George Takei was wrong about Clarence Thomas

For the record, George Takei’s comments about Clarence Thomas were racist, and, like most people on the left who have been complaining about Thomas’ “dignity” discussion in his Obergefell dissent, missed the point Thomas was making.  Clarence Thomas is a black man who grew up speaking the Gullah dialect in the Jim Crow south. He talks about watching his grandfather struggling to memorize long portions of the King James Bible so he could pass the literacy tests to vote. When Thomas writes about how dignity isn’t something that the government can give or take away, he’s speaking as someone who knows as well as anybody that if black folk in America were relying on the government as the source of dignity they’d be still waiting.  Now, where I disagree with Thomas is that I think that humans have inherent dignity, but that the government either does or doesn’t treat people in a way that respects that dignity that we all have. Thomas isn’t wrong though, just incomplete. I’m no great fan of Clarence Thomas’ jurisprudence. His version of originalism, with its stacks of old dictionaries, refusal to consider anything constitutional if it wouldn’t have been thought of at the time the document was drafted, and steadfast insistence that if you don’t like it you should amend the constitution, is too unwieldy for the modern era. There was no way Thomas was going to vote for marriage equality no matter his personal views about LGBT people. The man is nothing if not consistent in his application of his principles of constitutional interpretation, and this is an issue where he was always going to say that the right approach was to amend the constitution. I think he’s wrong, but that’s a matter for intellectual debate, not name calling.   To call him a clown[…]

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Michael Farris and RFRA followup

On Tuesday I gave you all the rundown about how federal RFRA drafter Michael Farris admitted that he intended the law to legalize religiously motivated discrimination against LGBT people. Farris went on Tuesday’s episode of the Hannity Show and once again stated that he believes that people have the right to discriminate. I was waiting to see if Fox was going to post the video of the segment to their website, but since it looks like they aren’t going to, here’s my shaky video recorded off of the TV. Sorry that I don’t have any fancy dancy video capture equipment to give you a better video, blame Verizon for putting a bunch of DRM on their DVRs. The question about discrimination starts around 2:20 in the video after the jump.

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Original RFRA Drafter Admits Discriminatory Intent

Like a lot of other people, I’ve been following the controversy surrounding Indiana’s SB 101, their state level RFRA bill that’s designed to allow businesses to discriminate against LGBT people on religious grounds. Indiana’s RFRA has been compared frequently to the federal RFRA, both by supporters of Indiana’s law who claim that it’s no different than what President Clinton signed into law in 1993, and opponents who point out that it’s much broader than the federal RFRA. What most people don’t realize about RFRA, however, is that while it was a popular piece of legislation that passed with bipartisan support, the religious right had their fingerprints on it from the beginning and always intended it to be used for much broader purposes than most of the bill’s supporters realized. The coalition that drafted the original RFRA was either chaired or co-chaired (alternate accounts on HSLDA’s website say both) by HSLDA founder and then-president Michael Farris. Farris was one of the drafters of the bill, and takes credit for organizing the broad coalition that supported its passage.

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The Curious Case of the Spell Family, or, The Entirely Invented (Non)Threat to Homeschooling in Florida

Proving again that one should be careful to make promises one cannot keep, I feel that I must break my promise to myself that I would stop writing about homeschooling for a while. In the last few days a story has been making the rounds about a supposed threat to homeschooling in Florida. The potential for hysteria and misinformation is huge, so as a Florida homeschool graduate whose parents homeschooled for a total of 18 years in Florida, I want to help set the record straight. On September 27th, a woman named Kathy Stock posted an entry on her blog entitled, “A War on Homeschooling.” In it, she claimed that Steve and Kristina Spell of Tallahassee, Florida, were arrested for homeschooling on February 3, 2011. The version of the story told in her post is that they were charged with violating the compulsory attendance laws despite being enrolled in an umbrella school. She claims that the Spells followed the letter of the law and were still prosecuted. Now, as someone who was enrolled in an umbrella school in Florida for my entire K-12 homeschooling education, when I read the post things didn’t add up for me. For much of my childhood, my parents ran the umbrella school that we were part of, founded another umbrella school, and for a number of years after I graduated, my dad was the administrator of a third umbrella school. They were also involved in the founding of the Florida Coalition of Christian Private School Administrators (FCCPSA, the “A” now standing for “Accreditation”), a group that originally was for umbrella school administrators but has since branched out to work with other private schools as well. In other words, I have more than a passing knowledge of how these things work, and the whole story feels[…]

