It's Not About Liberals Refusing to Compromise: Respect for Marriage Act Edition

Today, the Respect for Marriage Act passed the House by a 267-157 vote. Forty seven Republicans voted in favor of the bill, dwarfed by the 157 who voted against (all nay votes came from Republicans).

Contrary to popular press coverage, this law does not "codify same-sex marriage". It appears to be far narrower, only ensuring that same-sex marriages performed in one state must be acknowledged in other states. As far as I can tell, it does not forbid states from barring same-sex marriages performed in their borders. In effect, what it "codifies" is not Obergefell but Windsor.

Which makes the overwhelming Republican opposition all the more striking.

This bill could not have been more modest in ambition. It does not simply secure the status quo. It secures a significant retreat from the status quo, at the expense of gay and lesbian Americans' basic civil rights. And even still, Republicans voted against it by more than a 3:1 margin, and its prospects for passing a Republican-led Senate filibuster look dim.

It has been suggested that if Democrats were just a little more moderate, a little less all-in, that Republicans would be willing to work with them. It is the liberals' insistence on going all-or-nothing that compels conservative opposition. Alas, conservatives just can't help themselves. Murc's law strikes again.

No. The Respect for Marriage Act was written to be about as timid and "moderate" as one could possibly imagine without simply running all the way back to Bowers v. Hardwick. And still, it probably won't pass, because Republicans remain overwhelmingly opposed to any degree of equality for gay and lesbian Americans.

That's their position. They're not hiding it. They're not reluctantly compelled to vote against these laws because of some mythic liberal overreach. That's their position. Stop pretending that Republicans don't believe what they clearly believe.

The Goose and the Gander of the Bruen Prohibition on "Balancing"

Eugene Volokh flags a case out of California involving a man allegedly prohibited from carrying a firearm due to a mental health hospitalization that occurred twenty years ago, when the man was in middle school. Federal law generally prohibits an individual "who has been committed to a mental institution" from owning, possessing, using, or purchasing a firearm or ammunition. The man, who later enlisted in the Marines and worked in law enforcement, has not had any other mental health issues since that single incident.

The court in this case ended up ducking the major constitutional issue for technical reasons we don't need to go into, but suggested that the relevant section of federal law was probably still constitutional after Bruen because several justices in that case specifically identified bans on mentally ill persons carrying firearms as among the sort of historical restrictions that had been permitted at the time of the framing. Prof. Volokh, by contrast, thinks the law should be unconstitutional insofar as it does not require any showing that the prohibited individual is presently mentally ill. The facts of this case, in particular, suggest a person for whom the law as written sweeps too broadly.

I make no judgment on whether federal law should, as a matter of policy, create such a carve-out for persons who seem to no longer be mentally ill. However, it does seem to me that this sort of analysis represents exactly the sort of "balancing" of interests that Bruen quite categorically forbade courts from engaging in. From Bruen's perspective, the sole question a court should consider is whether or not this sort of firearms restriction -- in this case, restrictions blocking the mentally ill from possessing firearms -- was historically present at the time of the framing. If the answer is no, then the restrictions are unconstitutional no matter how good a reason we might think exists for imposing such a restriction. But the flipside has to be true too: if the answer is yes, then the restrictions are constitutional no matter how unfair or untailored we might think they might be as applied to a given individual. And since the Court has already seemingly conceded that restricting the mentally ill from possession of firearms is one of the restrictions historically permitted, that should end the discussion.

The counterargument, alluded to be Volokh, is that the relevant basis for historical comparison is not the existence of "laws prohibiting the mentally ill from possessing firearms", but rather "laws prohibiting persons who once had a mental health crisis but have not had any symptoms for decades from possessing firearms." At one level, this is a familiar problem of abstractness versus specificity, one which offers courts yet more discretion to approve or disapprove of firearms regulations that they like or dislike. As I said in my last Bruen post, the application of Bruen by the judiciary will not ultimately be controlled by lawyerly parsing of the constitutional or precedential text; it will be a matter of personal judicial preference -- and the specificity problem identified here is just another opportunity for judges to disguise their policy preferences under the cloak of a legal rule. 

But if we make-believe that the putative legal rule will matter--well, Bruen promised that the relevant requirement for a historical analogue was not a "twin". And there are good reasons for that, which go beyond allowing for some amount of adjustment for societal developments as centuries pass. Requiring that state or congressional gun restrictions map on precisely to policy initiatives passed in the 19th century significantly limits the legislature's policymaking authority even in a domain where the Court agrees the legislature has the right to impose restrictions. It is facile to say that restrictions on firearms possession by the mentally ill is permitted, but Congress must only implement those restrictions via the precise programmatic means used in the 1800s. The constitution doesn't typically encode specific policy demands, it encodes general rules and standards that broadly define the parameters through which the democratic branches are allowed to fill in the details.

Given that, it seems to me that as far as Bruen is concerned, the germane constitutional question is whether the restriction in question is of the class of restrictions that had been historically been permitted. Once we answer that question in the affirmative, then Congress or the states should be given considerable leeway in figuring out how it wants to instantiate that restriction -- that inquiry being primarily a policy question which courts should be reluctant to intrude upon. Certainly, Congress cannot simply declare anything to be a "mental illness" restriction, anymore than New York in Bruen was allowed to declare the entire city of New York a "sensitive place". But it's equally clear that restricting persons who had a serious mental health episode from owning firearms is much more clearly under the umbrella of "restrictions on the mentally ill". The opposition to that rule is not really that it falls outside the category, it's that as applied here something like a "one strike rule" feels overbroad and unfair.

And maybe it is -- that rule may be too harsh. But again Bruen says it is not the judiciary's business to weigh competing interests. Mental health restrictions are historically permitted, this is Congress implementing such a restriction -- end of discussion. What is good for the goose is good for gander. That is, unless Bruen actually means what many of us suspect it to mean -- not an actual rule that constrains judicial partisanship, but a thin cloak for imposing pro-gun outcomes, text of the alleged legal rule be damned. We'll see. I'm not optimistic.

When Will Dead and Maimed Women and Girls Become Old News?

It's been less than a month since Roe v. Wade was overturned, and already the consequences are being felt by women and girls around the country whose health and lives are suddenly imperiled. Many of these stories have gotten significant coverage. To name a few:

• The ten-year-old rape victim who was forced to travel to Indiana for an abortion because it would have been illegal in Ohio.
• The patient in Texas who was in the process of miscarrying but was placed in mortal peril because doctors could not operate until the fetus stopped registering a heartbeat.
• The Wisconsin woman who was left to bleed out for ten days during a miscarriage because doctors could not be sure treating her would not violate the state's anti-abortion laws.
• The hospitals in Texas who are turning away pregnant patients facing complications because they fear legal liability for providing basic medical care.
• The pharmacists refusing to dispense certain drugs necessary for medical treatment because they think they could also be used to facilitate abortions.
• The decision of the Idaho Republican Party to support banning abortion even in cases necessary to save the life of the mother -- a legal mandate requiring mothers to die.

All of these cases occur fresh in the wake of the Supreme Court's Dobbs decision. All demonstrate, in vivid detail, how the health and safety of women and girls in America has been dramatically imperiled by the Court's imperious decision. Some right-wing commentators have labeled in "suspicious" how many of these stories are emerging so shortly after Dobbs. There is nothing suspicious about it: of course the consequences of banning abortion would manifest immediately after banning abortion. These stories are what will happen in the first month after Dobbs, and the second, and the third, and the twelfth. These stories are the new normal.

Which raises an important question: what happens when they become normal?

These stories are getting coverage now because they're novel. They are breaking reports about the new reality we live under. But in two, three, twelve months, these stories will still be occurring, but they'll no longer be new. Will they still be covered? Or will the media move on?

One can easily imagine in September and October and November newspaper editors deciding that the latest instance of a child rape victim being forced to scurry across state lines, or a miscarrying woman being left to bleed out in a hospital, or a patient denied prescribed medication by an overzealous pharmacist, are yesterday's news. They'll recede into the background, not because they've gone away, but because they're omnipresent.

This isn't an inevitability. News networks don't skip covering crime stories just because "there are muggings every day". One would hope that they'd apply the same logic to women. Every time one of these laws maims or kills or harasses a girl or woman in their community, that should be a story. The drumbeat shouldn't stop, because the story isn't stopping. It should never be "old news" .

