Le Monde reports (French language – paid archive) that under a new law it is illegal, in Tibet, to reincarnate without official permission. As of September 1st, the government will require monasteries claiming to have reincarnated lamas to apply for permission from the Department of Religious Affairs.
Archive for the ‘Law’ Category
Do you have your reincarnation permit?
Wednesday, August 29th, 2007Hammer v. University of Michigan
Wednesday, August 29th, 2007FOR IMMEDIATE RELEASE
Contact: Michelle Fernandez, OUTlaws president: michellefernandez@wayne.edu
Peter Hammer, OUTlaws faculty sponsor: phammer@wayne.edu
DETROIT – Wayne State University OUTlaws to sponsor a website posting court documents in Hammer v. University of Michigan – http://wayneoutlaws.org/hammer_v_umich
The Wayne State University OUTlaws exists to promote an inclusive, open, and supportive community at the Law School through education, collaboration, advocacy, and social programming.
In Hammer v. University of Michigan, Peter Hammer charges the University of Michigan Law School with anti-gay discrimination. Professor Hammer is the first openly gay professor to be considered for tenure at the University of Michigan Law School, and the first man in the history of that institution to be denied tenure. By a secret vote, a minority of the Law School faculty blocked his promotion.
The Complaint alleges a simple “breach of contract” theory, predicated on representations of non-discrimination during pre-employment negotiations, as well as University policies and by-laws prohibiting discrimination on the basis of sexual-orientation. Rather than building an affirmative case that no discrimination took place, the University’s initial stance was to maintain that its by-laws and non-discrimination policies had no legal meaning and created no rights. The same University that had defended the value of diversity in the U.S. Supreme Court was now vigorously defending its legal right to discriminate on whatever basis it wanted.
The Law School has filed two Motions for Summary Disposition. Each of these was denied. The trial court ruled that Hammer had established a legitimate claim of discrimination and that a trial on the merits was warranted. The Law School sought leave for an interlocutory appeal, only to have its application vacated as improvidently granted. The Law School has now been afforded an unprecedented third opportunity to seek summary disposition. The University brief is due September 15, 2007.
By posting the publically filed court documents in Hammer v. University of Michigan, The Wayne OUTlaws seek to highlight the often hidden face of LGBT discrimination in higher education. This litigation is also an important study of how private law can be used to combat LGBT discrimination.
Visit http://wayneoutlaws.org/hammer_v_umich to read more and to post your comments.
University of Michigan Footbaths Cause Uproar
Thursday, August 9th, 2007The University of Michigan-Dearborn (UMD) is installing footbaths in a few campus restrooms. According to this NYTimes article the need for footbaths became evident when campus bathrooms sinks started being pulled away from the walls and puddles of water started appearing on the floor. Muslim students were using the sinks to wash their feet before prayers.
The footbaths have caused a minor uproar with some arguing the footbaths are giving a particular faith favored treatment: a Detroit News article on the backlash and a Fox News interview on the footbaths. Ultra-conservative lawyer-blogger Debbie Schlussel was quoted in the NYTimes article and also weighed in on her blog: she posted a couple new logos for “U-M Dearbornistan”.
Are the footbaths inappropriate? We get two different perspectives from the two civil liberties groups the NYTimes spoke with:
Hal Downs, president of the Michigan chapter of Americans United for Separation of Church and State, said, “The university claims it’s available for Western students as well, but, traditionally, Western students don’t wash their feet five times day.”
“They’re building a structure for a particular religious tradition,” Mr. Downs added, “and the Constitution says the government isn’t supposed to endorse a particular religion.”
The American Civil Liberties Union says the footbath issue is complex.
“Our policy is to object whenever public funds are spent on any brick and mortar component of religion,” said Kary Moss, director of the Michigan Civil Liberties Union. “What makes this different, though, is that the footbaths themselves can be used by anyone, don’t have any symbolic value and are not stylized in a religious way. They’re in a regular restroom, and could be just as useful to a janitor filling up buckets, or someone coming off the basketball court, as to Muslim students.”
Then, too, Ms. Moss said, the health and safety component is not normally part of religious accommodation cases.
Abortion: if illegal what penalty for the women?
Tuesday, July 31st, 2007Watch this short documentary on YouTube and you’ll see anti-abortion protesters struggle with the question: Assuming abortion is illegal, should there be a penalty for women who get abortions illegally? None of them seem to have thought of this before. When pressed, many of the anti-abortion protesters want to leave the women’s responsibility for taking a human life between the woman and god. Some thought counseling was the way to go. Only one, clearly wracked by conflict, proposed jail time. Yet even that person couldn’t come up with an amount of jail time to pin on the hypothetical illegal abortion receiving women.
