Category: law

FFRF unwisely battles for the right of transsexual women (medically treated or not) to compete in women’s sports

November 12, 2022 • 1:00 pm

I’ve always been a fan of and a member of the Freedom from Religion Foundation (FFRF). I am on their Honorary Board of Directors, and in 2011 received their “Emperor Has No Clothes Award”, which as they say is “reserved for public figures who take on the fabled role of the little child in the Hans Christian Andersen fairy tale and ‘tell it like it is’—about religion.” I’ve was very honored with their recognition, and humbled to be added to the many people I admire who have also gotten the gold statue of the naked emperor—a statue made by the same company that makes the Oscars.

Lately, however, the FFRF has crept out of its bailiwick of enforcing separation of church from state, and is, like the ACLU and the SPLC, engaged in matters of social justice. Well, that’s their call, and I wouldn’t beef about it unless I thought they’ve undertaken campaigns that are unwise.

Well, the FFRF has, and has gone to ground on the same issue where the ACLU went astray: transgender issues in sports. I hasten to add again that I think that with almost no exceptions, transgender people should have all the rights, privileges, and moral status as cisgender folks. I’m happy to call them by their chosen sex, treat them as members of their chosen sex, and use their chosen pronouns.

The few exceptions, which I’ve written about in detail, include sports participation (particularly trans women competing against biological women), rape counseling, and inhabiting sex-segregated prisons. There are good reasons for these exceptions, and the reasons all involve fairness to biological women—fairness that can be abrogated by considering transsexual women as fully equivalent to biological women.

Now the FFRF, as shown by its new press release, has joined as amicus in a suit against Indiana public schools, with the plaintiffs arguing that a state law prohibiting transgender girls or women from competing against biological women in public-school sports is unconstitutional, violating Title IX. Title IX prevents schools that receive federal money from discriminating between the sexes in any school activity, including sports. Click to read the FFRF’s press release:

Excerpts from the above:

The Freedom From Religion Foundation has signed on to an amicus brief challenging a new Indiana law that discriminates against transgender school athletes.

The National Women’s Law Center and its law firm partner, Hogan Lovells, have filed a friend-of-the-court brief before the 7th U.S. Circuit Court of Appeals in A.M. v. Indianapolis in support of the plaintiff, a 10-year-old transgender girl who was kicked off her elementary school softball team after a sports ban targeting transgender girls and young women took effect in the summer of 2022. A.M. and her family, represented by the ACLU, won a preliminary district court injunction finding that the anti-trans ban on sports participation likely violates Title IX. The state of Indiana has appealed.

Indiana’s House Enrolled Act 1041, which was briefly in effect in July, forces Indiana public schools to bar any student from participating on a female sports team if the student is deemed to be “male, based on a student’s biological sex at birth in accordance with the student’s genetics and reproductive biology.” As the district court properly recognized, this type of sex discrimination violates both the text and the purpose of Title IX. It also contravenes the Equal Protection Clause of the 14th Amendment to the U.S. Constitution.

Note that the law doesn’t prohibit transgender athletes from participating in sport, but prohibits transgender women, born as biological males, from participating on female sports teams.  The FFRF brief goes on:

The National Women’s Law Center brief that FFRF has signed on to highlights how inclusive school policies (such as the local Indianapolis policy displaced by an anti-trans statewide ban) are consistent with Title IX and a key part of creating gender equity in education. The inequities girls face in K-12 sports are not due to inclusion of transgender girls and women. The law will impact all women — not just women and girls who are transgender — and will be particularly harmful to Black and brown women and girls.

The Indiana law threatens opportunities for girls and women who seek to play school team sports, the National Women’s Law Center amicus brief emphasizes. “Banning certain students from sports teams, merely because of who they are, does not promote fairness or safety for cisgender girls; instead, exclusionary policies like those required by HEA 1041 only serve to harm transgender students, as well as cisgender women and girls who do not conform to sex stereotypes,” it states. Besides, appellants’ claimed concerns about maintaining the “fairness” and “safety” of girls’ sports rest on harmful and inaccurate sex stereotypes. Athletes come in all shapes, sizes and physiological makeups. These differences may be advantageous or disadvantageous based on their sport.

And the Indiana law creates a discriminatory ban that will harm women and girls who are transgender, as well as intersex and otherwise gender nonconforming, the brief maintains. “Participation in sports generally provides students with a supportive network and social status that can minimize feelings of difference and isolation, a benefit that is especially crucial for transgender student athletes because this can help to foster acceptance and positive peer relationships,” states the brief.

And they bring in race, although I’m not sure exactly why “women and girls of color” will suffer disproportionately, for transsexual women or girls of any color are barred from participating in women’s sports. Even if you take intersectionality into account, the Indiana law causes no disproportional harm that I can see to people of different ethnicities. The relevant FFRF bit:

Plus, women and girls of color will be disproportionately targeted and harmed by the new Indiana law. Exclusion of transgender women and girls has a far-reaching impact and can adversely affect other women and girls, as well. Black and brown girls and women — who are routinely targeted for not conforming to society’s expectations of white femininity — are particularly vulnerable to harm from the types of exclusionary policies the state of Indiana is asking the court to impose. Serena Williams is perhaps the most prominent woman of color to experience this policing but far from the only.

Like the ACLU, the FFRF has made this misstep on two grounds.

First, according to Biden’s new policies, any person who declares themselves to be of the sex different from their birth sex is officially deemed to have transitioned, regardless of whether they have received surgery or medical treatment. This means that if a biological male simply declares that he’s a female, the court must take his word for it and allow him to compete on girls’ or women’s sports teams.

And that brings us to the second issue: fairness to biological women who do sports. There is now sufficient data to show that once puberty has begun, biological males begin developing traits that give them performances superior to those of biological females in most sports: bone density, strength, muscle mass, and so on. And even transsexual women who take hormones that reduce testosterone still retain these traits for at least two to three years—and perhaps permanently. For data summarizing these differences, see here and here, and, as the NYT wrote in an article on the issue:

But peer reviewed studies show that even after testosterone suppression, top trans women retain a substantial edge when racing against top biological women. . .

. . .“Athletic performance depends on a lot of factors: access to coaches and nutritionists and technical skill,” Mr. Mosier said. “We are making broad generalizations about men being bigger, stronger, faster.”

Most scientists, however, view performance differences between elite male and female athletes as near immutable. The Israeli physicist Ira S. Hammerman in 2010 examined 82 events across six sports and found women’s world record times were 10 percent slower than those of men’s records.

“Activists conflate sex and gender in a way that is really confusing,” noted Dr. Carole Hooven, lecturer and co-director of undergraduate studies in human evolutionary biology at Harvard University. She wrote the book “T: The Story of Testosterone.” “There is a large performance gap between healthy normal populations of males and females, and that is driven by testosterone.”

The sprinter Allyson Felix won the most world championship medals in history. Her lifetime best in the 400 meters was 49.26 seconds; in 2018, 275 high school boys ran faster.

