You don’t need to be “deaf, dumb and blind” to be fair

Read this from Vox.com, this is very good.  It’s helped me think more clearly in considering whether there’s been a rush to judgment against men recently accused of sexual assault and harassment.

First, I’ll go out on a limb and say, I’m against sexual harassment and sexual assault.  I’m against men with professional or financial power using that power against women.  I believe the women who are making the accusations, especially when the men choose not to put up much of a defense and just disappear (anyone hear anything from Charlie Rose lately?); I do not reject the accusations just because they are being made by women, or because I believe that the men are somehow being treated unfairly.

I have wondered if there are cases in which the past has been turned on its head.  Used to be, a woman’s accusation of misconduct against her boss, for example, was dismissed out of hand as not being credible, and the justice system has long made it difficult for a woman to prosecute a case against her rapist…men in charge protecting other men lest they be the next to stand accused.  But since The New York Times and The New Yorker broke stories about movie producer Harvey Weinstein last year, the tide has turned and we’re told we must believe the woman.  #MeToo proponents and others argue that women who have been harassed or assaulted do not lie about it.  OK, I’m with you.  But are there women who were not harassed or assaulted who are lying, who are making false accusations?  In our newfound effort to correct past wrongs, are we being appropriately concerned about that possibility?

Dozens of power brokers have been the subject of allegations of abuse and sexual misconduct since Bill O’Reilly was ousted from Fox News in April 2017. And as more and more figures face consequences — financial, political, professional, and legal — for their bad behavior, one term that comes up over and over again is “due process,” referring to the legal concept enshrined in the Constitution.

Even President Donald Trump is in on it: In a tweet on Saturday, apparently prompted by the resignations of two of his aides, Rob Porter and David Sorensen following allegations of domestic abuse, the president lamented the number of “lives being shattered” by a “mere allegation” of misconduct. “Is there no such thing any longer as Due Process?” he asked, almost plaintively. But what does due process really mean today, now that people have begun to invoke it as a cultural concept?

I asked seven legal scholars and experts what due process is, with the understanding that in legal circles the question is essentially an existential one. Due process in court is one thing — in the court of public opinion, it is a much more fluid notion, entangling questions of what is fair, what is reasonable to believe, and what rings emotionally true.

The first of the seven, former federal judge Shira Scheindlin, makes a case that I find very clear and persuasive, clarifying that “due process” in a court of law is not the same as that which a reasonable man or woman should give to public accusations such as these:

The Fifth Amendment to the United States Constitution, provides, inter alia, that “No person shall be deprived of life, liberty or property without due process of law.” This legal standard means what is says. Certainly Rob Porter, and others who have been accused of sexual abuse or harassment, are not being deprived of their life or their liberty as a result of the allegations made against them. Property is a closer question in that some have lost their jobs — and the income resulting from that employment — as a result of accusations rather than proof in a court of law. Nonetheless, in most instances the question is not one of civil or criminal liability. Rather, the question is whether given the quality of the allegations, the person against whom the allegations have been made, should remain in the position of trust, confidence, and responsibility which he (and it usually is he) currently holds.

(snip)

But when a business, a government entity, or a voter must decide whether someone is fit for his position, the decision process is of necessity much less formal, quicker, and truncated. A judgment call must be made and it often must be made quickly. The due process of a court action is often a very complicated and lengthy affair, involving pre-trial discovery, witnesses, and a judicial proceeding. But given the stakes of loss of life or liberty that makes sense. In context, the accusations that cause a person to lose his job must be evaluated by the employer who must make a judgment call based on the strength of those allegations. There is nothing wrong with that. If the person removed from his position feels aggrieved he is welcome to bring a case in court in which he would have the burden of showing that he was wrongfully terminated. In that proceeding I have no doubt that the underlying accusations would be fully aired. That may be why so few — if any of the accused — have pursed this course.