We'll see. I'm skeptical. But we'll see.

The Default Conservative Response to Inconvenient Facts is to Cry "Liar!"

Many of you have probably been following the horrific story of a ten-year old rape victim from Ohio who was forced to travel to Indiana to have an abortion following her home state's criminalization of the procedure.

No doubt some of you witnessed a collective right-wing response to the story, which was simply to declare it a lie. The Wall Street Journal editorial board called the story "too good to confirm". Ohio Rep. Jim Jordan (R) called it "another lie". National Review contributor Michael Brendan Dougherty called it a "fictive abortion and a fictive rape." Ohio Attorney General Dave Yost suggested the story was a fabrication because he hadn't heard a "whisper" about such a rape case from local law enforcement officials. It was everywhere.

Then the story was (further) confirmed, and those who called it a lie retreated with various amounts of egg on their face. Which is to say, they mostly said they were right to assume the story was made up even though it wasn't.

This has been the main meta-media response to the controversy: agreeing that there were "red flags" about the story such as its "weird timing" that meant we should all have taken very seriously the collective right-wing declaration that the story was a hoax, even though it turns out to have been horrifyingly true.

There were no significant "red flags" here. It is not suspicious that the Indianapolis Star did not publish the name, address, photograph, and social security number of a minor rape victim. It is not "weird" that stories of the horrible consequences of criminalizing abortion would begin to emerge shortly after abortion was criminalized. Obviously, if there is actual evidence of malfeasance or fabrication, one should look into that. But that wasn't present here.*

No, what happened here is very straightforward: A story was published that constituted an inconvenient fact for conservatives. So they declared it to be a lie. That's it. That's all that prompted the reaction. No "red flags", no "reasonable grounds to question". The story was inconvenient, and the response was to cry "liar!"

If we had to do meta-coverage of this story, that's what should have been the frame. It is, after all, the same basic instinct that motivated the cries that the 2020 election was "stolen". What prompted those cries was not any "evidence" or "suspicions" or "red flags". Biden winning was an inconvenient fact, and the default right-wing response to an inconvenient fact is to declare it a lie. Same reason why January 6 insurrectionists are declared to be "antifa". Same reason why mass shootings are alleged to be false flags. Same thing for global warming, same thing for whether Israeli soldiers shot Shireen Abu Aqleh, same thing for Trump's connections with Russia. This is not something occurring in isolation. It is a pattern of behavior, and a deeply dangerous one at that. It's always a lie, it's always "fake news".

So if the media wanted to soul-search its coverage, it should start there. What does it mean that conservatives now reflexively and instinctively declare any story that troubles their ideological waters to be a lie, and what does it mean that the media still views those cries as having credence?

This response, after all, is toxic to the proper functioning of democratic politics. Yet rather than identify it for what it is, let alone push back on it, the media aids and abets it with thumb-sucking self-abnegations agreeing "questions were raised." No they weren't! The mere fact that Republicans don't like a given fact or event or story about the world is not and should not be enough for the media to agree that its truth is up for dispute.

So that's the story I want to see. I want a deep dive into how conservatives have begun calling any inconvenient fact a lie. I want a clear and unvarnished explication of the pattern of behavior, contextualizing the most recent instance by reference to other prominent cases where they've run that same playbook. I want comments from self-reflective journalists about why these unevidenced cries of "liar" are given credence, and whether it is appropriate to continue to give credence to those cries going forward.

That's the metastory. Someone should get on it.

Oh, and for those of you wondering: now that the story has been fully confirmed, conservatives are sweeping into action ... by launching a criminal investigation of the doctor who cared for the child and proposing legislation that would criminalizing giving the child an abortion in Indiana. Because the current Republican orthodoxy is that adolescent rape victims should have to give birth or die trying.

* The closest exception I'll cop to is the Ohio Attorney General saying he hadn't heard of such a case, with the strong implication that if the case existed he would have known about it. But since it turned out there was such a case, the proper response for the media going forward is to treat Attorney General Yost as presumptively uncredible unless proven otherwise. Of course, the actual response will be to continue to treat uncorroborated declarations by Yost as rock-hard proof, while spinning in circles to explain why a doctor going on the record about an event they have first-hand knowledge about is too flimsy to take seriously.

Is Relief an Independent Emotion?

This may be one of those thoughts that made more sense at 2 AM last night, but I want to run with it.

The other day, I decided that "relief" was an emotion I felt very strongly. Some people get really angry, some people get really sad, some people get really happy -- I get really relieved.

And then I thought: does that make any sense? Doesn't "relief" necessarily have to piggyback on another emotion -- and that's the emotion you feel strongly or weakly?

If you're stressed about something, and that something resolves itself, you feel relief. If you feel a strong sense of relief, one might say that one has significant propensity for relief (in the same way that if you feel a strong sense of anger, you might say you have a propensity for anger). That was my initial thought -- relief hits me hard. But then I wondered whether that was a coherent thing to say, or whether the underlying stressor is what I feel strongly, and a strong sense of relief is simply the mirror image of that.

The answer must lie in whether it is possible to feel very relieved about something that is only moderately stressing you. I think that characterizes me -- I love the feeling of catharsis even without the underlying tension -- but it still doesn't quite feel like it makes sense.

Thoughts welcome.

Yes, the Attack on Jews for Engaging in a Jewish Ritual at a Jewish Holy Site was Antisemitic

As you might have heard, a few days ago ultra-Orthodox extremists disrupted Bar and Bat Mitzvah ceremonies that were being held at the Western Wall. The rioters called the ceremony attendees "animals" and "Nazis", one desecrated a Siddur by tearing out a page and blowing his nose with it.

In response, Deborah Lipstadt, in her role as Special Envoy for Monitoring and Combatting Antisemitism, tweeted the following:

Deeply disturbed by the troubling actions of a group of extremists last week at the Kotel. Let us make no mistake, had such a hateful incident — such incitement — happened in any other country, there’d be little hesitation in labeling it antisemitism.

Deeply disturbed by the troubling actions of a group of extremists last week at the Kotel. Let us make no mistake, had such a hateful incident — such incitement — happened in any other country, there’d be little hesitation in labeling it antisemitism. https://t.co/t1eUs0Fm3b

— Special Envoy Deborah Lipstadt (@StateSEAS) July 5, 2022

Quite a few critics have pushed back on Lipstadt's tweet, contending that it was wrong to label the incident "antisemitic" (even if it was otherwise risible), presumably because it was a "Jew-on-Jew" incident. These include former Ambassador David Friedman, David Collier, and Ami Magazine. But there are also staunch progressives in the critical camp, such as Abe Silberstein and Joel Swanson. 

Some, in turn, have defended Lipstadt by suggesting that she did not actually call the incident "antisemitism", but rather said it was an incident of a sort that would be labeled antisemitism if it had "happened in any other country." (This somewhat more diplomatic framing, in turn, was seized on by a different set of critics -- including Mitchell Plitnick -- who thought Lipstadt was being too wishy-washy, thus proving once and for all that Lipstadt's position is absolutely unwinnable).

Whether or not Lipstadt's precise framing constitutes her calling this antisemitic, I will not say. But whether she said it or not, I will: yes, this incident was antisemitic, and we shouldn't have trouble saying so.

The argument against calling this attack antisemitic is, simply put, that it was an attack done by Jews. The problem is that, while it is fair to say we should be especially cautious in accusing Jewish actors of antisemitism, very few critics believe that it is impossible-in-concept for a Jew to act in an antisemitic fashion. Collier, for example, strongly believes that the Jews in organizations like "Jewish Voice for Labour" (a group dedicated to dismissing antisemitism allegations against Jeremy Corbyn as "smears") are antisemitic. Others believe similar things about, e.g., Tablet Magazine publishing a conspiratorial screed positing a shadowy cabal of Jewish financiers pushing a trans agenda. So then the question is whether this attack falls into the category -- limited but not null -- of Jews acting in an antisemitic fashion.

The answer, to me, seems a clear "yes". Indeed, I have trouble wrapping my head around the argument to the contrary. It is hard to imagine a cleaner case of antisemitism than violently attacking Jews for engaging in a Jewish religious ritual at a Jewish holy site. I will once again refer to the Nexus definition of antisemitism, because I think we get it right and we particularly get it right here:

Antisemitism consists of anti-Jewish attitudes, actions or systemic conditions. It includes negative beliefs and feelings about Jews, hostile behavior directed against Jews, and conditions that discriminate against Jews and impede their ability to participate as equals in political, religious, cultural, economic, or social life.