Now these differences begin with puberty, and, as the NYT say, are viewed as “near immutable” (some sports, like shooting, however, haven’t been tested, and may not show a difference). One might make a case that before puberty, biological men can compete against women, so maybe the ten-year-old trassexual girl kicked off the (presumably girls’) softball team has a case. But the Indiana law applies to all public schools serving children and adolescents up to age 18, and the issue of unfairness to biological women begins when a biological male starts puberty. One law cannot fit everyone nor be fair to everyone. (See all my posts on this issue here.)

This has been recognized now by several sports organizations, including the Olympics, which “used to require all women to have testosterone levels under 10 nanomoles per liter and transfeminine people to be on testosterone-supressing [sic] medication for at least a year.”  However, the Olympics have now rescinded that rule, and has basically bailed, leaving the guidelines for transsexual or intersexual athletes up to each sport. It’s a mess.

I’v proposed several solutions to this issue, all of which seem to allow both men and women to compete in sports without violating Title IX (one is an “other” category for transsexual athletes, intersexual athletes, and so on, while another is allowing both transsexual men and transsexual women to compete against biological men in an “open” category). These avoid the issue of forcing biological women to compete against biological men who have assumed the gender of women.

The issue is complex, and not nearly as simple as the FFRF, ACLU, and other trans advocates make out.  It is at once philosophical, moral, and above all biological. To say that “trans women are women” doesn’t hold true in the case of sports performance.

Now some people say this is a trivial issue. Why not let trans women compete on women’s teams? After all, there aren’t many transsexual women athletes. But the rate of sex transitioning has increased sharply in the last 12 years for both males and females aged 12-17, and the issue will not remain “trivial” for long. Further, even a single transsexual woman who wins a competition in women’s sports based on biological advantage gained at puberty creates a lot of unfairness for women (who generally keep silent lest they be called “transphobic”) while advantaging one person. To some extent that tilts the playing field that Title IX tried to level.

I’m not sure why organizations like the ACLU and FFRF are leaving their traditional bailiwicks to get involved in women’s sports, but I wouldn’t mind so much if the stands they took were sensible ones—at the very least based on what we know about the science of sex differences. But they aren’t: these new forays into sports reflect a progressive ideology that sounds good but creates more problems than it solves.  Fairness demands more data and, at present, the greatest care in dealing with the issue of allowing biological men who transition to compete against biological women. We already know enough, though, to declare without reservation that medically unmodified biological men who present as transsexual women should not be allowed to compete in women’s sports. And we know enough to hold off on lawsuits forcing biological women to compete against medically treated transsexual women until we have actual data showing that there is no athletic advantage accruing to the latter group during puberty.

You can see the full amicus brief here; I’ve put a few excerpts below (click to read).

Excerpts:

Amici are gravely concerned about the harm H.E.A. 1041 will cause to many women and girls by banning all transgender women and girls from playing on school sports teams consistent with their gender identity. H.E.A. 1041 rests on fundamentally inaccurate and harmful stereotypes regarding athleticism, biology, and gender, which particularly harm women and girls who are transgender or intersex4 and Black and brown girls, who are also likely to be targeted because of racial and gender stereotypes that they are less feminine than white girls. These stereotypes frequently result in girls being told outright that they are not, in fact, girls. Such gender policing has been used to scrutinize, demean, and exclude transgender and cisgender women athletes, including those who do not conform to sex stereotypes regarding “femininity.”

. . . Appellants wrongly suggest that H.E.A. 1041’s mandated discrimination against transgender women and girls is necessary to ensure equivalent athletic opportunities for cisgender women and girls under Title IX. In fact, enforcing laws like H.E.A. 1041, that discriminate against women and girls who are transgender and others perceived as not conforming to sex stereotypes, is itself a violation of Title IX. As the U.S. Supreme Court confirmed in the Title VII case, Bostock v. Clayton County, a policy that discriminates on the basis of transgender status necessarily discriminates on the basis of sex.

Appellants rely on inaccurate sex stereotypes regarding supposed categorical physiological differences between cisgender and transgender women and girls to argue H.E.A. 1041 is necessary to protect athletic opportunities for cisgender girls. See Appellants’ Br. 2, 44-46. This narrative is false. Appellants cannot point to any evidence that allowing transgender girls to compete will curtail athletic opportunities for cisgender athletes. To the contrary, research indicates that in states where women and girls who are transgender are included in sports, participation for all women and girls remains steady or even increases..

. . . Transgender athletes likewise have a range of athletic skills, and are far from uniform in their bodies’ sizes or shapes. The assumption that transgender girls and women have categorical athletic advantages over cisgender girls and women is inaccurate and based on stereotypical gender norms around the types of bodies that are more athletic and the qualities connected with athleticism.

Here’s the bit on race and, apparently, intersectionality:

Exclusion of transgender women and girls has a far-reaching impact and can adversely affect other women and girls as well. Black and brown girls and women—routinely targeted for not conforming to society’s expectations of white femininity—are particularly vulnerable to harm from the types of exclusionary policies Appellants ask the Court to impose. When Black and brown women’s bodies fall outside of traditional notions of white femininity, they are subject to policing, discrimination, and harassment.

In the end, this kind of activism will completely efface the reason why men’s and women’s sports are separate.

***************

Bonus: Dr. Phil talks about transsexual athletes with Carole Hooven, whom we met yesterday. And look at the screenshot at 1:14!

Dr. Phil used my website (but of course I got the figure from someone else):

The affirmative-action hearings at the Supreme Court

October 31, 2022 • 2:00 pm

I’ve listened to the broadcast audio of the two cases of affirmative action before the Supreme Court. I didn’t learn much beyond the fact that lawyers on both sides are really good at ducking hard questions from the Justices. The judgment of the Court, I think, is preordained: either a 6-3 or a 5-4 ruling that prohibits considering race as a criterion to college admission. (The colleges at issue are Harvard and the University of North Carolina.)

The questions of the justices were pretty much as expected, with, surprisingly, Clarence Thomas speaking up quite a bit in the North Carolina case. He rarely says anything.

The most vociferous justices who are likely to vote to overturn Bakke were Alito, Barrett, Kavanaugh, and to a lesser extent Roberts, while all three liberal justices asked questions supportive of affirmative action.

The arguments were covered in real time by the New York Times with the amusing headline, “Conservative justices seem skeptical of affirmative action program.” (This is like “dog bites man.”)

Here’s the NYT’s summary of both cases, involving Harvard and the University of North Carolina:

The race-conscious admissions programs at Harvard and the University of North Carolina seemed to be in peril at the Supreme Court on Monday. By the end of five hours of vigorous and sometimes testy arguments, a majority of the justices appeared ready to reconsider decades of precedents and to rule that the programs were unlawful.

Such a ruling could jeopardize affirmative action at elite colleges and universities around the nation, decreasing the representation of Black and Latino students and raising the number of white and Asian ones.

Here are some of the major developments:

  • Members of the court’s six-justice conservative majority asked skeptical questions about the interest in educational diversity that the court has said justifies taking race into account in admissions decisions.