Law professor and author Michael Meltsner of Northeastern University agrees that there is a distinction between due process as a legal concept as compared to a societal norm, and warns that raising that flag in these cases “can be an ideological screen behind which abusers or those defending them try to justify, deflect or delay condemnation.”  (He didn’t say it here but it made me think of President Trump, the credibly-accused, and self-confessed, harasser and assaulter of girls and women.)

What often gets lost in the wake of allegations of sexual abuse is that even the most flexible construct of due process focuses us on a struggle for fairness in the face of our human tendency to rush toward moral judgment. But just as importantly, due process isn’t deaf, dumb, and blind. It is essentially evidence-based, so where the facts have emerged — and we have a plethora of such examples now before us — no one need hesitate to pass judgment. At the same time, due process suggests being wary of broadsides that read all accusations identically. Human behavior, especially where sex, gender and power are concerned is often hard to fathom. Because one size rarely fits all, we are constantly challenged to name, call out, and demand action while at the same time accepting nuance and complexity. If this suggests closing your Twitter account, so be it.

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Donald the Dog Whistler

It’s not the fact that there are throwbacks like the people who marched in support of a Robert E. Lee statue in a park in Charlottesville, Virginia, yesterday that surprises me.  Saddens me, yes, but doesn’t surprise.  The only part about all that happened yesterday that did surprise was the response to it all from the president of the United States: I don’t know if he was excrutiatingly selective about his words, or just tone deaf, but he couldn’t find the words, or even the Tweets, to condemn white supremacists.

He didn’t/wouldn’t take sides in a fight over basic human rights, or even pretend to take sides and be seen as part of the mainstream.

What he did do yesterday was dog-whistle a message to some of his supporters, the people who knew he was an ignorant, truth-impaired, narcissistic megalomaniac with the attention span of a two year old but voted for him anyway, because when he promised to “make America great again” they heard “take our country back.”  If we didn’t realize a long time ago what that means to those people, we know now:

The turmoil in Charlottesville began with a march Friday night by white nationalists on the campus of the University of Virginia and escalated Saturday morning as demonstrators from both sides gathered in and around the park. Waving Confederate flags, chanting Nazi-era slogans, wearing helmets and carrying shields, the white nationalists converged on the Lee statue inside the park and began chanting phrases like “You will not replace us” and “Jews will not replace us.”

(snip)

“We’re going to fulfill the promises of Donald Trump” to “take our country back,” said Mr. [David] Duke, a former imperial wizard of the Ku Klux Klan. Many of the white nationalist protesters carried campaign signs for Mr. Trump.

The White House is trying to cover his ass about it today, but what the president said yesterday—when it happened; when it mattered—was “We condemn in the strongest possible terms this egregious display of hatred, bigotry, and violence.  On many sides; on many sides.”

Meaning what, exactly?

Yesterday in Slate, Josh Levin had a great answer to that question:

He then said those three words again—“On many sides”—as if to emphasize that this throwaway phrase was in fact the only bit of his short speech that he truly believed in. He did not talk about white supremacy, and he did not note the prevalence of racist chants. The troubles in Charlottesville, the president said, were everyone’s fault. Or, to put it another way, nobody in particular was more responsible than anyone else for what happened in Virginia this weekend. Not the president. Not the party that enabled him. Not even those who idolize Adolf Hitler.

Trump’s refusal to condemn white supremacist violence, coming on the heels of his silence in the aftermath of last week’s mosque bombing in Minnesota, is just the latest affirmation of his fundamental immorality. The president’s racist, anti-Semitic, Muslim-hating acolytes heard the words Trump didn’t say on Saturday. They know they have an ally in the White House, a man who will abet anyone who abets his own hold on power.

Don’t think that it’s only the liberal mainstream media that thinks Trump is favoring the white supremacists—the white supremacists noticed, and cheered, the fact that he did not attack them and their ideology!

Trump comments were good. He didn’t attack us. He just said the nation should come together. Nothing specific against us.

He said that we need to study why people are so angry, and implied that there was hate… on both sides!

