The Allegator

"I do not deny the allegation, I deny the allegator." – Jesse Jackson

Home Archives for Law

Religious Discrimination Lawsuits

Encyclopedias define religious discrimination as ‘valuing or treating a person or group differently because of what they do or do not believe.‘ That seems like a pretty fair and broad definition, but I think there is a great deal of misunderstanding out there as to what this means.

Most claims of religious discrimination are claims of violation of the first amendment statement that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof”. I think the first thing that is important to understand here is that the government doesn’t give us our rights, it just hasn’t managed to take all of them away yet. The Constitution isn’t a document granting us rights, it’s a document restricting the actions of government. The thing to note here is that it isn’t the job of Congress to prevent discrimination, but rather to not cause it.

Claims of religious discrimination range from legitimate to ridiculous, and resolving them is difficult in the sense that the ones seemingly being wronged are often the ones asking for the discrimination. Some examples that are already happening:

An Orthodox Jewish couple in Bournemouth have issued a county court writ claiming religious discrimination. Why? This couple contends that they are being held hostage on Shabbat because walking out their door triggers their neighbor’s motion light, and thus their prohibition of ‘making fire’, one of many things they aren’t allowed to do on the Sabbath. Lets say Jehovah’s Witnesses were afraid of motion lights too. Would putting outdoor motion lighting on your front door be a hate crime? This  highlights the problem of the government getting involved in private affairs. What happens when one religion requires motion lights on their door while another forbids it? There is no way to please everyone.

What I find disturbing about this kind of case is that looking at the above definition for religious discrimination, it is the couple who is doing the discriminating by demanding special treatment because of their beliefs. No one else can sue their neighbors for having motion lighting unless they also subscribe to this belief.

Another example is that of the burkha. A girl in Florida tried to get her drivers license photo taken with her burkha on. Obviously the state shot this down. The same goes for being identified before boarding airplanes. It is an interesting dilemma because, while it is the burkha wearers who want the special treatment, denying it is essentially preventing Islamic women from travelling. I would also note that if you are an identical twin, they don’t force you to come up with additional identification to prove you aren’t your sibling. An airline could hire a woman to take the burkha wearers into a private room for identification, but if the airline were small enough to only have one ID checker, then they would be forced to be discriminatory in their hiring practices by only hiring a woman. It is the FAA that requires such checks, so it is a government matter, just as it would be if they were carded at a liquor store. The ACLU thinks it is disallowed because of religious discrimination caused by 9-11, rather than the obvious security reasons of identifying passengers. I’d challenge them to try to go buy some liquor one night wearing a ski mask and see how far they get.

The intent of the constitution as it relates to religious discrimination should be interpreted as a sort of ‘don’t ask, don’t tell’ policy. Those in government should not commit religious acts while on the job, or add them or their terminology into policy, and the government shouldn’t take religion into account when making decisions. Where the lines of discrimination law should be drawn for businesses and individuals, I admit I don’t know. Anyone have any opinions?

Sonia Sotomayor, and Affirmative Action

Sonia Sotomayor

A few weeks back when Obama had yet to publicly pick a nominee for the Supreme court, CNN put up a picture on their front page of a large grid of faces, each a likely choice for the nomination. In a fraction of a second, before I even recognized any of their identities, I picked Sotomayor as the obvious political choice.  I find this troubling. It’s true that she could be the best of the bunch, but I think that is improbable for reasons I’ll go into below.

Pat Buchanan has repeatedly referred to Sotomayor as an affirmative action pick. While I can see how he would think that, I think it is more complicated than that. Obama got two thirds of the Hispanic vote, and 56% of women. He might be trying to directly appeal to his base. As much as it may have been one of his greatest obstacles at many points on the path, I’m of the belief that Obama’s ethnicity was a positive for him in the final presidential vote. He could arguably claim that he has a mandate to shake up the old white guy club that is Washington D.C.

Obama has both the Constitutional background and the advisers to tell him the history and expectations connected with a Supreme Court nomination. There has been something of a tradition of ‘reserved seats’ on the courts for various groups, such as Catholics (Catholics now make up two thirds of the court). I don’t like such traditions. I think the appointment should go to the most qualified individual, based on impartiality, and an understanding of the Constitution and our legal system. I don’t think we should legislate this, but I do think a strong legal background is a plus. I think as much as possible, the government should be blind to race, gender, and religion.

“I would hope that a wise Latina woman with the richness of her experiences would, more often than not, reach a better conclusion than a white male who hasn’t lived that life.” -Sonia Sotomayor

The above quote doesn’t come from anyone I’d confirm for for such a position. I’ve yet to hear anyone say that they think a white guy making the inverse statement would have any chance of confirmation.

I’ve heard the Obama administration’s statement that if Sotomayor were to make the statement again she would have used different wording. This wasn’t some offhand comment she made after a few drinks. This was in a published speech for a law review, specifically Law Raza Law Review, a play on La Raza,  or ‘the race’, a term of Hispanic pride. She is a member of The National Council of La Raza, a group dedicated to the advancement of Hispanics. She has used the above quote in many speeches and many places over a nine year period.

I’ve heard it suggested that the quote was just taken out of context. After reading the context it was in, I found it to be even worse. I find the quote inexcusable, and I see three possibilities for explaining it:

  1. It was poorly stated and not what she meant, in which case she is unqualified for a position in which all of her statements will be picked over for decades or centuries to come by lawyers and judges deciding people’s futures.
  2. She said it because she was pandering to Law Raza, in which case she doesn’t have the ethics for the job.
  3. She believes what she said, in which case she is guilty of ethnic discrimination, and doesn’t have the impartiality to be any kind of judge, much less on the Supreme Court.