    “I’ve heard the word diversity quite a few times, and I don’t have a clue what it means,” Justice Clarence Thomas said. “It seems to mean everything for everyone.”

    Justice Samuel A. Alito Jr. asked a similar question about the term “underrepresented minority.”

    “What does that mean?” he asked, adding that college admissions are “a zero-sum game” in which granting advantages to one group necessarily disadvantages others.

  • The court’s three liberal members put up a spirited defense of affirmative action.

    Justice Ketanji Brown Jackson said it would be odd if admissions officers could consider factors like whether applicants are parents, veterans or disabled — but not if they are members of racial minorities. That has “the potential of causing more of an equal protection problem than it’s actually solving,” she said.

    Justice Elena Kagan said she was worried about “a precipitous decline in minority admissions” were the court to rule against affirmative action in higher education. “These are the pipelines to leadership in our society,” she said of elite universities.

  • Chief Justice John G. Roberts Jr. asked questions about race-neutral means of achieving diversity, suggesting that he might be looking for a way to limit the sweep of a decision rejecting race-conscious programs.

  • The court’s decision in the two new cases — Students for Fair Admissions v. Harvard, No. 20-1199, and Students for Fair Admissions v. University of North Carolina, No. 21-707 — will probably land in June.

It’s absolutely clear that the conservative justices are indeed dubious about affirmative action; I have no reason to change my prediction.

What I think about the decision will, of course, depend on how it comes down. I still cannot find myself on the side of the plaintiffs (or the conservative justices), as I see affirmative action as a useful form of reparations. The Bakke case ruled, in contrast, that diversity was of value as an “inherent good”, but I think the former argument is more defensible since the latter assumes that ethnic diversity is paramount over other forms of diversity (the conservative justices kept bringing up religious diversity), and that, in what seems a patronizing view, all members of a given ethnicity share similar “goods” that they bring the campus (i.e., have similar opinions).

Given that the justices will almost surely strike down Bakke, I’ve suggested that a “race neutral” solution might be to use socioeconomic status as an admissions criterion: fostering “socioeconomic diversity”. This will also increase ethnic diversity as a byproduct, but perhaps not in a way that would violate the court’s upcoming decision. And that solution implicitly addresses the “reparations” criterion rather than the ‘inherent good” criterion.

The Harvard hearings were similar to the UNC hearings, and the Justices’ arguments against race-based admissions largely the same: “how long will this last?”; “What about other criteria for diversity?”, “Isn’t this like Harvard’s old Jewish quota?”, and so on. There was more concentration on whether Harvard was using “personality scores” as a way to reduce Asian-American admission, for that was the impetus for the suit in the first place: an “Asian quota” supposedly enforced by deliberately rating that group down on personal traits.

One note: Elizabeth Prelogar, the U.S. Solicitor General who’s argued in both cases for affirmative action, did a terrific job. All the lawyers clearly prepared thoroughly for this important hearing, but Prelogar was the quickest with comebacks to criticism of affirmative action.

If you’ve listened or read about these cases, I welcome your comments below.

Lawsuits impending against Tavistock

September 5, 2022 • 1:15 pm

As I’ve mentioned before, London’s Tavistock Gender Identity Development Service (GIDS) has been dismantled after a report by Dr. Hilary Cass that found serious missteps, weaknesses, and evidentially unsupported treatments of gender dysphoric children. Tavistock’s services will be farmed out to other centrs, with a concurrent de-emphasis on the rush-to-judgement form of “affirmative care” (i.e., believe the child and get doctors and therapists to simply facilitate a hoped-for sex transition), as well as a deemphasis on the use of surgery, hormone therapy, and puberty blockers.

This is in line with what other European nations are doing: pulling back from the no-holds-barred form of affirmative care, raising ages at which adolescents can get drugs or surgery, and using puberty blockers, whose safety has not been demonstrated, only in clinical trials. In those countries, it was the unevidenced medical and psychological care that led to the pullback, while in the UK it’s it’s not only that, but the threat of lawsuits against Tavistock, as I discussed in an earlier post.

The lawsuits, as the notice below indicates, are now a reality. Of the 19,000 young people treated at Tavistock, over 1,000 of them may bring lawsuits against the GIDS via “Pogust Goodhead,” an international litigation firm specializing in group claims.  The piece below allows you to start filing a claim, and I doubt readers here will be doing that, but it also outlines the basis for claims, which is of more interest. Click to read:

I’ll just reproduce the section, “What is the case about?”:

The Tavistock clinic opened in 1989 as the UK’s only dedicated gender identity clinic for children and young people. Prompted by concerns from patients, parents, and clinicians at the clinic, the NHS commissioned an independent review of the GIDS service.

The Cass Review’s interim report in 2022 made a number of recommendations on how the service can be changed and improved. Following the findings of the review, the GIDS Clinic at Tavistock is set to close in Spring 2023 and will be replaced with regional centres.

It is expected that localising services to regional hospitals will result in much needed improvements to standards of care and treatment and reduce lengthy waiting lists.

The report raised a number of concerns, including the lack of a consistent clinical approach to assessing the correct treatment pathway for individuals.

Members of staff at the Tavistock clinic reported pressure to adopt an ‘affirmative and unquestioning approach’ to children and young people reporting feelings of gender dysphoria.

Consequently, there are concerns that some children and young people may have been referred down the path of hormonal treatments, without adequate counselling taking place to understand the background of their feelings of gender dysphoria. The report addresses the issue of ‘diagnostic overshadowing’ meaning that other health conditions may have been overlooked.

As a result, some children and young people have been prescribed hormonal treatments before it was established that this was the appropriate treatment for them.

Service Specifications set by NHS England recommends at least 3-6 appointments at the initial assessment stage, Following this an assessment report and care plan should be produced.
Without a proper assessment process some children may have been misdiagnosed or other health conditions have been missed resulting in delays in being sign posted to the appropriate services.

Studies suggest that a number of children who attended the GIDS clinic later regretted the decision and subsequently wish to de-transition.

If you have concerns about your (or your child’s) clinical experience at GIDS at Tavistock or if you believe you should never have been prescribed hormone treatment in the first place, please get in touch with our lawyers who will be able to help and guide you through the process.

In other words, Tavistock is being accused of a form of medical malpractice: rushing first to judgment and then to treatment.

I don’t know how successful these lawsuits will be, but I doubt that this firm, which has a good record of successful litigation, would instigate such a large-scale lawsuit unless they thought they had a good chance of winning, whether it be in the courts or via settlements.  Let this be a lesson to those Americans and American organizations who are huge advocates of “affirmative care.” As I said, money talks louder than anything in America, and if we’re to assure that gender dysphoric children get thoughtful and empathic treatment, only the threat of lawsuits will do that.  Even ideology must bow before Mammon.