The attack on the Bar Mitzvah was a very clear and tangible attempt to "impede [Jews'] ability to participate as equals in ... religious life." It therefore is antisemitic. Full stop. A great virtue of our definition is that it is less concerned with mining people's psyches to determine whether they have the precise mental attitudes towards "Jews" in order to qualify as antisemitic, and instead looks to tangible effects on the equal standing of Jews in concrete spaces. Few can deny that the Jews who were seeking to engage in this sacred ritual were denied that equality by their attackers. And in our frame, it simply does not and should not matter what underlying ideology provided the attackers' particular apologia for their assault.

Lipstadt's critics' attempts to recast what happen as some sort of intra-communal theological debate miss the point. Orthodox, Conservative, and Reform Jews have all sorts of disagreements on matters of Jewish law and practice. Those disagreements, even if passionately stated, are not antisemitic and are not what drives labeling this incident antisemitic. What makes it antisemitic is the very direct and tangible obstruction of these Jews' ability to participate as equal in religious life -- an obstruction that targeted these Jews in their capacity as Jews and in the course of them living as Jews.

Some have sought to frame their problem via the risk of turnabout: what of certain liberal Jews who take a dim view of Haredi or other Orthodox compatriots? I don't find this objection compelling. If the claim is that it is conceptually impossible for a Jew to engage in discourse or practices directed at Orthodox Jews that are antisemitic, I don't believe it. If the claim is that Lipstadt's tweet will set a "precedent" whereby in a future DeSantis administration the bulk of American Jewry is deemed "antisemitic" because it dissents from Orthodox Jewish ideologies, I think it's irrelevant -- what Deborah Lipstadt does or doesn't tweet is utterly epiphenomenal to the inevitable abuse that will pour out of a DeSantis administration.

Better, then, to focus on the specifics of this case, and what happened to these Jews. They were vicious harassed and attacked for the sin of practicing their Judaism in a Jewish holy place. If it were any other country, or any other set of perpetrators, it'd be antisemitic without question. I fail to see compelling evidence that the extremists who attacked Jews at the Western Wall in Israel deserve some sort of special exemption from the general rule. Our concept of antisemitism is capacious enough to include them. And one that couldn't, I'd wager, is one too cramped to do much useful work at all.    

The Most American of July 4ths

Today, my wife and I continued the process of moving into our new home -- the "American dream". We also watched the Nathan's Hot Dog Eating contest, ate a slice of apple pie, and mourned a mass shooting.

Hard to imagine a more American day than that.

Records!: A HIPAA Tragedy

HIPPA is not a real thing. But HIPAA is very real, and while it does not "protect" your right to wander through the public while carrying communicable diseases, it can cause headaches in other ways -- such as when you wish to send your medical records from one healthcare provider to another.

There are three characters in this play, aside from myself. As you may know, I have an eye condition called keratoconus. It was diagnosed when I was in Berkeley, and most of the care I've had surrounding it was done via my old Berkeley healthcare provider. Since moving to Portland, of course, I have a new healthcare provider. But they don't have the right resources to treat keratoconus in-house, so they have since referred me to a specialist. 

My quest is to transfer the medical records from my old healthcare provider to the specialist my current provider had referred me to. The problem is that these records are rather substantial -- 180 pages long, in fact.

Act I

Specialist: ... and if you could send us any records you have of your past keratoconus treatments, that'd be great.

Me: Sure, I'd be happy to.

[I go home]

Me: Let's see ... medical records. Oh yes, I remember -- I had Old Provider send them to me a few months ago. They're on a PDF on my computer. How convenient.

[calls specialist]

Me: Hello! I have the medical records you want. How can I send them over to you? Your web portal says the file is too large for me to attach to an internal message.

Specialist: Oh, sorry. Can you fax it to us?

Me: Pardon?

Specialist: Fax. Or snail mail it to us.

Me: Well, it's 180 pages of records, so ... no. Do you have email?

Specialist: No, we can't accept them by email. It's a HIPAA thing.

Me: Then how come old provider emailed them to me?

Specialist: I don't know. Maybe they're lawless anarchists. You could physically bring them to us, maybe?

Me: You want me to physically print and deliver 180 pages of records to you? When I already have it as a digital PDF?

Specialist: Yes, that'd be fantastic.

Me: No, it wouldn't. There's no way to electronically transfer the document?

Specialist: Well, there is one way. 

Me: Wonderful.

Specialist: You could put it on a CD for us, and mail that.

Me: ... a CD. 

Specialist: Yes, I think that would work.

Me: Since it is 2022, how about a USB thumb drive?

Specialist: No.

Me: [Incredulous silence]

Specialist: Might I suggest Kinko's?

Me: [Incredulity yielding to bubbling rage]

Specialist: Or you could call your current provider, and ask them to fax the records. They do it all the time.

Act II

[Calls current provider]

Me: Hello! Could you please check to see if you have my old medical records, and send them to specialist?

Current provider #1: Sorry, wrong department. You need the records department. Shall I transfer you?

Me: Yes, please and thank you.

[Hold music]

Current provider #2: You have reached the records department. For all medical records except dental and vision records, press 1.

Me: Well, I need vision records, so ...

Current provider #2: For dental records, or general inquiries, press 2.

Me: [Waits patiently for "vision records" option]

Current provider #2: ... Would you like to hear these options again?

Me: Um, I guess I fall under "general inquiries"? 

[Presses 2]

Current provider #3: Hello, you reached "general inquiries". Can I help you?

Me: I'd like some vision records released.

Current provider #3: Oh, sorry, you need our records department for that. This is just the general information line. Shall I transfer you?

Me: [sigh] ... yes.

[Hold music]

Current provider #2: You have reached the records department. For all medical records except dental and vision records, press 1....

[Presses 1]

Current Provider #4: Hello! How can I be of service?

Me: I'd like to have some vision records released.

Current Provider #4: Sorry, that's not our department. You need the "records release" office. Shall I transfer you?

Me: Death is so near, and yet so far.

Current Provider #4: What?

Me: Yes, please transfer me.

[Hold music]

Current Provider #5: Records release department!

Me: I'd like to have some vision records released.

Current Provider #5: I can help with that!

Me: Praise be!

Current Provider #5: When were the records created?

Me: From [date to date]

Current Provider #5: That's from before you were a member.

Me: Yes. But I believe you have a copy?

Current Provider #5: Maybe we do, maybe we don't, but I can't release them. They're not our records.

Me: I know -- they're my records. Can't I authorize you to release them?

Current Provider #5: No, sorry. You'll have to call your old provider and have them fax the records. They do it all the time!

Act III

Me: Hello?

Old Provider: Hello! We received your request to have your medical records faxed to specialist.

Me: Great!

Old Provider: The problem is, those records are 180 pages. 

Me: I know.

Old Provider: That's too many for us to fax. 

Me: You're kidding.

Old Provider: Can we email it instead?

Me: Somebody is going to die.

Fin.

Machiavelli's Court

One thing the far-right Supreme Court has learned well, that Democrats in Congress would have done well to learn (it's probably too late now), is a lesson from Machiavelli about exercising power. To wit: if you feel compelled to take certain actions that you know are unpopular, or will engender backlash -- do them all, do them early, and do them all at once.

Do not try to spread them out. Do not feel the need to pull back on some to balance the others. Do not hem and haw with baby steps. Do everything you want to do early, and immediately. The backlash will come, but the backlash won't be materially different between one outrageous thing and ten outrageous things. Spreading them out just creates new moments of fresh anger. Purported sops won't make people forgive in the moment (are you feeling any less livid at the Supreme Court because of Biden v. Texas?). Get them all out of the way in one fell swoop. Once your opponents are crushed, then you can start indulging in gestures of peace. If you feel like it.

From abortion, to guns, to climate change, to funding religious schools, to prayer in school, to Indian sovereignty, to racial gerrymandering, the Supreme Court delivered an orgy of far-right fantasies over the course of barely a week. Liberals are furious. How could we not be? But we're also reeling. How could we not be? If a few of these decisions came out the other way, would we be materially less furious? Unlikely. If the decisions had been spread out, would our rage be dampened? No, if anything it would have been reignited anew each time. 