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HSLDA, the Parental Rights Amendment, and Enabling Child Abusers

I’m sick, I’m really sick. When I wrote back in May about what I suspected was a legal strategy by HSLDA to make homeschooling a fundamental right, I said that I hoped I was wrong. I hoped that HSLDA’s end game wasn’t giving parents the right to do almost anything to their children short of killing them. The following was posted on the ParentalRights.org Facebook page on Monday:  Read that again.  The Parental Rights Amendment establishes that courts must give the highest level of protection – strict scrutiny review – anytime a government action would infringe on parents’ rights. Nearly every law or government action held to this level of review in the past has been declared unconstitutional. What this means is that under the Parental Rights Amendment that HSLDA is campaigning for, remember, an amendment that provides no exceptions to strict scrutiny other than for parental action that would end the life of the child, any attempts to legislate what parents may do to their children is subject to a level of scrutiny where, “[n]early every law or government action held to this level of review in the past has been declared unconstitutional.”   Remember, this is an amendment that specifically had to spell out that murdering your child did not fall under strict scrutiny. That sure looks like they know that without exempting actions causing the death of a child from strict scrutiny, even the decision to murder one’s own child would be a protected parental right subject to the virtually insurmountable strict scrutiny requirements. The fact that the amendment says nothing about beating a child within an inch of his or her life being exempted from strict scrutiny means that even horrific levels of child abuse are subjected to a level of scrutiny where, “[n]early every law or[…]

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Of fundamental rights, HSLDA, and homeschooling

I wasn’t planning on writing more about HSLDA but I was talking to my mom today about HSLDA’s refusal to do anything about child abuse and how it made absolutely zero sense to defend abusers. As I moved on to talking about how I feel that they’re using the Romeike family as pawns in their effort to establish homeschooling as a fundamental right, something dawned on me. Notice that phrase “fundamental right”? It’s a phrase they’ve been throwing around an awful lot when talking about the Romeike case. In law, “fundamental right” has a very specific meaning. It refers to those rights that are basic, foundational rights–things like life, liberty, freedom of association, freedom of movement, freedom of religion, the right to marry, and the right to due process. Under US constitutional law, fundamental rights automatically trigger strict scrutiny. That is, for any law restricting a fundamental right to pass constitutional muster, it must be narrowly tailored to achieve a compelling government interest and must be the least restrictive means of achieving that end. Strict scrutiny is a standard that very few laws can meet. I’ve lost track of the number of times I’ve heard professors describe strict scrutiny as, “strict in theory, fatal in fact.” If you can get the courts to find something to be a fundamental right, you’re pretty much home free. Very few regulations of fundamental rights can survive the strict scrutiny analysis. So, how does this apply to homeschooling? Right now, homeschooling is protected under parental rights to direct the education of their children. Religious freedom comes into play to some extent (especially if you’re Amish–the courts don’t like to mess with the Amish), but with parental rights it’s still a balancing of the right of the parent with the right of the child and the interest of the[…]

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Dispatches from the Culture Wars: DOMA

Sixteen and a half years ago President Clinton signed the Defense of Marriage Act, enshrining inequality into federal law. As Clinton tells it, he had to sign it because it was a veto-proof majority and any veto would have been overruled anyway, though I rather suspect that it had more to do with the fact that he was two months away from the general election and thought it would ensure his reelection. The truth is probably something that historians will have to sort out farther down the road. In any case, sixteen and a half years ago DOMA went into effect and the federal government was barred from recognizing the marriages of same-sex couples and from granting them any of the federal benefits granted to male-female married couples. Four days from now, the United States Supreme Court will hear oral arguments on the constitutionality of DOMA, in the case United States v. Windsor. I was 16 when DOMA was signed into law, and if you had told me back when I was 16 that half a lifetime later I would find myself contributing to an amicus brief in the Supreme Court challenge of DOMA I would not have believed you. Not because back then I was still a member in good standing of the religious right, but because in my idealistic naivete I could not imagine that a law that seemed like such a blatant violation of equal protection would be allowed to stand for any measurable length of time. The idea that sixteen years later we’re all waiting on pins and needles, doing Supreme Court math in an attempt to guess whether or not DOMA will be overturned was something I didn’t even consider a possibility back then. And yet here we are, and most of my law school classmates are too[…]

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