Laurence Tribe on why the Dobbs decision was wrong—and based on religion

September 1, 2022 • 11:00 am

Laurence Tribe, a Harvard Law School professor once thought to be a future nominee for the Supreme Court (too liberal, I guess), has written a comprehensive attack on the Dobbs decision of the Court—the decision that overturned Roe v. Wade.  Tribe is an expert on American Constitutional law (in fact he wrote the definitive book on the subject), so he knows his onions. And his critique of the majority decision is devastating, showing that it’s not only politically based and rests on shaky legal arguments, but allso rests firmly on Christianity.

It’s a long article, and not always an easy read (Tribe isn’t a master of lucid prose), but it’s well worth perusing, for it’s quite convincing that Alito’s majority argument for overturning Roe (“there’s nothing in the Constitution conferring a right to abortion”) is bogus.

The article, despite being in the New York Review of Books, is free; click below to read it.

I’ll just put what I see as Tribe’s main points in bold below. Indented bits are (usually) quotes from the article.

The Ninth Amendment reserves unnamed rights as protected by the Constitution, and the Fourteenth Amendment  protects deprivation of “life, liberty, and property without due process of law.” These together protect the right to abortion. 

Here’s the Ninth Amendment: “The enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people.”

And the Fourteenth (section 1; the “Liberty Clause”): “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”

Tribe’s take:

That “the Constitution makes no express reference to a right to obtain an abortion,” a point made as though it were some sort of discovery, in no way establishes that the Fourteenth Amendment’s protection of “liberty” from government deprivation “without due process of law” excludes control over one’s own body, not to mention the course—indeed, continuation—of one’s life. On the contrary, the Ninth Amendment’s explicit instruction that the “enumeration in the Constitution, of certain rights, shall not be construed to deny or disparage others retained by the people” rules out any claim that the Constitution’s failure to list the right to bodily integrity among its “enumerated” protections excludes that right from those “retained by the people.”

. . . Conspicuously absent from Dobbs is any coherent legal analysis—or anything that deserves to be called “analysis” at all—of why someone’s right to avoid compelled pregnancy, involuntary childbirth, and forced parenthood is not an essential part of the “liberty” protected by the Fourteenth Amendment (and perhaps even of the freedom from “involuntary servitude” protected by the Thirteenth). As a result, it’s the Alito opinion in Dobbs, and not Justice Harry Blackmun’s opinion in Roe, that is “not constitutional law and gives almost no sense of an obligation to try to be.”

Put simply, Dobbs is a fiat issued by five justices simply “because they could.”

As for the Ninth not conferring any right to abortion,

Although many observers criticized Alito’s leaked draft opinion for failing even to mention the Ninth Amendment, the opinion as finally released was almost defiant in its dismissive treatment of that amendment’s rule of construction.

The only thing the Court says about it in Dobbs is that “the abortion right” is not itself “founded…in the Ninth Amendment’s reservation of rights to the people.” But that is a wholly irrelevant observation and confuses the category of “rights” with the category of rules about how to read a text dealing with rights. Nobody has ever seriously claimed that the “abortion right,” or indeed any substantive right, could possibly be “founded” in a rule about how to read the Constitution. The Ninth Amendment is not the “foundation” of any group of rights but a directive about how constitutional decisions about rights are to be made. Searching for rights in it is akin to searching for actual pieces of lumber in a manual on how to build a house.

And a bit more, concentrating on Kavanaugh’s decree that the court would leave each state to decide for itself, and invoking a nonexistent “right to interstate travel” as being in the Constitution:

Explaining why the Liberty Clause should prioritize, say, the freedom of speech or of religion, or the right to bear arms for self-defense, or the right to exclude the military defenders of the nation from one’s home “in time of peace” over the no less basic freedom to determine what is to become of one’s own body would be no mean task. After all, those rights are protected from infringement by the states not because the text of the Constitution requires it. The Bill of Rights restricts only the federal government. The states cannot infringe those rights because the Supreme Court has said they are fundamental rights whose infringement, like the right to abortion before Dobbs, would violate the Fourteenth Amendment’s Liberty Clause.

Particularly puzzling is Justice Kavanaugh’s insistence, in his separate concurring opinion, that the Court’s decision to let each state decide for itself whether and to what degree to protect the right to end a pregnancy will leave individuals who live in states where abortion is criminalized entirely free to travel to other states to obtain abortions without penalty. How does he know that? Because, he says, of “the constitutional right to interstate travel.” But no such right is expressly mentioned in the Constitution, any more than is the right to control what goes on in one’s own body. Both rights are at best implicit in the Constitution, not enumerated anywhere in its text. This is not to denigrate the existence or significance of the right to interstate travel, a long-settled part of what knits the states into an inseverable Union, or to undermine its protections for those helping women escape the clutches of states that ban abortion and make criminals of all those who facilitate it. It is simply to expose the glaring inconsistency in Justice Kavanaugh’s analysis, without whose vote there would have been no majority to overrule Roe.

This whole kerfuffle shows the deficiencies of “originalism”: that judgments should be made based on what’s explicitly stated in the Constitution or what would have been understood when it was written.  There are simply too many things that have changed since the Constitution was written, things that could not have been anticipated by its authors.

The Court’s insistence that Roe had “no sound basis in precedent” is bogus.  

Tribe:

To support the idea that Roe and the 1992 reaffirmation of its core holding in Casey had no “sound basis in precedent” and could thus be safely overruled without causing damage to the fabric of the law or undoing the web of other decisions on which people had come to rely, the Court in Dobbs simply listed a series of rights, as though it was self-evident that they bore no similarity to the right to decide whether and when to terminate a pregnancy. These included the rights “to marry a person of a different race,…to marry while in prison,…to obtain contraceptives,…to reside with relatives,…to make decisions about the education of one’s children,…not to be sterilized without consent,…and in certain circumstances not to undergo involuntary surgery, forced administration of drugs, or other substantially similar procedures,” as well as the right “to engage in private, consensual sexual acts” and “marry a person of the same sex.”

But merely noting, as the Court did, that those rights did “not concern abortion” obviously fails to establish that they are not analogous to the right to reproductive autonomy. It is thus difficult to take seriously the statement by the Dobbs majority that its repudiation of the right to abortion will not ultimately serve as a precedent to rescind some or all of these seemingly similar rights, especially given the explicit statement in Justice Thomas’s concurrence that they are without foundation and that future litigants should attack them on the basis of Dobbs.

Tribe adds that justices in the Dobbs majority have expressed opposition to other rights, such as the right to marry guaranteed by Obergefell v. Hodges, and those “rights”, too, are endangered. Though the majority opinion says that the Dobbs decision is a one-off, “limited to the present circumstances”, that’s probably not true. As the minority opinion notes, ““Either the mass of the majority’s opinion is hypocrisy (“duplicity”, as Tribe calls it), or additional constitutional rights are under threat. It is one or the other.”

The Court’s ruling that states can ban all abortion as one option is explicitly a religious view, and thus violates the First Amendment. 

Tribe:

Whatever anyone might have thought in 1868, when the Fourteenth Amendment was adopted, it has since become clear that “conception,” as I wrote in 1973 when defending Roe v. Wade, is “a complex and continuous process” of cell division followed by chromosomal recombination and in no sense “an objectively definable event”:

Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.

