was meant not to undermine but to protect democratic governance—including over the role of public-sector unions.”
Justice Samuel Alito’s majority opinion confirms the ruling turns the First Amendment on its head, restricting rather than enabling employees’ collective speech in the workplace. Arguing in the name of First Amendment rights, Alito prepares the grounds for annihilating free speech, especially workers’ voice in the workplace.
Let’s start with one of Alito’s most obnoxious rhetorical moves. Alito characterizes as “most surprising” what he calls the Union respondent’s “originalist defense” of Abood, the case that set the precedent for allowing public sector unions to collect agency fees. The union, Alito summarizes, argued that “Abood was correctly decided because the First Amendment was not originally understood to provide any protection for the free speech rights of public employees.” Alito then distorts the union’s position with wry and condescending arrogance, writing that “we doubt that the Union—or its members—actually want us to hold that that public employees have ‘no [free speech] rights.’” Of course, unions aren’t arguing to deprive workers of free speech; rather they are pointing out the reality that workers do have only very restricted free speech rights in the workplace as individuals, which makes the role of unions—and their financial ability to fulfill that role—in providing a collective voice for workers and creating some degree of workplace democracy all the more crucial. Alito’s argument, in elevating individual free speech rights over that of the collective, ignoring the reality of unequal workplace power dynamics, actually undermines both the speech rights of the individual and the collective.
Throughout the opinion, he premises his argument on the assumption that employees already have free speech rights in the workplace, arguing it is the Union’s position that overturns precedent, not the Janus decision. He writes, “Taking away free speech protection for public employees would mean overturning decades of landmark precedent.”
As I have elaborated elsewhere, employees don’t have workplace free speech rights.
The Union to which Alito refers isn’t arguing that workers shouldn’t have free speech, but that as individual workers they don’t. This reality needs to be recognized to understand the important role unions fulfill in giving workers a voice.
From all these instances, we need urgently to see is that the First Amendment and democracy itself are under assault.
Supreme Court Justice Samuel Alito opened a Pandora's box that has the potential to give some corporations the right to impose their "deeply held" religious objections to birth control on other corporations.
Clarence Thomas and Antonin Scalia have again set themselves above ethics rules because they are, after all, Koch brother properties.