Anna Quindlen, writing for NewsWeek, reports (via Broadsheet) :
A new public-policy group called the National Institute for Reproductive Health wants to take this contradiction and make it the centerpiece of a national conversation, along with a slogan that stops people in their tracks: how much time should she do? If the Supreme Court decides abortion is not protected by a constitutional guarantee of privacy, the issue will revert to the states. If it goes to the states, some, perhaps many, will ban abortion. If abortion is made a crime, then surely the woman who has one is a criminal. But, boy, do the doctrinaire suddenly turn squirrelly at the prospect of throwing women in jail.
“They never connect the dots,” says Jill June, president of Planned Parenthood of Greater Iowa. But her organization urged voters to do just that in the last gubernatorial election, in which the Republican contender believed abortion should be illegal even in cases of rape and incest. “We wanted him to tell the women of Iowa exactly how much time he expected them to serve in jail if they had an abortion,” June recalled. Chet Culver, the Democrat who unabashedly favors legal abortion, won that race, proving that choice can be a winning issue if you force people to stop evading the hard facts. “How have we come this far in the debate and been oblivious to the logical ramifications of making abortion illegal?” June says.
As much as I love to see the anti-abortion protesters squirm and applaud efforts to highlight the ramifications of making abortion illegal, I wonder if highlighting this contradiction will be effective. Quindlen supposes the escape for anti-abortionists is to ignore or infantilize “women, turning them into ‘victims’ of their own free will. State statutes that propose punishing only a physician suggest the woman was merely some addled bystander who happened to find herself in the wrong stirrups at the wrong time.” The history of contraception and abortion illustrates that people who have anti-abortion and anti-contraception sentiments are often quite comfortable with the paternalism required to take the escape route Quindlen envisions.
human rights lead to dehumanizing crimes?
Tuesday, July 31st, 2007TLS recently reviewed ((Sylvana Tomaselli, “Where rights go wrong,” TLS, July 20 2007, 23)) of Inventing Human Rights by Lynn Hunt. The following are Hunt’s words as quoted in the review:
The very notion of human rights inadvertently opened the door to more virulent forms of sexism, racism, and anti-Semitism as the universalism of rights [led] theorists [to develop] more substantive theories of difference.
. . .
The utterly dehumanizing crimes of the twentieth century only became conceivable once everyone could claim to be an equal member of the human family.
I think Hunt is wrong. In the latter claim, I imagine, though having not read the book I can’t be sure, Hunt refers to the mechanized destruction of humanity we see in the twentieth century: Hitler, Stalin, etc. However, I do not think new forms of rights talk and corresponding substantive theories of difference led to the dehumanizing crimes. Rather industrialization, mechanization and most importantly automation. For example, IBM’s collaboration with the Third Rich was critical to the Nazi extermination efforts: “A key factor in the Holocaust in Poland was IBM technology provided directly through a special wartime Polish subsidiary reporting to IBM New York, mainly to its headquarters at 590 Madison Avenue. And that’s how the trains to Auschwitz ran on time.” ((Edwin Black, “Final Solutions: How IBM Helped Automate the Nazi Death Machine in Poland,” The Village Voice March 27 – April 2, 2002.))
Neither does my reading into the history of nativism or the history of anti-semitism jive with Hunt’s first assertion. In any case, the TLS review thrashed the book so I don’t plan on buying it.
A Different View on Sex Offenders in England
Saturday, July 28th, 2007I was surprised by this Times story. There seems to be much less sex offender paranoia in the UK if the attitudes evinced in this article are representative:
Convicted sex offenders should not be prevented from using social networking sites such as MySpace, Scotland Yard said yesterday.
. . .
The force said that it had no plans to share information about sex offenders with sites such as MySpace and Bebo with a view to having the profiles of such people taken down. “Just because you’re a convicted offender doesn’t mean you’re still offending,” a spokeswoman said. “Why would we pursue them in this way? These are people who have served their time.”
Scotland Yard’s position was backed up by the Home Office, which said it was “not intending to disclose lists of registered sex offenders to individuals or organisations not directly at risk or concerned with law enforcement”.
young sex offenders
Saturday, July 28th, 2007The most recent New York Times magazine has a story about young “sex offenders” and Salon’s Broadsheet brought to my attention a news story, from earlier this week, about a couple of butt swatting boys in Oregon being sent to juvie for 5 days and perhaps being required to register as sex offenders: for life. Think about that for a moment. Sex offender registries, even if they include the statutory offense, don’t provide enough context to discriminate the rambunctious from the criminal. This is especially so when prosecutors are zealous and the defendants are children.