The attribution of metaphysical and legal status to a developing embryo from some particular point in time represents not a discovery of an empirical datum about reality but a choice, all but invariably grounded in one or another religious tradition or teaching, about what signals the creation of an individual human soul.

And this means that state rulings that “personhood” or “fetal rights” begin at conception are also religious views and abrogate the First Amendment (remember that members of other religions have insisted that the Dobbs decision violates their rights).  Here’s something Tribe wrote in 1973 to defend the decision in Roe v. Wade:

Although none [can] deny that the developing fetus, and indeed the unfertilized ovum, represent[s] “potential human life,” and while all [can] agree that the infant at birth [is] fully and independently a human being and entitled to treatment as such, the question of when the mysterious discontinuity [is] crossed—when the embryo or fetus “bec[omes] fully human”—[cannot] be discussed in secular terms at all. In fact, the only bodies of thought that have purported in this century to locate the crucial line between potential and actual life have been those of organized religious doctrine.

And what he writes now:

 It is little wonder that justices who view every instance of conception as a holy event would be inclined to treat the “moment” a new life is present in a woman as the moment from which any state is entitled to criminalize the termination of that life. It is but a short step from such a view to the dogma that the “moment of conception” marks the point at which any state may be constitutionally obligated to treat that life’s termination, whatever the reason, as a terrible crime. The Dobbs “compromise” making it a matter for each state to determine is no more consistent and stable than the 1857 Dred Scott compromise making the status of slaves and their descendants a matter for states to decide.

It is a fair inference from the First Amendment’s ban on “establishment of religion” that the Constitution should not be hijacked by any primarily religious movement or by a political movement that exploits religion as a Trojan Horse. Yet Dobbs followed—and embodies the approach of—a series of Supreme Court decisions systematically eroding the sometimes-maligned “wall” of separation between church and state. The current Court’s unmistakable determination to breach that barrier to government endorsement of particular religious beliefs reached its apex this past term in a ruling that treated a government employee’s “proselytizing on government property during a public school function” as “private, personal and quiet” when it was anything but, and was indeed highly coercive.

The theocratic movement to advance religiously based governance—the antithesis of genuine religious freedom—has installed as the law of the land the essentially unreasoned position advanced in Dobbs, replacing the compromise between life and liberty embodied in Roe and Casey with the absolutist claim that the presence of a potential life instantly and automatically transforms a woman’s body into a vessel that governments are free to regulate as they see fit. This is unlikely to be the final step on the treacherous path the Court has chosen.

These three arguments in tandem (particularly the last one) make a compelling case that not only is the right to abortion not specifically in the Constitution, but didn’t need to be to be Constitutional, fpr similar rights have been affirmed as Constitutional despite their similar status to the “right to abortion.” As a strict First Amendment person, I also find the religious argument compelling. The Dobbs decision implicitly affirms a religious view. That view is not unique to Christianity, but it’s still religious, and privileging religion over nonreligion is itself unconstitutional.

The Dobbs decision was wrong from the get-go, and Tribe’s article is the most cogent one yet to show us why. Given the youth of the conservative justices, it’s likely that equally wrong decisions will follow, giving bogus Constitutional justification.

At the end, Tribe mentions a speech recently given by Alito mentioning the notion that “religious liberty is worth special protection.” Nope, it’s not, for secular liberty, with its philosophy not based on the concept of a “soul,” is worth just as much protection. One cannot base laws on ideas that are manifestly bogus, like a soul, and rest solely on unevidenced religious views.

The solution? Tribe notes that he reluctantly thinks that the court should be enlarged to thirteen judges, but he also recognizes that this is not politically feasible. As for me, I see no solution at all. Mitch McConnell, as well as RBG, who refused to retire, have produced this shameful situation.

h/t: Darrell

Gibson’s Bakery wins for good; Supreme Court of Ohio upholds verdict against Oberlin College

August 31, 2022 • 9:30 am

If you’ve been on this site for a longish while, you’ll know about the legal fight between Gibson’s Bakery and Oberlin College, which has dragged on since 2016. My many posts on it can be seen here, and if you want a summary, I’ll refer you to the Wikipedia page on Gibson’s Bakery v. Oberlin College.

In short, what happened is that on November 9, 2016, proprietor Allyn Gibson caught a few Oberlin students, one of whom was black, shoplifting wine (and also trying to buy more booze with fake IDs. Trying to apprehend the thief, a younger Gibson, Allyn (not the one mentioned below) got involved in a scuffle, with several Oberlin students beating and kicking him on the ground. The three students later pleaded guilty.

Because there was race involved, Oberlin administrators, as well as students, framed this as some kind of racist attack by Gibson’s, and instead of keeping silent, which is what they should have done, the administrators encouraged (legal) student protests against the bakery, stopped doing business with it, and defamed it. The administration also used College money to buy food and supplies for the student protestors. The protests, of course, were on the grounds of racism, though Gibson’s had no history of racism and a black employee said he’d never seen any.

My posts contain some of the emails between Oberlin administrators that were introduced as evidence, and they’re pretty damning. Have a look at this post to see how hard Oberlin dug in its heels, and how intemperate they were.

All this, of course, occurred despite the students’ admission of guilt.

Originally, Gibson’s just wanted an apology, but when they got attacked by Oberlin instead, they sued the college in 2017 for “libel, slander, interference with business relationships, and interference with contracts.” They won the civil suit: the jury, obviously fed up with the College, awarded Gibson’s $11 million in compensatory damages and $33 million in punitive damages. That’s a cool $44 million—a big nut for the College. The judge later reduced the award to $25 million but tacked on another $6.5 million for legal fees. As I recall, Oberlin had to post bond for that amount if it appealed, which it did in 2020.

The Gibsons also appealed over the monetary damages and the exclusion of witnesses.  The judges affirmed the lower court ruling against Oberlin; as Wikipedia notes,

In a 3-0 decision, the panel upheld the jury verdict that Oberlin College defamed, inflicted distress, and illegally interfered with the bakery. The damages were capped by Ohio state law at $25 million in total damages, in place of the jury’s original verdict of $11.1 million in compensatory and $33.2 million in punitive damages. Oberlin was also ordered to pay $6.3 million in attorney’s fees to the bakery

Oberlin wouldn’t give up, even though it was losing students because of its behavior, and also stood to lose money as interest mounted on the amount of the fine. They appealed to the Supreme Court of Ohio, and yesterday the judgment came down.

It is below: the Supreme Court refused to hear the appeal. GIbson’s won!

The decision was 4-3, and the Gibsons were awarded $36 million. That’s a lot of dosh for a small school, and represents a lot of scholarships that could have been awarded had the chowderheads at Oberlin just apologized in the first place.

It’s all over; the Fat Lady has sung. Oberlin is an ex-reputable college, singing with the Choir Invisible. In the article below (click on screenshot), the site Legal Insurrection, which has consistently and accurately covered the whole issue, describes the swan song:

There’s not much more to report except for the statements of the victors. The first is from Lee Plakas, lead trial counsel for the Gibsons:

On behalf of the Gibson family and the trial team, Truth Still Matters, David can still overcome Goliath.