The Supreme Court acted decisively and without remorse. Its response to any notion of moderation or gesture of even-handedness was an enthusiastic middle finger. The strong take what they may, and the weak suffer what they must. Not exactly ideal behavior from a court, but for those who see themselves as princes -- well, Machiavelli would be proud.

And in turn, failing to follow this advice is the mistake Democrats made over the past two years (and of course, we can lay blame primarily at the feet of Synema and Manchin here, with some assist from the "Problem-Solvers Causers Caucus"). Democrats needed to do big things. Those things would be controversial. Talking them out indefinitely in a bid for a compromise that would never occur only would bleed resources (ask Barack Obama how that went with the ACA). Better to slam them through at the start. Voting rights, anti-gerrymandering, DC statehood, BBB, protecting abortion rights. Yeah, these things would be controversial. They wouldn't be any less controversial if they're spread out in drips and drabs. Do them all, do them together, weather the storm, and then spend the rest of your time consolidating your position. 

Alas, now its probably too late. This may be why, even after literally everything that's happened, if there was a single item I could slam through Congress before the turnover it'd be DC statehood. It's not necessarily more important than other candidates -- though DC's status as an American colony is a moral disgrace of epic proportions -- but it'd make it more likely Democrats would hold Congress through 2022 and so could try again next time. Democrats having power is not a sufficient condition for reversing these terrible trends, but it's a necessary one. It's hardly guaranteed they'll learn their next time around; but we'll never find out if there never is a "next time".

Law vs. Antisemitism Conference 2023: Call for Papers

 CALL FOR PAPERS: 2^nd Annual Law vs. Antisemitism Conference (2023)

Lewis & Clark Law School, in association with the Lewis & Clark Law Review and the Law vs. Antisemitism Project, are proud to sponsor the 2nd Annual Law vs. Antisemitism Conference, to be held March 26-27 at Lewis & Clark Law School in Portland, Oregon. Conveners are David Schraub (Lewis & Clark), Robert Katz (Indiana University), and Diane Kemker (Southern University). The keynote speakers will include Eric K. Ward, Executive Director of the Western States Center and one of the nation’s foremost experts on the connection between antisemitism and White supremacy, as well as Steven M. Freeman, Vice President of Civil Rights and Director of Legal Affairs for the Anti-Defamation League. The Conference will begin on the afternoon of Sunday, March 26, and run throughout the day Monday, March 27, 2023.

The conference is interdisciplinary, and we welcome submissions on the intersection of law and antisemitism from academics and practitioners of all backgrounds and all statuses. Selected articles presented at the conference will be published as a symposium issue in Volume 27, Issue 4 of the Lewis & Clark Law Review (forthcoming in 2023).

Possible topics for conference presentations and papers may include, but are not limited to:

• Contending definitions of antisemitism itself (International Holocaust Remembrance Alliance (IHRA), Nexus, Jerusalem Declaration on Antisemitism (JDA))
• Legal history as it relates to the regulation of Jewish immigrants and Jews in colonial and antebellum America
• Title VII and employment anti-discrimination law as a tool against antisemitism
• Antisemitism in the legal profession
• Intersections of antisemitism and anti-trans or homophobic movements
• Jewish involvement/antisemitism in civil rights movements, including BLM
• Holocaust reparations
• First Amendment speech issues (hate speech online and elsewhere, Holocaust denialism)
• First Amendment religious freedom issues as these relate to Jews and Judaism, including Establishment Clause and Free Exercise Clause controversies
• Implications of recent Supreme Court decisions on abortion, guns, education, religious liberty, or other matters as they relate to Jewish equality
• Jews and Whiteness, Jewish Anti-Black racism/Black antisemitism
• Antisemitism and White nationalism/White supremacy
• Antisemitism and antisemitic laws in American legal history
• Intersectional issues (Jews as a religious/ethnic group; LBGTQ Jews; Black Jews, Jewish women)
• The use of zoning and land-use law by and against Jewish communities, the regulation of physical space for Jews in America
• The history of Jewish lawyers and organizations involved in impact litigation in cases involving Jews and others
• The legal relationship between anti-Zionism and antisemitism
• BDS and Israel boycotts on campus and by state/local governments, international boycott law as applied to Israel

If you are interested in presenting, please submit a one-page Abstract to lawvsantisemitism2023@gmail.com. Any questions can be sent to the conference organizers at dschraub@lclark.edu, rokatz@iupui.edu, and/or diane.klein@sulc.edu. Abstracts will be reviewed on a rolling basis but are due by October 1, 2023. We hope to be able to offer some travel grant support to cover expenses associated with attendance at the conference (plane/train fare, hotel, childcare) for persons who lack institutional sources of funding.

If you are interested in having your paper considered for the Law Review symposium issue, please indicate this in the abstract. Authors seeking to have their paper included in the symposium issue should have a full draft completed by February, 2023.

Law vs. Antisemitism Project Workshop for Legal Educators: Sunday, March 26, 2023

The 2nd Annual Law vs. Antisemitism Conference is part of a larger project which includes the development of a law school course in law and antisemitism and the creation of a first-of-its-kind casebook to support the course. If you are a legal educator and would be interested in participating in any part of this project, including Syllabus and curriculum development, casebook chapter creation or review, please consider arriving early to join the Workshop. If you are interested in participating in the Workshop, please indicate this in the email accompanying your Abstract, or send a separate message to Diane Kemker (diane.klein@sulc.edu) no later than October 1, 2022.

Cannibalistic Precedent-Eating Leopards

There's a darkly amusing pattern that emerges during periods of Republican governance. As a general rule, Republicans support deregulating any arena to enable maximum exploitation and abuse of vulnerable people. In particular cases, though, individual Republicans might have personal reasons for opposing such exploitation and abuse. They have a niece who is diabetic, so they support limiting the price of insulin, or they have a sibling who is disabled, so they support expanding anti-discrimination protections for the disabled, or they have a parent with cancer, so they support enhanced government funding for cancer research, or they have a friend who died of gun violence, so they support reasonable gun control regulations.

The problem, though, is that while each Republicans has their personal exception, they don't have the same exceptions. So for each exception, the Republican is left alone with only Democrats backing his initiative, and is shocked and dismayed that his colleagues could be so heartless as to not even support insulin price limits/disability protections/cancer research/gun control. They then dutifully return back to the Republican mass and vote against their colleagues' exceptions, in accordance with the general rule, and so none of the exceptions ever pass. Rinse, wash, repeat forever.

One suspects we're about to see a similar dynamic on the Supreme Court, with a 6-3 conservative supermajority that is out to draw blood. For the most part, the six right-wing votes are aligned -- like all Republicans, they are eager to jump on any opportunity to hurt the vulnerable and historically marginalized. But on individual issues, there may be an exception for a particular Justice. And that Justice will make a plea for his or her colleagues to slow down, to respect precedent, to here make an exception to the general principle of "the Constitution means what the founding fathers Texas GOP platform committee says it means". And the colleagues will say "LOL no, get bent," and the typical 6-3 decision will just be a 5-4 decision instead.

Like with congressional Republicans, the "exceptional" justice will rotate depending on the issue. On abortion recently, it was Chief Justice Roberts, whose opinions in Dobbs and Jackson were summarily ignored by his colleagues. Today, it was Justice Gorsuch on Indian law, as the Supreme Court in Oklahoma v. Castro-Huerta, over a passionate Gorsuch dissent, radically undermined tribal sovereignty and cut off a signature Gorsuch opinion from just a few years back (McGirt v. Oklahoma) at the knees.

McGirt was a 5-4 opinion which held that much of Oklahoma remained tribal land, and that therefore under longstanding Court precedent the state of Oklahoma lacks criminal jurisdiction over crimes committed by Indians in those areas. Many of us, myself included, wondered whether McGirt would survive the new regime on the Court (nobody really knew Barrett's position on Indian Law issues). But boy were we thinking too small. The Court did not overrule McGirt, it overruled Worcester v. Georgia, the famous case that respected Cherokee tribal autonomy against attempts by Georgia (with a healthy assist from Andrew Jackson) to obliterate the tribe. Nixing Worcester was not to my knowledge on anyone's radar screen. But the YOLO Court must have asked itself why it should settle for overruling a case from 2020 when you can take down a seminal Indian Law case from 1830 and neuter the 2020 one in the process? Now states presumptively have criminal jurisdiction over crimes committed by Indians on tribal land, undoing nearly two centuries of law and precedent that respected tribal sovereignty in this area.