So he implied the antifa are haters.

There was virtually no counter-signaling of us at all.

He said he loves us all.

Also refused to answer a question about White Nationalists supporting him.

No condemnation at all.

When asked to condemn, he just walked out of the room.

Really, really good.

God bless him.

He’s had another 24 hours to think about it, to articulate his beliefs, to try to make clear to people how he feels on the subject.  As of post time, he has not.  [UPDATE 8/14: Here‘s what he had to say today; it does not seem to me that his heart was in it.] [ANOTHER UPDATE 8/15: Never mind, he took it back.]

Josh Levin:

On a day that called for the president to take a stand, he instead made a perverse call for unity. “I love the people of our country,” Trump said at the end of his Bedminster Address. “I love all of the people of our country. We’re going to make America great again. But we’re going to make it great for all of the people of the United States of America.”

The neo-Nazis in Charlottesville heard that call, and so did the posters on the Daily Stormer. “On many sides,” Trump said. These are not anodyne words. They are dangerous ones. On Saturday, the president had the chance to tell the nation what it is he does and doesn’t believe in. That’s exactly what he did.

You could also check out this fine Twitter thread from yesterday, if you want to have a think about the gist of the protest from the white supremacists:

How do you like America?

Three weeks in; time to take a breath and assess the new administration in Washington, D.C.

Donald Trump asked Americans to trust him to do what’s right for America; 46% of those who bothered to vote (roughly 27% of Americans who were eligible to vote) took him up on his offer, and that was enough to give him the ticket to the Oval Office.  But so far he’s made it plain that he doesn’t respect this country and what it stands for; the only thing he’s interested in is what financially benefits Donald Trump.  This is a partial list of some of the fun so far, just off the top of my pointy head:

  • the new president tries to make good on a campaign promise to keep Muslims from coming into the country, stabbing at the heart of the great American belief in freedom of religion while playing on the irrational fears of many of the people who elected him…
  • and after losing in court, for a second time, his retort is—of course—see you in court
  • he succeeded in placing a racist in charge of enforcing civil rights laws…
  • an effort highlighted by the Senate voting to silence one of its members when she tried to image001read into the record a letter that’s already a public document…
  • before then allowing at least two other members to go unsanctioned for reading that same document into the record
  • a top administration official glibly violates the law but gets just a rap on the knuckles…
  • although that shouldn’t be a surprise since the president is happily making a mockery of government ethics by retaining his business interests and turning a profit…
  • while the First Lady goes to court seeking damages for not being able to monetize her new position
  • the president is still massaging his insatiable ego by repeating the unfounded allegation of a voter fraud that, if true, is so massive as to be unbelievable…
  • and making a promise to have his government investigate said claim, a promise that lays dormant (to put in charitably)
  • he made good on a promise to nominate a Supreme Court justice from his pre-election list of approved candidates…
  • and then by not keeping his Twitter thumb quiet and insulting a judge who had the temerity to disagree with him, Trump forced his high court nominee to blandly chastise his benefactor

Jack Shafer thinks the president of the United States is a child throwing a temper tantrum because he doesn’t get everything he wants; Josh Marshall offers a short list of reminders to help us figure out motivations in the Oval Office; Bill Moyers tries to look past the policies and realize that the chaos which Trump (and President Steve Bannon) are creating is an intentional part of a plan, and Eliot Cohen argues that Trump is behaving exactly as many people (many people) predicted.