The reason Barack gave for voting against Roberts was the he had the impression that Roberts most often ruled for the strong over the weak. This is a statement that brings me to the core of my beliefs about affirmative action. If Hispanics tend to be poor, should we give Hispanics some help? No. If you want to help the poor, help the poor, not the Hispanic. To do otherwise isn’t fair to the poor who aren’t singled out by their ethnicity, or to those Hispanics who are already successful, and it breeds resentment and the impression that people gained their positions through something other than their own merit. If Sotomayor is confirmed without addressing that quote, all of her decisions on discrimination cases will come with an asterisk.

As for her past work, Sotomayor has twice ruled on Second Amendment cases as if it did not exist.

I’ll be interested to hear what she has to say for herself in the confirmation hearings. The Democrats have control and it is expected Sotomayor will be confirmed. The Republicans don’t have the cojones to vote against a swing demographic, but who knows, it could yet get ugly enough to be contested.

Update: Pat Buchanan has an interesting post up referencing Sonia Sotomayor’s statements on affirmative action and how it affected her carreer.

Israel has Nukes

The Department of Defense has confirmed what has long been known by most, but kept officially secret; Israel has nukes. The report was cleared for release after Obama was elected, but before he took power. It  refers to “a growing arc of nuclear powers running from Israel in the west through an emerging Iran to Pakistan, India, and on to China, North Korea, and Russia in the east.”

Israel is estimated to have several hundred nuclear warheads, placing it ahead of the UK, and likely with the third most warheads of any nation in the world. The purpose of these warheads is obvious. In the event of an organized arab attack, Israel would have the option of massive nuclear retaliation. I don’t think we can really say that this has ‘kept the peace’, but it certainly has kept Israel on  the map. I would like to stress that there is no such thing as a defensive weapon. If a nation were to have an impenetrable forcefield, it would allow them to put all of their other forces on offense without worry, which, come to think of it, seems to be not far from what has happened.

According to Wikipedia, “The Foreign Assistance Act of 1961 was amended by the Symington Amendment (Section 669 of the FAA) in 1976. It banned U.S. economic, and military assistance, and export credits to countries that deliver or receive, acquire or transfer nuclear enrichment technology when they do not comply with IAEA regulations and inspections. “ This would seem to be a message from the U.S. to Israel that they are going to have to start following the rules if they want our continued support. This is no small matter, since Israel is in violation of quite a lot of U.N. resolutions, hides their arsenal from the IAEA, and has already been accused of using phosphorus and cluster bombs in civilian areas.

Jon Stewart vs Cramer

Something constructive has come of the Santelli rant after all, albeit through a rather circuitous route. The above video is the meatier portion of the whole escapade thus far. After being taunted by NBC for just being a comedian, taking things out of context, and making funny faces, Jon Stewart had Cramer on his show and conducted the interview in a more serious and constructive manner than you will see any of the so-called journalists who leveled these accusations do themselves. Cramer was friendly and apologetic, so this must have been a hard thing to do to the man, but Stewart met any evasions with career crushing force. There have been responses from most of the major media and the White House.

CNN has a poll up that asks readers whether they see this interview as being a comic diversion or serious business. Comedy is winning 52-48. This shows a fundamental lack of understanding of what went down. A bit of background for those of you not well versed in investing; a short is when a broker sells you an investment they don’t own because they think it will go down. They intend to take your money, and when the stock goes down and you wish to sell, they just give you some of your money back and pocket the rest. Kind of like a Ponzi scheme, in the sense that if the stock market booms and everyone wants their money, we see a whole new scandal. This is legal. Some of what he was admitting to doing was not. Listen carefully to the clips Stewart plays, rewind if you have to, but make sure you understand what Cramer was admitting to. He isn’t a rogue bad apple. This is business as usual and whole system is full of rot. The government is rotten, the banks are rotten, as are the analysts, the brokers, the corporations, the media, and the investors. This isn’t something we can just make more rules against. This isn’t a failure of the free market. The people who make the rules are the same people breaking them. What we need is simple transparency. Jon Stewart has given us a taste.

The Rule of Rules and the Ethical Nature of Autonomy

In this TED Talk, Barry Schwartz speaks on a society gone over the edge with rules and regulations, and the ethical nature of autonomy.

It is easy to fall into the habit of seeing the populace as a conglomerate of ignorant sheep, and there is some truth to it. As a group we consistently make poor decisions, but the group is made up of individuals. They have their failings, but most of them get up every morning and go to work. When faced with decisions in their daily lives, they tend to make good ones.  They share your outrage over the state of the system.

It isn’t until they are corralled and herded through all the little reverberating insurance policies against litigation that most of their decisions tend to be bad ones. We haven’t added rules over the years because people have become less upstanding, people have become less upstanding because society has increasingly suppressed their spirit of ingenuity and drive with rules designed to take all of the rewards in order to ensure that no risks are taken. We now reap what we have sown. Fear of innovation. Bloated government, a litigious populace, listless children, high taxes, and low-flow toilets.

Update: This unfortunate trend has only accelerated in recent years. It’s gotten to where the insurance companies have themselves become regulators, as their coverage is now mandated, but they still write most of the terms and conditions, for both doctor and patient. Doctors are now told what they will reimbursed for in a way that has reduced their doctor patient relationship to a checklist that will keep them in business. Patients are told who they can see and which treatments will be covered, all while spending more money, on average, than before the insurance.