Justice Gorsuch's dissent is quite strong -- and, in fairness, this is an area where he's been consistently excellent on. But I can't help but feel like it is one big cry about precedent-eating leopards eating his precedent, when he himself is part of the same pack of precedent-eating leopards. Yes, they're cannibalistic precedent-eating leopards and they're coming for you too. You'll do the same to one of them shortly. What sympathy do you expect here?

This teeny, tiny bit of schadenfreude is the only bright spot in yet another grim day from the Supreme Court, which just is bestowing horror after horror upon the American people.

The "Plain Text" Threshold Requirement of Bruen

One aspect of the Supreme Court's recent Bruen decision I haven't heard a lot about is the apparent caveat that its "historical tradition" test only applies in circumstances where "the Second Amendment’s plain text covers an individual’s conduct." This, of course, suggests that there are other instances where the "plain text" does not cover the conduct, in which case a different, as-yet-unknown standard, applies. What sorts of gun regulations might skirt Bruen review because they are not covered by the "plain text"?

At one level, this inquiry is specious for at least two reasons. The first is that the Second Amendment's text is the furthest thing from "plain". It is notoriously one of the least well-written constitutional clauses, which perhaps is one reason why nobody "discovered" it covered an individual right to bear arms until over two centuries after its adoption, and why even following those decisions every lower court in the country adopted a method of interpretation that the Supreme Court summarily dismissed as incorrect in Bruen. Some plainness!

The second reason is that practically speaking the rule in Bruen will not be the rule in Bruen. Rather, the rule will be "strike down whatever gun regulations conservatives don't like", and no amount of lawyerly parsing of Bruen's language is going to change that. The Supreme Court or the Fifth Circuit, salivating at the prospect of pouring more guns onto the streets, is not going to even stutter just because it encounters a reading of Bruen that appears to stand in their way. Bruen is what they say it is, and what they'll say it is is a blank check to strike down gun regulations with wild abandon. So to that extent, this entire exercise is one of false hope.

But if we play make-believe for a moment, it seems to me that the majority of contentious gun regulations are not plainly covered by the Second Amendment, even under the Supreme Court's expansive view. "Plain", after all, is somewhat of a term of art in law. "Plain error" review doesn't cover all errors, only truly obvious, slap-you-in-the-face errors. The rule that tribal courts have, in the first instance, the right to determine whether they have jurisdiction over the case comes with an exception in cases where it is "plain" that they do not, but that exception is again does not cover all cases where tribal courts lack jurisdiction -- only the clear, indisputable cases.

The Court's recent gun cases -- Heller, McDonald, Bruen -- have all involved regulations that, more-or-less, effectuate a total bar on an individual's ability to keep and bear arms (where the former seems to cover one's home, and the latter the public sphere), or at least those arms which are common in the modern era such that they are effective as means of self-defense. Everyone in Chicago, and the average Manhattanite, cannot carry a gun at all. This, the Court says, plainly is covered by the Second Amendment's text. Laws which flatly prevent either a certain type of person or a person in a particular location from carrying any sort of (modern) armament can only be justified if they fit into historical categories where such absolute restrictions had been permitted.

The examples of gun regulations which the Court says should be assessed and may pass under Bruen also are of this sort. A ban on felons possessing guns is an absolute ban on that sort of person bearing arms. Can it be justified? Yes, the Court intimates, under the historical practice of limiting gun ownership by dangerous persons. A ban on carrying a gun into a courthouse is an absolute ban on bearing arms in that setting. Can it be justified? Yes again, the Court suggests, under the historical practice of limiting arms in "sensitive places". New York's "may issue" licensing regime means that large swaths of New Yorkers, based on largely discretionary bureaucratic judgment, cannot carrying a gun in public. Can that be justified? No, the Court says, one cannot call all of New York City a "sensitive place". All of these examples represent situations where one could say that the state is trying to create an absolute gun-free space for a particular class of person or location, an endeavor which the Court could say "plainly" implicates the Second Amendment's right to keep and bear arms.

But many important gun regulations are not of this sort. Consider California's assault weapons ban, which just was sent back to a district court to assess in the wake of Bruen. Most commentators, it seems, think the relevant inquiry after Bruen is whether an assault weapons ban represents the sort of gun regulation that has a historical parallel in the relevant constitutional time period (the typical claimed parallel is to rules governing "dangerous and unusual" weapons). I would argue, though, that there's a threshold question of whether Bruen applies at all based on whether the law plainly is covered by the Second Amendment. Unlike the rules at issue in Bruen, Heller, and McDonald, the assault weapons ban does not create or seek to create a "gun-free space". Individuals remain perfectly able to both keep and bear arms that can practically vindicate their personal right of self-defense outside the home. Being restricted from bearing the particular armament of their choice is not the same thing as being blocked from keeping or bearing arms in totality. So the "plain text" does not cover the California law, and accordingly the Bruen test is inapposite.

Again, it is important to stress that the position here is not that there is no argument that Second Amendment covers a right to possess assault weapons. There undoubtedly are such arguments, and I suspect such arguments are not at all frivolous. Perhaps they're even persuasive. But again, the issue is not whether the Second Amendment covers an assault weapons ban. The question is whether the plain text covers it. That can and should be viewed as a much narrower question, just as "plain error" is not remotely coterminous with "error".

Many other gun regulations are like this. Most licensing requirements (at least, those which aren't thinly veiled pretexts for banning guns altogether), magazine capacity limits, background checks, registration requirements -- none of these plainly are covered by the Second Amendment in the way that the laws at issue in Bruen and its predecessors are, and so none of them need to be justified by resort to Bruen's test.

I also don't think that the "plain text" language can be dismissed as a cavalier rhetorical flourish.  It is included at the top of Part II of Justice Thomas' majority opinion, where he announces the new text, the bottom of Part II, where he "reiterates" the test, and the top of Part III, where he applies the test. It also is notable that the portion of the opinion where Justice Thomas assesses whether the "the plain text of the Second Amendment protects Koch’s and Nash’s proposed course of conduct" (Part III.A) is quite brief, because he has "little difficulty concluding that it does [protect]" -- suggesting that the law at issue here is plainly under the Second Amendment's ambit in a way that other laws might not be. The vast majority of the Court's analysis applying the new test is not concentrating on whether the conduct is covered by the "plain text" (which it views as easy, in keeping with "plain" being "plain"), but on whether any of the historical examples of permissible gun regulations nonetheless warrant New York's statute. Again, this indicates that we are in the realm of a "plain" imposition on the Second Amendment; which in turn suggests that "plain text" is not superfluous verbiage.

I might even argue that treating "plain text" as a threshold requirement is necessary for Bruen's internal logic to make any sense at all. Bruen styles itself as a originalist/textualist opinion, but the "historical practices" test is embarrassingly atextual along two dimensions: (a) one could stare at the text of the Second Amendment indefinitely and never derive the test from it, and (b) looking at "historical understandings" is not the same thing as seeking to uncover the semantic meaning of the Second Amendment's words as they would have been understood at the time of ratification (which is what contemporary originalist textualism claims is its project). But if we view Bruen as doing what it says and only applying in cases where a gun regulation plainly is covered by the Second Amendment -- laws which seem to entirely prevent certain persons or places from being occupied by guns that practically can provide personal self-defense -- then the "historical practices" test makes a bit more sense from an originalist perspective. A pure textualist might struggle to justify even, say, the ex-felon ban on possessing weapons -- are they not "plainly" being deprived of the ability to keep and bear arms? Yes they are! But knowing that the framers did endorse at least some laws that incontestably limit certain persons' ability to keep and bear arms suggests limits on the original understanding of what the Second Amendment says that might otherwise be hard to square with the Amendment's "plain text". The utility of Bruen's test is considerably less apparent, however, in circumstances where there is not a "plain" imposition on the right to bear arms. In such cases, "historical practices" risks becoming a license for courts to cut bloody swaths through any law which happens to touch on the subject of guns whenever a suitably analogous regulation cannot be found (even when the reason it cannot be found is because the problem is novel and could not have had an obvious early-American analogue).