We and the Gibson family are gratified that all judges on the court of appeals and the majority of the Ohio Supreme Court recognized the rights of individuals rather than the bullying tactics of the big institutions.

And here are quotes “from the Gibsons and the trial team”:

“Oberlin tried to frame this case with claims and issues that weren’t on trial. This has never been a case about a student’s first amendment rights. Individuals’ reputations should never be sacrificed at a false altar of free speech. The Gibsons and the entire State of Ohio should appreciate that the jury, a unanimous Ninth District Court of Appeals, and a majority of the Justices on the Ohio Supreme Court recognized that the deplorable conduct of Oberlin College could not be camouflaged by misleading claims of free speech.”

“The jury recognized Oberlin College’s bullying tactics. The students admitted their misconduct, but Oberlin College could never admit that they were wrong. They presumed that they could bring the Gibsons to their knees. The power of truth has enabled the Gibson family to survive Oberlin’s onslaught.”

Legal Insurrection adds this:

We reached out to Oberlin College for comment, but have not yet received a response.

They will wait a long time!

As far as I know, this exhausts Oberlin’s options. Sadly, Allyn Gibson, the real victim, who was beaten up, didn’t live to see this day:  he died in February of this year. Here’s a photo of the Gibsons after one of their victories. Allyn is in the center with the walker. He and the bakery were much beloved by the community, which may be one reason why the punitive damages were so high.

– Photo © Bob Perkoski, http://www.Perkoski.com

The lesson for Oberlin is clear: in the words of Davy Crockett: “Be always sure you’re right — THEN GO AHEAD!” Oberlin knew that the students were guilty of shoplifting and that Gibson’s had no history or reputation for racism, but they still went after the bakery like a pack of rabid wolves. That’s because they thought, I suppose, that because one of the shoplifters was a black student, the College was on the side of the angels by attacking the bakery.

They weren’t. It’s a simply matter of the facts, and a case of a college, marinated in self-styled virtue and delusions of power, going after the Little Guys for no good reason. I savor every penny that Oberlin will have to cough up.

Oberlin, I hardly need to mention, is one of the wokest colleges in America.

h/t: Luana

Title IX set to revert to old unfair system

August 30, 2022 • 9:20 am

Title IX is a federal statute that prohibits sex-based discrimination in education or activities in schools that receive federal assistance. That includes nearly all schools, including private ones that benefit from federal grant money. Sexual harassment or a climate inimical to members of one sex are violations of Title IX, and properly so. But it’s also been used to weaken the civil rights of students accused of some violations.

On June 3 I noted, based on several reports, that the Biden administration was preparing to roll back some of the safeguards to due process for adjudicating claims of sexual assault or harassment by colleges. The standards for such adjudication were set out by the Obama administration in a 2011 “Dear colleague” letter to various government-aided colleges, and those standards weren’t fair in a number of ways I outlined in my post above. Those who were accused weren’t allowed lawyers, weren’t allowed to face or cross-examine the accuser, had no right to a live hearing or even see the evidence against them, and permitted a single individual to both investigate the accusation and decide on a verdict. That is, one college employee could be both the cops and the jury.

Worst of all, the finding of “guilty” under the Obama regulations (soon to be reinstated) were based on a “preponderance of the evidence”, i.e. a judgment call. Here are the degrees of “certainty” used in both courts and in Obama’s Title IX regulations, taken from my earlier post.

  • Conviction requires guilt “beyond a reasonable doubt”, which of course means that the bar is very high for conviction.
  • Conviction requires “clear and convincing evidence”, that is, it must be “highly probable or reasonably certain” that harassment or assault occurred. This is conventionally interpreted to mean a likelihood of 75% or higher that the assault took place.
  • Conviction requires a “preponderance of the evidence” for assault or harassment. This means that it is more likely that not (likelihood > 50 %) that the offense occurred.

Civil cases require a the third criterion: one is culpable if accused of something more likely to have happened than not. But criminal cases, of course, require criterion #1: guilt beyond a reasonable doubt. Since accusations of harassment in colleges can and have led to expulsion of students and permanent blots on their records, I’d favor either criterion #1 or #2, but certainly not criterion #3.

Yet that is what was used in the Obama regulations. In what I’ve always said is one of the few good things done by the Trump administration, Education Secretary Betsy DeVos replaced Obama’s regulations with ones I see as fairer, allowing cross-examination, lawyers, “judges” separate from investigators, and reversion to a “clear and convincing evidence” standard (#2 above).

In fact, readers agreed with me that if there is a charge of assault or harassment that is a violation of the law, it should go to the courts first, and only if the legal system finds an accused person guilty should colleges then decide what to do. Below are the results of an admittedly unscientific poll that I took of the readers. The results are shown below and were reported in another post (see also here, here and here for my other thoughts of the Title IX changes). As you see, nearly 80% of readers favored a “courts-first” approach, and then, if the accused were found guilty, the college could adjudicate. But even for those in-house judgments, readers favored the “clear and convincing” evidence standard—the DeVos standard:

 

In June, the Biden administration proposed ditching the DeVos standards and largely reverting to the Obama ones. The document with Biden’s proposed changes is here, and is 701 pages long. I’ve only skimmed it, so I’ll take the word of the Foundation for Individual Rights and Expression (FIRE), set out in a post objecting to Biden’s proposal, as to what’s in the behemoth document. FIRE doesn’t like the changes, and if their characterization is correct, I agree with them.

You can read their objections in this short post (click on the screenshot):

 

The old Obama standards led, as will the new ones, to a spate of lawsuits—over 600, according to FIRE, with 239 listed here—brought by accused and college-convicted students claiming that their civil rights had been violated by universities. Many of those suits were won by the plaintiffs. And those victories cost colleges big time.

The new Biden standards are a recipe for similar lawsuits and for huge payments by universities. Behind eroding the rights of students, that’s the second reason not to favor the proposed changes.

According to the FIRE article, the proposed changes “roll back student rights” in these ways.

  • eliminating students’ right to a live hearing;
  • eliminating the right to cross-examination;
  • weakening students’ right to active legal representation;
  • allowing a single campus bureaucrat to serve as judge and jury;
  • rejecting the Supreme Court’s definition of sexual harassment in favor of a definition that threatens free speech rights;
  • requiring colleges and universities to use the weak “preponderance of the evidence” standard to determine guilt, unless they use a higher standard for other alleged misconduct.

Fire doesn’t mention the issue of transsexual women (or men) competing against biological women (or men) in sports, probably because FIRE is concerned with free speech and expression, and sports does’t fall under that rubric. But sports participation remains an issue of concern, especially if, as I recall, the Biden construal of “gender” is independent of whether there’s been any medical intervention. It will be—and again, I may be wrong—purely a matter of which sex you identify with.

Although the ACLU and other “liberal” organizations were against the DeVos changes, we all know that the ACLU, like the Southern Poverty Law Center, now favor weakening civil rights if that helps what they see as a beleaguered minority (in this case, accusers, often seen as “survivors”). But it helps nobody to erode standards of justice that apply to everyone.

