Friday, December 09, 2022

You Can Take the Girl Out of the Green Party ...

Arizona Senator Kyrsten Sinema has announced she's leaving the Democratic Party and registering as an independent. It appears that Sinema will still be effectively caucusing with the Democrats (she's slated to keep her committee assignments), so to some extent this is just another performance and won't directly upset the balance of power in the upper chamber. Nonetheless, this is entirely in character for a woman whose politics are very slightly left-of-center but also mostly gibberish that she spins up as having a "maverick streak" and being too pure for the confines of the dreaded two party system.

I'm not exactly surprised by the news. Indeed, to some extent I think it's politically savvy. Sinema was a dead woman walking in a 2024 Democratic primary -- Mark Kelly demonstrating that one can be a normal Democrat and win in Arizona took away Sinema's only hope of staving off an inevitable progressive challenger. But formally identifying as in indie gives Sinema two big advantages. 

Rhetorically, as empty as this gesture is, it still will appeal to a certain branch of voter (and, more importantly, pundit) who salivates over "no labels!" and "independence!". At this point, that cadre is the only base Sinema could ever hope to have, so she might as well juice them for all they're worth.

More practically, by laying the groundwork for an independent run now, Sinema arguably boxes off a Democratic challenge more thoroughly than she ever could within the party. Sinema has effectively flipped a dead man's switch and promised to run in 2024 even if it means splitting the vote with an actual Democratic nominee. Do Democrats feel confident they can win in Arizona even with Sinema peeling off a non-trivial part of the vote? I bet that prospect has Democratic strategists feeling real nervous. There are several instances (Alaska springs to mind) where Democrats have simply lined up behind independent candidates in states knowing that they can't win if they split the vote, and Sinema is trying to make Arizona one of them. (The wild card is if Republicans decide not to run a candidate against Sinema, but that strikes me as vanishingly unlikely. The infuriating truth of American politics is that even in her most asinine and frustrating moments, Sinema still isn't even close to being as bad as even a normal Republican, let alone an Arizona Republican).

Tuesday, December 06, 2022

Indonesian Parliament Unanimously Passes Texas GOP Platform

Ted Cruz must be so jealous:

Indonesia’s Parliament unanimously voted on Tuesday to ban sex outside of marriage and insulting the president and state institutions.

Once in force, the bans will affect foreign visitors as well as citizens. They’re part of an overhaul of the country’s criminal code that has been in the works for years. The new code also expands an existing blasphemy law and keeps a five-year prison term for deviations from the central tenets of Indonesia’s six recognized religions: Islam, Protestantism, Catholicism, Hinduism, Buddhism and Confucianism. The code still needs approval from the president, and the government says it will not be fully implemented for several years.

The amended code says sex outside marriage is punishable by a year in jail and cohabitation by six months, but adultery charges must be based on police reports lodged by a spouse, parents or children.

Citizens could also face a 10-year prison term for associating with organizations that follow Marxist-Leninist ideology and a four-year sentence for spreading communism.

Making it illegal to be Communist and Jewish? The Fifth Circuit might have to reconsider its stances on citing foreign law!

Am I Nuts for Thinking a Jewish Florist Should Have To Make an Easter Arrangement?

One thing I tried to impress upon my Con Law students this semester (and every semester) is that the interplay between anti-discrimination law and freedom of speech (and freedom of religion) is complicated and raises a host of thorny questions that defy easy resolution. These issues, of course, lie at the forefront of the 303 Creative case currently before the Supreme Court, which I'm sure will address them with the care, nuance, and sensitivity they deserve [/sarcasm].

But on that matter, I want to flag a hypothetical offered by prominent First Amendment specialist and former federal judge Michael McConnell, to get folks' intuitions on:

What if a Jewish florist is asked to design the floral display of white lilies on Easter Sunday morning at a Christian church? Ordinarily, flowers are just flowers. But the lilies in church on Easter morning are a symbol of the new life in Christ. I cannot believe that a free nation would compel a Jewish florist to construct a symbol of Christ's resurrection—on pain of losing the right to be a florist.

McConnell frames this as his "personal favorite hypothetical", and clearly perceives it as a knockout argument for the pro-free speech/religious liberty side. But perhaps I'm not fully grasping the facts, because speaking as a Jew this prospect doesn't seem that frightening to me.

Suppose I'm a Jewish florist. A customer comes in and says "I've seen the lovely work you've done with white lilies, could you please make a similar display for me?" I agree, since I have loads of experience working with white lilies. The customer then says, "thanks -- we plan on putting this display up in our church on Easter morning!" This prospect ... doesn't upset me. I don't intuitively think I should be able to refuse the customer, notwithstanding the fact that I obviously don't believe in the divinity of Christ, and I don't view continuing to serve the customer as forcing me to avow any beliefs I don't hold.

At root, the reason why this prospect isn't bothersome is because I don't view my customer's use of my flowers as representing my speech. I just design the flowers; what they do with it is their business. If someone sees the arrangement at church and learns that David's Flowers created it, I do not expect them to think "wow, I had no idea David believed in Christ's divinity!" This isn't to say I have no free speech concerns regarding flower arrangements -- I would very much chafe at government regulations that, for example, regulate what shapes I can use in my designs. That part very much is my expression, would be attributed to me -- the churchgoer who compliments the pattern of the flowers would credit those decisions to David's Flowers (I wrote about this a few years ago as the problem of partially expressive conduct).

There are still plenty of tough cases at the margins. I show my customer a preliminary design; they twist their lip and say "I dunno ... it's just not capturing the majesty of Christ's resurrection, you know?" I'm at a loss ("So ... bigger?"). But I'm inclined to think that while such an example might demonstrate why I might be a bad choice to design the arrangement, it doesn't give me the right to discriminate against the customer if they are in fact thrilled with the work I do and have done for other customers.

For me, then, McConnell's hypothetical has the opposite effect than what he intended. And of course, for many Jews -- particularly Jews who live in predominantly non-Jewish areas -- the more salient threat is that local businesses will be given carte blanche authority to refuse to service any of our religious life cycle events lest it be seen as "approving" of them. To let vendors say "ordinarily, a cake is just a cake -- but a cake served at a Bar Mitzvah has religious significance that we, as Christians, cannot approve of" is not a door I want to open.

But perhaps some of my readers disagree. Curious to hear people's thoughts on this.

Hertz So Bad

Hertz Rental Cars has settled a lawsuit after allegations that it had falsely accused numerous customers of stealing cars, resulting in terrifying police encounters, arrest, and even imprisonment. 

The rental car company Hertz Global Holdings, Inc. announced on Monday that it would pay about $168 million to settle disputes with hundreds of customers who claim they were falsely accused of vehicle theft.

The company, which filed for bankruptcy in 2020, occasionally recorded certain vehicles as stolen, even after customers had extended and paid for their rental periods, sometimes leading to frightening run-ins with the authorities, and even jail time, according to lawsuits filed on behalf of customers across the country.

As many have noted, this is all things considered a pretty light punishment -- a monetary fine that will mostly be covered by insurance, and no tangible consequences for the executives responsible for the policy itself.

I have a general rule of thumb when transacting in a business sector with a somewhat skeezy reputation: Always work with the company that most recently was caught in a high-profile scandal, because they're most likely to be on their best behavior in the near-term (it's why I bank at Wells Fargo!). But even taking that rule into account, I stay away from Hertz. The bespoke Grand Theft Auto expansion pack is just the start of their customer service trainwreck.