So I think there is good reason to view "plain text" as a threshold requirement before a court applies Bruen, and that many regulations which are categorized as "gun control" are not covered because they do not "plainly" impinge on the right to keep and bear arms. Indeed, if we take this seriously -- which, I again hasten to clarify, we almost certainly should not, because there is no way Bruen will serve as a license for gun regulation in any circumstance where conservatives don't want it -- Bruen could mark out a very interesting compromise: laws which "plainly" impinge on the Second Amendment (which is to say, seek to effectuate a total bar on possession of guns by certain people or in certain places) are subjected to the "historical tradition" inquiry. Laws which regulate guns but do not plainly fall under the Second Amendment's ambit (insofar as they leave space for significant practical ability to keep and bear arms) get rational basis review. That might actually be a compromise I could live with. 

But of course, this Court has not remotely signaled interest in compromise. Its maxim is that the strong take what they may, and the weak suffer what they must, and right now they are reveling in right-wing strength. So as much as I enjoyed this frolic into a fantasy where judges are constrained by law, in the real world I suspect the rule in Bruen will be whatever the far-right wants it to be.

Things People Blame the Jews For, Volume LX: Islam

Haven't done one of these in awhile, but then, sometimes the universe doesn't give you an option. Behold: 

I'm going to call it: "Islam is a Jewish conspiracy" might well be my favorite antisemitic conspiracy.

Top that if you dare.

Voting Isn't Enough. You Also Have To Vote Enthusiastically

For the past several years, a battle has raged within the progressive commentariat about the importance of voting. In 2016, quite a few influential left-of-center figures were very public about how they would sit the election out, or vote third party, because they just could not bring themselves to support Hillary Clinton. This approach is sometimes dubbed the "consumerist" theory of voting, where politicians are products you either like or don't like, and if you're not happy with the product, you don't buy it.

This approach seemingly was discredited by the 2016 election results (spoiler: it was also discredited before the 2016 election results), though a surprising number of people were insistent for years thereafter that they were entirely right and correct to sit out 2016. Voting is for suckers, voting doesn't change anything, voting is a distraction from something something grand proletariat revolution something. Incredibly, we're still seeing a permutation of this argument now, as people respond to Republicans reaping the fruit of their electoral success by literally arguing "I tried voting in 2020 and it didn't work". I barely know how to even respond to that level of narcissistic self-indulgence. Politics is hard. It's slow, and arduous, and often a game of inches, but it definitely won't be won by people who think that the failure to travel lightyears in a day means they're entitled to sit out in protest.

That said, over the past few days I have noticed a bit of a shift amongst people I'd broadly define as occupying these sectors of progressive politics. They no longer say they won't vote in 2022. Instead, they issue long screeds contemptuous of voting and decrying voting and insisting that voting won't bring any useful change or benefits whatsoever. Then, somewhere in the middle of the diatribe, they will, with all the enthusiasm of a petulant child, agree that they will vote in 2022, but they won't like it and you can't ask them to like it, but if it will finally make you shut up okay they'll agree to vote.

Progress, of a sort. But not good enough.

The consumerist theory of voting treats voting as a matter of individual expression. This new permutation still fits that mold, only now voting only matters as a sort of civic duty checkbox one individually marks off (albeit reluctantly).

But the reason voting matters isn't to express your deepest emotions nor is it to validate one as  having satisfied an individual civic duty. The reason everyone is saying voting matters is because we need to win these elections in order to secure the changes we want, or at the very least to prevent things from deteriorating even worse. Democrats retaining control of government in 2022 might not be sufficient to arrest the damage the Supreme Court is doing to our public life, but it sure as hell is necessary. So your obligation isn't just to vote for Democrats, it's to take the steps necessary so that Democrats win. And one such step is projecting a sense of excitement about the prospect of Democrats winning.

 ("Excitement", to be clear, is being used here as a somewhat imprecise catch-all term encompassing any number of affective dispositions towards Democrats winning that view that outcome as a substantial positive and the opposite outcome as a substantial negative. So I would count "excited at Democrats winning" and "terrified at Republicans winning" as both falling into the relevant category; either way, someone who affectively holds those views should be enthusiastic in pulling the lever for Democrats come November. Perhaps "motivated" is better than "excitement"; insofar as it captures the sense that you care, deeply, about the outcome of the election. In any event, I doubt it matters too much what exact form that affective disposition takes, so long as it is in this broad category of substantial positive, as opposed to the sulky "I'll do it but it won't matter").

It is a truism to say that one vote rarely makes a difference. Voting matters as a collective endeavor where we unite to exercise power and self-determination together. Our decision to vote, and whether we do so enthusiastically or view it as a grim chore, influences those around us, and so has a multiplier effect that extends will beyond our one vote. 

People are more likely to vote if their friends and neighbors vote, and they're even more likely to vote if their friends and neighbors are excited about voting. Anybody who is talking about voting on Twitter almost by definition is on the bleeding edge of heightened political engagement, which in turn means they are well-positioned to influence multiple others in their circle who are more likely to fall towards the fat part of the bell curve of political apathy and are highly responsive to cues from their social environs. Your vote matters, but your affective disposition towards voting as a means of effectuating change also matters and arguably matters even more. Every voter has one vote, but the publicly excited voter carries in their wake the votes of a dozen friends and acquaintances. The publicly downcast and reluctant voter sheds a similar number of votes.

"I'm sorry, but I can't fake enthusiasm." Yes, you can! You shouldn't need to, in many ways I'm blown away that anyone needs to "fake" feeling positively disposed to Republicans not gaining another hammerlock on power, but yes, you absolutely can fake enthusiasm. Indeed, I'd argue that in the present moment it's self-indulgent not to. You're willing to call for a general strike but you're not willing exaggerate a smile to win an election? Are you kidding me? Sulking is not a strategy.

Voting is a tactic, and our obligation now is to take the steps most likely to make that tactic successful. One of those steps is being publicly enthusiastic about voting, so that other people who are less politically engaged than you also find the prospect of voting to be something worth doing. My basic rule of thumb here is that if you're politically engaged enough to be publicly complaining about how unfair it is that people are asking you to vote again, after you already tried that two years ago, then you're politically influential enough to carry the responsibility of publicly orienting to voting in such a way so as to maximize its likelihood of success.

This doesn't mean one doesn't pressure Democrats to do more or do better when they have power. I have hardly been blown away by the immediate Democratic response to the fall of Roe, though in part I think that's because Dobbs was a huge defeat and huge defeats are rarely pretty. There is no elegant way to lose in crushing fashion (I view the chaos after the Afghanistan withdrawal in much the same way). Nonetheless, I do not at all dispute there are plenty of criticisms one can make at the Democratic leadership in their immediate response to Dobbs. But it is entirely possible to level these critiques while also maintaining an affective disposition of strong positivity towards Democrats winning elections. Every bit of frustration I have towards Democratic decisions while in office - and there are plenty -- has not dampened in the slightest my strong and unwavering view that Democrats winning elections is far, far better than Democrats losing elections, and that we should view any moment where Democrats win and Republicans lose with absolute elation.

And guess what? Enthusiastically voting doesn't stop you from enthusiastically going to protests, or enthusiastically supporting a mutual aid organization, or enthusiastically engaging in a union drive, or enthusiastically taking any number of other steps which might also be part of the collective endeavor of building power to effectuate positive change. It's not either/or, nobody is arguing that it is either/or, and using that false dichotomy to justify your sulky attitude towards participating in electoral politics isn't fooling anyone. So buck up, and get excited about winning in 2022. Fake it if you have to, or do what I do and find genuine enthusiasm for the prospect of fending off America's slide into fascism. Either way, you do what it takes to win.

On the Power of Sharing Stories

The personal should not have to be political.

But it is.

There are innumerable reasons why someone might terminate a pregnancy. Virtually none of them entail events one wishes to broadcast to the world. That's not a matter of shame. Someone who finds out that their very badly wanted pregnancy is non-viable, and that the safest way to forward is through an abortion proceeding, might not feel especially inclined to share a play-by-play on Facebook. Very often, abortions occur because something didn't go right -- the pregnancy was unplanned, or unwanted, or it was wanted but non-viable, or any number of other permutations -- and people are, or should be, allowed to grieve in private.