FIRE is of course against the Biden-esque changes, and has filed an objection. (There’s still time for people to weigh in on the regulations, as the article below notes.) A few excerpts from the FIRE post:

“This new proposal is a non-starter for student and faculty rights,” said FIRE Legislative and Policy Director Joe Cohn. “These regulations eliminate the right to live hearings, eliminate the right to cross-examination, weaken protections for free speech, and authorize schools to deny students the right to have the active assistance of a lawyer. That’s a recipe for constitutional violations that courts are unlikely to ignore.”

“The current Title IX regulations are one of the biggest victories for student rights in memory. But as I predicted when they went into effect in 2020, our work is not over,” said FIRE Executive Director Robert Shibley. “FIRE will fight to ensure all students are afforded the free speech and due process rights that they have every right to expect as Americans.”

. . . . The regulations proposed today, if allowed to go into effect in their current form, would undo many of the victories for student rights won in 2020. However, despite their hostility toward fair procedures, even today’s proposed regulations do not entirely roll back hard-won protections for students. Institutions are still required to provide an express presumption of innocence, which shockingly was neither required nor common until the 2020 regulations. Schools are also still required to turn over exculpatory evidence they may possess (albeit now upon request) — another long-overdue improvement made in the 2020 regulations.

Now that was in early June, but the regulations appear to be the same today. And so we have a new multi-authored article at Heterodox STEM, a group of scientists who are, well, heterodox, which in effect means “anti-woke”. Click on the screenshot to read their piece.

 

Apparently the Biden rules have converted Title IX, intended to protect the rights of both sexes in colleges, and give everyone equal opportunities, to “gender”.  That doesn’t bother me much except for those cases where the notion of “biological women” becomes important, as in sports, rape counseling, and the like. But those aren’t issues as large as that of how accusations of harassment and assault are handled.

The authors of the Heterdox STEM paper are worried about due process, of course, but also have a few concerns that I don’t think are substantive:

Freedom of Speech: The redefinition of sex in the proposed Title IX revisions would threaten the academic freedom of researchers, faculty, and students who oppose the redefinition of gender and sex. It will also make criticism of aspects of Diversity Equity and Inclusion (DEI) mandates involving gender and sex more difficult.

I doubt the new regulations can override the First Amendment, so if you criticize DEI or the change of “sex” to “gender”, or what one defines as gender, that would still be legal, though it may lead to charges of harassment if a professor expresses these opinions in the classroom. But the First Amendment has always been weaker inside classrooms than outside of them: I can espouse creationism as a private individual but cannot teach it in class. What these regulations may do is not so much change freedom of speech as to “chill” speech by normalizing ways of thought that become more difficult to oppose.

This one I think is a non-problem:

Freedom of Religion: There is a binary interpretation of sex in many religious texts such as Genesis 5:2, which reads, “Male and female created He them.”  If enacted, the proposed revisions to Title IX will force believers to affirm non-binary claims regarding gender and sex against their conscience. Therefore, Title IX would promote a violation of people’s First Amendment guarantee of freedom of religion.

I cannot imagine a case in which a student could claim that enforcement of the new guidelines could infringe on one’s freedom of religion. I know of no religion that, for example, dictates that one use certain pronouns.  And I can’t see how Title IX, in practice, could “force believers to affirm non-binary claims regarding gender and sex against their conscience.”

This also goes for another objection (there are seven in the article):

Scientific Integrity: There are only two gametes in mammals (including humans): eggs and sperm. Mammals are sexually dimorphic, and sex is binary.

Well, yes, I agree with this definition of “sex”, and the fact that sex is binary in humans with a miniscule percentage of exceptions, but I’m not sure how the Biden regulations would infringe on this. Perhaps professors who use this construal of sex in class could be taken to task, but I can’t imagine anyone saying, “Biologists define sex in this way. . .  ” could get them into trouble.

Nevertheless, there are a whole bunch of ramifications of the new regulations that are worrisome. If you want to comment on any aspect of the new document, you can go go to the Federal Register site to express your views. Comments are due by midnight on September 12.

60 Minutes Australia segment on Elizabeth Holmes and the downfall of Theranos

July 31, 2022 • 1:45 pm

Elizabeth Holmes, the founder of Theranos, was convicted of defrauding investors and will be sentenced in October. Her partner in fraud, Sunny Balwani, was also convicted of fraud, but defrauding patients as well as investors. He’ll be sentenced in November. I predict both will get jail time, though far less than the maximum (20 years for each of them).

In this new piece from 60 Minutes Australia, the scandal of the fake blood machine is reprised, but the centerpiece is two whistle-blowers who came forward to report that the Theranos machine, called “Edison”, supposedly able to diagnose 200 diseases from a tiny amount of blood, didn’t work. Both, Tyler Schultz and Erica Cheung, were scientists given access to the inner sanctum of Theranos. Both quickly discovered that Edison didn’t work and the startup was a big hoax. Eventually, worried about patient safety, both began talking to John Carreyrou, a Wall Street Journal reporter who broke the story on Holmes and Theranos and wrote the definitive book on the scam, Bad Blood. (Well worth a read!) Cheung also testified in court against Holmes and Balwani.

Schultz is involved in another way: his grandfather, ex-diplomat and businessman George Schultz, was both a patron of Holmes and an investor in Theranos. Because of Tyler’s whistleblowing, his relationship with his grandfather was damaged.

What’s new about this is that we get to hear from the whistleblowers themselves, who talked not only to Carreyrou, but to federal regulators and the prosecution. They’re admirable people whose lives were put on hold for a long time (and of course who put themselves out of business) because they valued the truth. They address several questions that have arisen in this saga, including Holmes’s defense that her fraudulent actions resulted from her being manipulated and dominated by Balwani. (Schultz and Cheung both reject that claim.)

If you’ve been following this saga, this is a nice 19-minute video that fleshes it out.

Some Walgreen’s employees refuse to sell condoms and birth-control medication because it violates their faith; company says that’s allowed by their rules, but the Supreme Court will rule this fall

July 24, 2022 • 9:15 am

Here are two cases of apparent religious discrimination exercised by employees of the drugstore chain Walgreen’s. I’d like to know what readers think about the legality of these situations, which will probably be decided this fall by the Supreme Court.

According to several sources, including NBC News and USA Today, a Walgreen’s employee in Wisconsin refused to ring up condoms at the checkout counter, and a pharmacy employee at a different Walgreen’s refused to give a women her prescribed birth-control pills—both on religious grounds. Click below to see the two stories:

Click to read about Condomgate:

Below is a tweet by Nathan Pentz, who went to a Walgreen’s in Wisconsin and was embarrassed when the cashier wouldn’t ring up some condoms:

Nathan Pentz tweeted earlier this month that his partner, Jess, went to buy condoms at a store in Hayward because she forgot her birth control. He said when she went to the checkout, the cashier said he would not ring up the condoms, because of his faith.