Any good news?  Yes, there is:

  • the judicial system is proving it is not afraid of the new president (unlike damn near every Republican in the House and Senate) and is living up to its responsibility of interpreting the law and acting as a check on the executive (and legislative) branches…
  • if new subscription rates are any indication, Americans are being reminded of the value of a free press serving as watchdog and are making their individual contributions to support the effort…
  • we have even been able to take a little joy from watching the president’s childish reaction to being criticized.  0qBLuKbpAny president, or anyone who’s ever performed public service at any level, would know to expect disagreement, but this president has apparently lived in a bubble where people do not criticize him, and he doesn’t get it that the world at large doesn’t accept his every utterance as gospel just because he said it.  He has no sense of humor about himself, it seems, takes the unimportant stuff way too seriously, and can’t seem to stop himself from feebly trying to parry each thrust from outside the bubble—thank you, Twitter.  I giggled when I read that Trump took it out on press secretary Sean Spicer because a woman comedian satirized his briefings on “Saturday Night Live,” so I’m eager to see out how he reacts if it should come to pass that his long-time nemesis Rosie O’Donnell gets a chance to take the role of President Bannon.

What’d I miss?  Oh yeah: a New York congressman has “filed a ‘resolution of inquiry’ that amounts to the first legislative step toward impeachment.”  And there’s much more.  As Crash Davis said to his coach when the coach came to the mound during a game to inquire as to the cause of the delay, “We’re dealing with a lot of shit.”  And as my dad would say from time to time, to reinforce that you really didn’t think about what you were doing or saying just then, “How do you like America?”

"I have a dream"

This was my post in August 2013 on the 50th anniversary of Dr. Martin Luther King, Jr.’s “I Have a Dream” speech, including a YouTube clip of the entire speech; I repost it to honor the holiday is his memory and to remind us of his call to a virtuous future…I think some of us could use the reminder about now.

Fifty years ago, Dr. Martin Luther King, Jr., took the podium at the Lincoln Memorial and delivered his “I Have a Dream” speech at the March on Washington for Jobs and Freedom; it is still one of the most profound and moving speeches in the history of American rhetoric, on top of what it meant to the civil rights movement.  King did not dream that his children would one day be able to watch the speech on their desktop computer or smartphone, but they can, and so can we.

The whole thing is remarkable, including the peek you get at what a slice of America looked like in the early 1960s; go to the 12:00 mark to catch the dreams, and then on through to the end for the ad-libbed “let freedom ring”s and the promise of ultimate freedom which still stir my emotions.

“…let freedom ring.  And when this happens…and when we allow freedom ring, when we let it ring from every village and every hamlet, from every state and every city, we will be able to speed up that day when all of God’s children, black men and white men, Jews and gentiles, Protestants and Catholics, will be able to join hands and sing in the words of the old Negro spiritual: free at last, free at last, thank God Almighty, we are free at last!”

Out of the coverage leading up to this week’s anniversary I’ve pulled a couple of gems: from Brian Naylor at NPR, a look at the little segregated southern town that was Washington, D.C. 50 years ago; and from Robert G. Kaiser in The Washington Post, a reporter’s remembrance of the event he covered 50 years earlier, with a quite remarkable admission—that the local paper blew it when it all but overlooked King’s speech in its coverage of the march!

Equal protection: it’s what we do here at the ol’ USA

The first time I wrote about gay marriage rights here was more than four and half years ago  (“Equal justice for all: the gay rights tide has turned,” Oct. 15, 2010) and the kernel of the argument was already formed:

We can proclaim not to understand why people are homosexual, or embrace a religious belief that homosexual activity is a sin, but none of that matters in a tolerant, secular, civil society.  The experts can’t say why a person is sexually attracted to one gender or the other.  And it violates the rights of due process and free speech guaranteed to each American in the Constitution to treat someone differently because of their sexual orientation just as it would to treat them differently because of their gender or their ancestry.

(snip)

You don’t have to “understand” gay people any more than you have to “understand” people of a different race or a different religion.  You only have to understand that these people are Americans like you, who believe in American rights like you do, who want to enjoy American freedoms like you do…

This week, history: a 5-4 decision from the Supreme Court of the United States in Obergefell v Hopkins takes its place alongside the great civil rights and civil liberties decisions of American jurisprudence.  The U.S. Constitution guarantees the right of all Americans to civil marriage, and all its advantages and protections, be they heterosexual, homosexual, bisexual, or asexual.  As far as the civil law is concerned this isn’t about sex: it’s about equal treatment under the law.