And yet. I have been inspired by the number of people in my circles who have shared their stories of having an abortion, or seriously considering having one, or having the immediately live prospect of needing one. As much as the Supreme Court just rolled back the constitutional clock, it cannot do so entirely, because these stories are out there and are publicly shared. The world is not as it was in 1973. Women who quite directly relied on Roe's promise for their own health know what would have been had Roe not been present for them. Women who tomorrow will not be able to access that care will know, in a very public way, what could have been.

Dobbs will bring about terrible things, but those terrible things (what an awful consolation prize this is) will be public in a way they would not have been in 1973. We have language to speak of them, and we know we could live in a world free of those terribles because we had lived in it. What had been countless discrete experiences in isolation, out of the public eye, out of the public discourse, now is a shared reality. Being able to name it, being able to organize around it, being able to know that one isn't alone and that it doesn't have to be this way is an irreplaceable resource. The stories matter, and the willingness to share them matters. It will make a difference. Every story, account, and tale, makes those who suffer these terribles feel a little less alone. Again, what an awful consolation prize. But it is the seed of how we fight back.

It shouldn't have to be like this. Each time I read one of these stories, typically someone sharing a wrenching, emotional, miserable moment at the most intimate core of their personal lives, my heart breaks twice -- first that it happened, second that the narrator now feels obligated to share something so personal with the world. They shouldn't have to. It is, in itself, a massive sacrifice they are making for us. But they are sacrifices that make a difference, and I am grateful for every story.

What Politics Has Done, Politics Can Undo

"The majority has overruled Roe and Casey for one and only one reason: because it has always despised them, and now it has the votes to discard them."

That's from the joint dissent in Dobbs. It's true. Nothing about the Constitution changed from the start of this week to the end of this week, or indeed (in relevant part) from 1973 to today. What changed was politics. The conservative right spent fifty years in a slow, grinding war of political attrition -- gaining power, entrenching itself in key institutions, pushing forward -- and Dobbs was the payoff. That's a political accomplishment, not a legal one.

It is difficult to tell my students that no legal argument that they will learn in my Con Law class will make the slightest difference in terms of potentially seeing Dobbs overturned, just as no legal argument actually played any role in seeing Roe overturned. Nonetheless, it is true. But that just means the relevant arena for fighting is different. What politics did, politics can undo.

There is a bruising fight coming. There is no weird trick by which Democrats can win it in a one-punch knockout tomorrow. It will likely take years. Overturning Roe took Republicans nearly fifty years. God willing, reviving Roe will not take that long. Indeed, my fondest dream is that the reversals happen while at least some of the current GOP justices are on the Court. I want them to be there as their work crumbles to dust, I want them to mewl helplessly as their precedents (and I don't just mean Dobbs here) are brushed aside as aberrant malignancies on the constitutional body politic. But it will take a sustained, disciplined political campaign, at all levels of government, that matches or even exceeds what anti-abortion advocates threw at the issue for the past fifty years.

And while no, "just vote" is not a sufficient part of that strategy, yes, voting is a necessary and indeed critical and central part of that strategy, and anybody is who is indulging in mocking voting or undermining voting or depressing voting is functionally abetting the anti-abortion cause no matter what else they claim to be doing on the issue. All the other components of fighting for abortions rights in 2022 -- from protests to strikes to mutual aid programs to deleting your period tracking apps -- are at most rear-guard actions without more Democrats in power. It doesn't matter who the Democrat is. Yes, even the supposed "pro-life" Democrats. Why? Because when Democrats, as a party, are in a stronger position, the gravitational pull of politics moves all Democrats in a pro-choice direction. It's no accident that Joe Manchin, who long has presented himself as "pro-life", is now talking about codifying Roe. It's also no accident that Susan Collins, who long has identified as "pro-choice", was a key player in ensuring that the anti-Roe majority was present on the Supreme Court. Republican power alters the center of gravity of politics in an anti-abortion direction even if individual Republicans claim to be pro-choice; Democratic power does the oppose even if individual Democrats claim to be pro-life. It's obviously better to have pro-choice Dems than pro-life Dems, but it's better to have any Dems than any Republicans in office. If nothing else, Susan Collins is testament to the strategy that if you keep control of the dice long enough, eventually the party apparatus will win out.

I won't claim to be especially impressed with the manner in which the Democratic leadership has responded to Roe's demise -- but then, crushing defeats are rarely pretty for the defeated party. Nonetheless, unless more Democrats are elected, there is no hope of reviving Roe. It's that simple. There's no substitute for having power.

The Eighth Circuit's Boycott Ruling Does a Lot More and a Lot Less Than You Think

Yesterday, the Eighth Circuit sitting en banc upheld Arkansas' law prohibiting government contractors from boycotting Israel during the tenure of their contract. The ruling makes for interesting reading, more because of what isn't said than what it is. At one level, the ruling seems to have dramatic implications extending far beyond the case of Israel. And on another level, the ruling (including the solo dissent from Judge Kelly) barely even discusses what I would consider to be many of the critical issues in play.

First thing's first. As many of you know, I clerked on the Eighth Circuit, and it is now as it was then a very conservative court. JTA's bland statement that "The Eighth Circuit is considered to have a conservative makeup" does not do it justice. There is a grand total of one Democratic appointee serving on the court, the inestimable Judge Jane Kelly. While it lacks the outright nihilist streak that has afflicted the Fifth Circuit of late, it is fair to characterize the Eighth Circuit as among the most right-wing courts in the country.

In any event. The Arkansas law requires that state contractors certify they will not "boycott Israel" for the duration of the contract. "Boycott Israel", in turn, is defined to encompass doing any of the following three things “in a discriminatory manner”:

(1) “engaging in refusals to deal”; 

(2) “terminating business activities”; or 

(3) taking “other actions that are intended to limit commercial relations with Israel, or persons or entities doing business in Israel or in Israeli-controlled territories.”

The court essentially divides its analysis in two. One question is whether things like "refusals to deal" or "terminating business activities" should be seen as potentially implicating First Amendment values (that is, are they expressive). The second question is whether the third clause, covering nebulous "other actions", includes activities that are unquestionably First Amendment protected (e.g., writing an editorial supporting BDS -- which presumably would be "intended to limit commercial relations with Israel"), or whether that clause should be read to only cover commercial conduct akin to that covered in the first and second clause.

The first question basically gets to the issue of whether "boycotts" are First Amendment protected. Citing Rumsfeld v. FAIR, the majority concludes they are not, because boycotts are non-expressive conduct that only garners an expressive meaning if accompanied by explanatory speech. The venerable NAACP v. Claiborne Hardware case does not control, the court says, because Claiborne only extends to the speech that accompanies the boycott (e.g., the signs and pickets around a store), not the "action" of the boycott itself.

This is a big ruling. The holding that the "action" of boycotting falls categorically outside First Amendment protections is a major decision, and one that deserves every bit of public scrutiny and inquiry that this decision is getting. In that respect, the Eighth Circuit decision is getting the proper amount of attention and concern.

This makes it all the more strange the fact that the court itself doesn't act as if its conclusion was a big deal. Its holding was delivered in conclusory fashion at scarcely three pages worth of analysis. While the Eighth Circuit does tend to prefer relatively terse opinions over the long, rambling, and often self-indulgent treatises that other circuit courts typically issue, there's little indication that it viewed the "are boycotts speech" question as a substantial issue. 

Likewise, most of the dissenting opinion also does not really question the majority's assumption that boycotts are not speech. Indeed, far more of the debate between the majority and dissent focuses on the second question -- whether or not the Arkansas law, in its third provision, captures activity that is unquestionably First Amendment protected. This is a matter of statutory interpretation -- what is the best way to read the statute under Arkansas law? -- and while that may be an interesting question to some, it is certainly not what is driving the interest over this case. Yet nearly all of Judge Kelly's solo dissent focuses on this second question, while arguably taking for granted the seemingly big sweep the court makes regarding the first question. The result is that the "boycotts are speech" position -- fervently held and believed in by substantial sectors of the American people -- neither gets a substantial challenge (from the majority) nor a substantial defense (from the dissent). This is a very, very odd omission.