Pentz also tweeted the couple’s customer service response to Walgreens, which said the employee “embarrass[ed] [her] in front of other customers because of her reproductive choices.”

The thread goes on, and includes an eyewitness who saw the whole thing:

This refusal is apparently company policy:

In a statement to NBC News, a Walgreens spokesperson said its employee’s actions did not violate company policy.

But what if there is no other cashier on duty? Sometimes I go to Walgreen’s to get milk on my way to work, and at about 5:30 there is only one cashier on duty. Or what if every employee refuses services on those grounds?

Now I suppose you could say that the employee was simply exercising his religious freedom. More on that below, but NBC News notes this:

Incidents of faith-based objections in business have received more attention in recent years. In the most prominent example, the Supreme Court ruled in 2018 in favor of a cake-maker who objected to baking a cake for a gay couple, though the court did not address the larger issue of whether businesses can refuse service outright on religious grounds.

In February, the court agreed to hear the case of a web design firm in Colorado that objected to providing services for same-sex marriages. That case will be heard in October.

Pillgate: This incident is even worse because it involves duplicity on the part of a pharmacy. Click to read:

TikTok user Abigail Martin said she has been using birth control for six years. She said she called in her prescription on a Saturday, only to receive a response saying that she was out of refills.

After waiting on hold and receiving no response, Martin said she went into a Walgreens location to talk to the pharmacist.

In a recent TikTok, Martin said the woman at the pharmacy, who she said was wearing two crosses around her neck, looked Martin up and down before saying she couldn’t refill the prescription.

“I said, ‘You won’t refill it or you can’t refill it?’ And she goes, ‘You just need to call your provider,'” Martin said.

After getting confirmation from her provider and a four-day delay on her prescription, Martin said she called Walgreens again and  had her prescription filled.

The four-day delay was apparently imposed by Walgreen’s itself, who said the pills were “out of stock.”  (That was surely a lie.) The woman who refused to provide the pills apparently does this regularly.

Here’s Martin’s TikTok describing the incident (she has nearly a million followers). Do watch it (she begins to break down at the end—the wages of discrimination):

@abigailmartiin

i am so beyond pissed at our country right now. #roevwade #prochoice #womensrights #birthcontrol #vanlife

♬ original sound – Abigail Martin

Below is Walgreen’s policy, which, as you see, allows religious people to refuse to sell certain items BUT the religious person must find someone immediately to sell the item. Pentz was rung up by a manager, but Martin wasn’t even informed of the company policy.  They should at least force the woman wearing the crosses to tell the customer that they will find someone to fill the prescription. And what is Walgreen’s doing delaying the prescription for four days and lying about it being “out of stock”? Company policy should not allow lying.

Now my question, and the question to the readers is “Is this kind of religious-based discrimination against customers/items legal”? After all, the First Amendment guarantees one the right to practice religious freedom. But that is not an unlimited permission: teachers, for example, are not allowed to pray in class because it violates the religious freedom of those who hear it, who might feel coerced. And there are “public accommodation laws”, as in Colorado, which forbids businesses serving the public to discriminate against customers, even on religious grounds.

That Colorado law was the reason why the Supreme Court had to decide a related case, when bakers at the Masterpiece Cake Company in Lakewood, Colorado, refused to bake a wedding cake in 2012 for a legally married same-sex couple, Charlie Craig and David Mullins.

The couple filed a lawsuit and the state court decided in favor of Craig and Mullins. As Wikipedia notes, “the cake shop was ordered not only to provide cakes to same-sex marriages, but to ‘change its company policies, provide ‘comprehensive staff training’ regarding public accommodations discrimination, and provide quarterly reports for the next two years regarding steps it has taken to come into compliance and whether it has turned away any prospective customers.”

Masterpiece appealed, and the appellate court upheld the state court decision: there could be no discrimination against customers, even though the bakery claimed that not making any wedding cakes, which they decided to do, cost them 40% of their business.

The next step was an appeal to the Supreme Court, which ruled, in the case of Masterpiece Cakeshop v. Colorado Civil Rights Commission (the vote was 7-2  with Ginsburg and Sotomayor dissenting), to uphold Masterpiece and strike down the appellate court decision. But the grounds, which did include First Amendment considerations, were not that the bakery discriminated against the customers’ homosexuality. Rather, they ruled that the Colorado Civil Rights Commission itself had shown hostility towards religion. I quote from the court’s majority opinion; bolding is mine:

The Commission’s hostility was inconsistent with the First Amendment’s guarantee that our laws be applied in a manner that is neutral toward religion. Phillips was entitled to a neutral decisionmaker who would give full and fair consideration to his religious objection as he sought to assert it in all of the circumstances in which this case was presented, considered, and decided. In this case the adjudication concerned a context that may well be different going forward in the respects noted above. However later cases raising these or similar concerns are resolved in the future, for these reasons the rulings of the Commission and of the state court that enforced the Commission’s order must be invalidated.

The Commission was deemed “not neutral”, ergo a violation of the First Amendment.

Note that the court did not rule whether an individual business serving the public (including Walgreen’s in the cases above) could discriminate among customers based on the faith of the business’s employees. That, said the court, would be left to a future decision.

And that decision will be made this fall, almost surely in favor of allowing businesses to discriminate on religious grounds. Here’s the case that will be decided this fall:

The Supreme Court granted certiorari to 303 Creative LLC v. Elenis in February 2022, which again dealt with Colorado’s anti-discrimination laws as they apply to public businesses. The case concerns a Christian web designer who seeks to make wedding announcement websites for heterosexual couples only. She fears punishment under Colorado’s anti-discrimination law and thus aims to block the law as a violation of her First Amendment rights.

Does anybody doubt that the highly religious Supreme Court will allow this kind of discrimination? And in the case of Walgreen’s or other businesses, it could well rule that if Walgreen’s owner was religious, the entire company would not have to sell birth control to anyone based on religious grounds. They wouldn’t of course, as the public would simply boycott the company to death (there are already calls to boycott Walgreen’s). But this is possible for smaller businesses, and wasn’t settled in the Masterpiece case.

But suppose, for instance, that one’s “religion” allowed other forms of discrimination, say against sex or ethnicity? That would not be allowed under any construal of the Constitution, as it would constitute illegal practice. Why, then, would discrimination on the grounds of religion be permissible? Would restaurants be able to refuse to serve gay customers?

My own view is that if you serve the public, you have to serve them equally, and public good takes precedence over the religious beliefs of a business owner or employee. (Remember, we have a conflict between two constitutional “rights” here.)

As to whether a single employee, as in the condom case above, should be able to decline service but immediately get someone in the business to provide that service, I don’t know. There is no discrimination by the business, but by an employee, and in the end there was no discrimination in sales. Still, can’t a company require its employees, as a condition of employment, to serve all customers equally? Can it fire someone who doesn’t? Or does that requirement violate the First Aendment

These are issues that are legally unresolved, but will be this fall. And, I’m afraid, most of us won’t be happy with the decision.

The infamous Masterpiece Cake Shop:

h/t: Ginger K.