Homosexual conduct is no longer a civil crime in this country, and thus is no reason to withhold the full rights and exercise of citizenship from homosexuals.  Homosexual conduct is objectionable within many organized religions, to be sure, and virtually all of the opposition to extending the right to marry to gays and lesbians has come on religious grounds.  For the most part I don’t question the sincerity of that religious belief (although it would be prudent to account for the cynical exploiters, primarily from the political realm).

But that’s beside the crucial point, which is that, in this country, civil law is not answerable to religious law.  The First Amendment guarantees that we each and all get the freedom to practice our religions, but also guarantees that none of those religions wields authority directly over civil society.  The Constitution protects us from any majority that would try to force one or another religious doctrine onto everyone—because the Constitution takes religious liberty for all just that seriously—and guarantees that all men and women deserve equal treatment under law.  Despite the nearly hysterical dissenting opinions of some of his colleagues, Justice Anthony Kennedy’s decision didn’t create a new right; it reminded us about a right that’s been there all along…and my friend Mr. Jefferson recognized the rationale by which Kennedy connected the dots (and Peter Foster of the Daily Telegraph reminded via the Twitterverse) long ago:

Obergefell does not mean that First Amendment protections of religious liberties are at risk, despite what you’ve heard.  Some of that reaction is well-intentioned misinformation; most is hot air from right-wing politicians and conservative religious extremists who need a boogieman to scare their supporters into donating money.  (I’m looking at you, Governor Abbott—thanks, Evan Smith for the Tweet-tip.)  In either case, they are wrong.  Religious organizations are exempt from this ruling, as they are exempt from many other laws, like, say, tax laws.  As Lisa Falkenberg put it in this morning’s Houston Chronicle, this ruling has no applicability to individuals in their private lives or to private religious institutions: “It does not keep anyone from judging, or hating, or even just politely refusing to acknowledge gay people.  No court ruling has ever told a pastor whose wedding he or she can bless.  That hasn’t changed.”

It is possible to believe in the religious sacrament of marriage and still accept this court’s decision on civil marriage rights for homosexuals.  Michigan Representative Justin Amash, a Tea Party/Libertarian/Republican, made the point quite nicely this week on Facebook:

Throughout history, different cultures have defined marriage according to their own customs and practices. Christians, Jews, Muslims, Buddhists, Hindus, agnostics, and atheists do not share identical views on marriage. In fact, significant differences regarding marriage exist even within Christianity.

What makes marriage traditional is not its adherence to a universal definition but rather that it is defined by personal faith, not by government. For thousands of years, marriage flourished without a universal definition and without government intervention. Then came licensing of marriage. In recent decades, we’ve seen state legislatures and ballot initiatives define marriage, putting government improperly at the helm of this sacred institution.

Those who care about liberty should not be satisfied with the current situation. Government intervention in marriage presents new threats to religious freedom and provides no advantages, for gay or straight couples, over unlicensed (i.e., traditional) marriage. But we shouldn’t blame the Supreme Court for where things stand.

To the extent that Americans across the political spectrum view government marriage as authoritative and unlicensed marriage as quaint, our laws must treat marriage—and the corresponding legal benefits that attach—as they would any other government institution. So, while today’s Supreme Court opinion rests upon the false premise that government licensure is necessary to validate the intimate relationships of consenting adults, I applaud the important principle enshrined in this opinion: that government may not violate the equal rights of individuals in any area in which it asserts authority. (emphasis added)

The civil right of marriage is open to all Americans.  We must be diligent about making sure that the implementation of this decision protects the First Amendment rights of those with a religious objection to same-sex marriage, keeping in mind that it doesn’t give them the right to ignore the law.  And while we’re at it we should work on getting rid of the laws which still permit discrimination against gay Americans in the areas of housing and hiring and other aspects of day to day life, and any other laws that violate anyone’s right to equal treatment.  Because we’re Americans, and that’s what we do.