Judge Kelly does not spend much, if any time, arguing that the "action" of boycotting is First Amendment protected. Rather, her position is that the law goes beyond regulating non-expressive economic activity and captures purely expressive speech (again, the proverbial pro-BDS editorial or flyer). On my quick read, both majority and dissent have plausible arguments for what the best read of the Arkansas statute is -- but again, that is not the issue anyone actually cares about. A ruling that says "Arkansas' law is unconstitutional because it does not just target the act of boycotting but also pure expression supporting a boycott" should be equally upsetting to critics as "Arkansas' law is constitutional because it only targets the act of boycotting and does not cover pure expression supporting a boycott." Yet that appears to be the locus of the dispute between majority and dissent.

Judge Kelly at most only alludes to the questions that many of us view as central to a case like this. For example, the very end of her dissent briefly suggests that the law does not just cover what the contractor does in the course of fulfilling his or her contract but also "prohibits the contractor from engaging in boycott activity outside the scope of the contractual relationship 'on its own time and dime.'" This is something I've long felt was important in distinguishing valid versus invalid state regulations in this field. Is Judge Kelly correct that Arkansas' law does limit the contractor's "own time" behavior? Does that make a difference? Neither majority nor dissent really say.

Likewise, the seemingly key question of whether boycotts are at all "expressive" is given scant attention. The majority cites FAIR to say they are not, because the conduct would not be understood as "expressive" absent additional speech explaining the intended meaning. In FAIR, the question was whether a law school could refuse to allow military recruiters on campus as a means of protesting Don't Ask Don't Tell; the Court said that was not expressive because an observer wouldn't know that the recruiters' non-presence was meant to be a message sent from the law school absent the law school saying "the recruiters are not here because we are sending the message that ...."

There is some purchase to applying FAIR to the case of boycotts. Imagine two people walk into a store. They both see a Hewlett-Packard computer on sale. They both then walk out without buying it. Have they "boycotted" HP? An observer would have no way of knowing absent the customer explaining their behavior as a boycott. After all, there are a myriad of other reasons why one wouldn't buy an HP computer; the average observer would not have any basis for assuming that the non-purchase was for boycott related reasons.

However, the logic of FAIR also cuts in the other direction. In FAIR, the Solomon Amendment required that law schools provide access to military recruiters. It didn't matter why a law school didn't want to provide such access (whether for "expressive" or "non-expressive" reasons); the schools had to provide the access regardless. In this way, the law didn't single out "expressive" objections for singular opprobrium; it treated the expressive and non-expressive objectors exactly the same (i.e., by bulldozing the objection).

Anti-boycott laws, though, are different. The Arkansas law here certainly does not say "every government contractor must buy Israeli goods". There are myriad reasons why a contractor might not purchase from an Israeli vendor, and for the most part they remain free to do so. The only time they are forbidden from doing so is when their action is a boycott. But that means that, unlike FAIR, the hitherto hidden expressive character of their conduct is what distinguishes licit and illicit behavior. Judge Kelly does allude to this in a footnote, pointing out that the ordinary meaning of  "boycott" (undefined in the Arkansas statute) "includes an inherent element of expression" -- it is a refusal to buy that is done as a means of protest or disapproval. Hence, the contractor's action is only illegal if it is expressing a particular (disfavored) message -- something that should spark obvious First Amendment concerns.

We should recognize we're treading on very precarious terrain here. While not defining "boycott" directly, the Arkansas statute frames what is prohibited as "discrimination" against Israel. The risk that First Amendment protections for "boycotts" could generate First Amendment protections for "discrimination" is by no means unfounded, particularly in the era of Masterpiece Cakeshop and First Amendment Lochner-ism. Applying the above analysis to anti-discrimination claims, one can imagine a restaurateur refusing to seat a Black patron, then defending himself by saying "there are all sorts of reasons why I might not seat a patron; yet what makes my conduct illegal is the message I intend to convey -- that I object to Black people." Courts have not (yet) accepted that logic, and there are some bases for making distinctions here. But ask yourself how much you want to prop that door open for Alito and company by going all in on "refusal to engage in business transactions with disfavored groups is your First Amendment right!"

Finally, one other nettlesome issue about the Arkansas law that comes to my mind is the potential viewpoint discrimination problem. Different states have written their anti-BDS laws in different ways, and I've noted before my strong preference for those which do not single out Israel for special treatment but instead craft a broader rule forbidding, e.g., discrimination on basis of nationality or national origin. Arkansas' law is not like that -- it provides enhanced protections for Israel and only Israel. Contractors are apparently free to boycott Palestine, or France, or Germany, or Russia or Ukraine or China or India or Zambia without consequence.

This to me generates a serious viewpoint discrimination problem. As Justice Scalia pointed out in R.A.V. v. City of St. Paul, even where a state has legitimate reasons for restricting certain types of speech -- and we can stipulate for sake of argument that nationality-based discrimination, even where styled as a "boycott", is one such case -- it "has no such authority to license one side of a debate to fight freestyle, while requiring the other to follow Marquis of Queensberry rules." If Arkansas thinks this sort of behavior has to be restricted, it has to restrict on both sides of the ledger -- it cannot single out one side of the controversy for special restriction because that side represents the disfavored viewpoint. After all, we might not be aghast if a state required its contractors to certify that they do not discriminate on the basis of race; I think we'd be far more concerned if a state only required them to certify they do not discriminate against White people, while being a-okay with contractors who discriminate against other racial groups.

In any event, the Eighth Circuit decision devotes cursory, if any, attention, to all of these issues. That applies as much to Judge Kelly's dissent as Judge Kobes' majority opinion. Normally, I'm not upset by the Eighth Circuit's preference for shorter and more compact opinions, but here I think they made a very big move without fully thinking it through or potentially even realizing it. This case very well could end up before the Supreme Court, and with the court that we have who knows what hash will be made of both First Amendment and anti-discrimination legal guarantees?

The Ministerial Exception and Neutral Rules after Carson v. Makin

States like to give money to things. They like to fund schools, or recycling campaigns, or building repairs, or sports programs. And sometimes, religious entities are among organizations who conduct the program the state is funding -- they run the school, or the recycling campaign, or the the building, or the sports program. In such scenario, there are constitutionally-speaking three possibilities:

1. The state is prohibited from giving the money to the religious entity. Funding the religious organization is an Establishment Clause violation.
2. The state is required to give the money to the religious entity. Refusing to fund the religious organization, when other comparable organizations are funded, is a Free Exercise violation.
3. The state can choose whether to give the money to the religious entity. There is "play in the joints" between the Free Exercise and Establishment Clause issues, and states can choose how they want to resolve that tension.

Today, in Carson v. Makin, the Supreme Court took a big step towards Door #2. The Court struck down a Maine program which (for certain rural areas lacking public schools) funded private schools, but only if those schools are non-sectarian. If Maine is offering parents funds to send their kids to private schools generally, it cannot withhold those funds if the parents elect to send their children to a religious academy. Religious schools must be eligible for generally-available funding on the same basis as any other "comparable" private school.

In making this ruling, the Court distinguished (and significantly narrowed) an older case, Locke v. Davey, where the Court upheld a program which excluded ministerial training from an otherwise generally available scholarship program. The Carson Court said Locke was limited only to circumstances where the school was specifically training ministers; not "religious education" more broadly.

This got me thinking, however, about what options are still available to a state like Maine which is perhaps leery about sending its tax dollars to directly support religious education. Carson does not directly say "states must fund religious education" after all. It merely says that states must allow religious schools to obtain funding when they would otherwise be eligible based on the general criteria the state uses for assigning funds.

So imagine the following rule: "No school shall be funded unless each of its employees is fully subject to anti-discrimination rules." The state, it is fair to say, has a strong interest in ensuring that the subjects of its funding abide by and are protected by anti-discrimination rules. Still, anti-discrimination law contains certain exemptions, one of which is known as the "ministerial exemption" -- ministers are not subject to anti-discrimination protections. In Hosanna-Tabor Evangelical Lutheran Church and School v. EEOC, the Court expanded who counts as a minister beyond the proverbial priest or Rabbi to include many teachers at religious institutions -- these teachers now cannot sue if they are the victims of discriminatory conduct. Religious schools are relatively likely to have such "ministers" on the payroll, so they would run afoul of the neutral rule, and would not be eligible for state funding.

Whether this gambit will work depends a lot on how it is phrased and the degree to which courts are willing to accept it as a neutral rule (which, in turn, may relate to whether there are other schools whose eligibility for state funds would be limited by the rule for reasons having nothing to do with religion). But -- on about an hour's worth of thought -- it seems like a plausible argument.