The Oregon boys, for example, were initially charged with multiple counts of Sexual Abuse in the First Degree (ORS 163.427), the class B felony of sexual contact by forcible compulsion against a person less than 14 years of age. They were also charged with Sexual Abuse in the Third Degree (ORS 163.415), the class A misdemeanor of subjecting another person to sexual contact without consent (a victim under 18 being incapable of consent). Both charges hinge on sexual contact, the difference between the felony and the misdemeanor is the existence of forcible compulsion. It is the definition of sexual contact that illustrates the zealous overreaching of the prosecutor in this case. “Sexual contact” is defined by ORS 163.305(6) as “any touching of the sexual or other intimate parts of a person or causing such person to touch the sexual or other intimate parts of the actor for the purpose of arousing or gratifying the sexual desire of either party.” (Emphasis mine.) I think it a stretch, from facts of this case, to conclude the actions were for the purpose of arousing or gratifying the sexual desire of either party.
The police reports (here and here) indicate that both boys and girls engaged in butt swatting. In subsequent news stories, children at the school describe how the butt swatting was a customary friendly greeting. And testimony of two girls in court indicates that the police and school administrators pressured them to characterize the activity more severely the the girls would have otherwise. The actions were awkward, and perhaps inappropriate, adolescent attempts at affectionate human contact and horsing around.
Under mounting pressure the prosecutor dropped the felony charges and offered a plea bargain which would have allowed the boys to avoid sex offender registration. The boys rejected the offer and intend to fight it out in court. The district attorney argues, “What’s been lost in this whole thing are the victims, who have been pressured enormously by these boys’ friends.” ((http://abcnews.go.com/TheLaw/Story?id=3406214&page=3)) Even if it’s true the girls were pressured — and the police reports, court transcript, and news interviews cast significant doubt — this isn’t a sexual crime. Indeed, the only way to criminalize the conduct is to sexualize the touching. Otherwise, the touching, which didn’t cause physical injury, wouldn’t be criminal under Oregon law (ORS 163.160, 163.165, 163.175,
The arrests, critics said, reflect a trend toward criminalizing adolescent sexual behavior. Between 1998 and 2002, juvenile arrests for sex offenses other than rape or prostitution rose 9 percent — the only kind of juvenile arrests that rose during that time, according to the Bureau of Justice Statistics. “More and more, they are criminalizing normal adolescent or preadolescent behavior,” said Chuck Aron, co-chairman of the National Association of Criminal Defense Lawyers juvenile justice committee. ((http://abcnews.go.com/TheLaw/Story?id=3406214&page=2))
Why seek to criminalize the conduct in this case? More generally, why is there an increase in criminalization of adolescent sexuality? I welcome any thoughts on this. I’m doing a little historical research on this issue and I’ll post my conclusions later this weekend.
Immigrants Voting?
Friday, June 29th, 2007The Christian Science Monitor reported last week that some cities are pushing to allow legal immigrants to vote in local elections. “Six Maryland communities already allow the practice, Chicago lets legal immigrants vote for school board members.” However other attempts to open local elections to legal immigrants were blocked by state lawmakers. Now, the Monitor reports, “the movement is gaining traction again, mainly in liberal-leaning communities.” Non-citizen voting may seem odd but citizenship is just one of many possible prerequisites for voting and there is no necessary reason to keep non-citizens from voting. Historically, in the U.S., there were several more important prerequisites: race, property ownership, sex, and age.
Those prerequisites have, at least formally, been abrogated by subsequent amendments to the Constitution. The Fourteenth Amendment opened voting to all males of 21 years which implicitly striped property and race prerequisites (for men). The Fifteenth Amendment explicitly striped race prerequisites from voting because the implicit action of the Fourteenth Amendment wasn’t sufficient. The Nineteenth Amendment opened voting to women. The Twenty-sixth Amendment set the voting age at 18. In each case these were negative commands to the states. They did not define who could vote rather they specified certain qualifications could not be used to limit the right to vote. The states were at all times free to open voting wider than what the Constitution defined. For example, a state could allow all people 13 and older to vote. So states now, if they wish, can allow non-citizens to vote.
Indeed in other countries non-citizen voting in local elections is sometimes found. In England, for example, Irish citizens are allowed to vote in certain local English elections while living in England. Thus my English Legal History professor, who has both U.S. and Irish citizenship and owns a home in Southern England (I can’t recall the town), votes in her English town’s local elections. (She noted she could also get a third passport because she is Jewish too.)
Should non-citizens be allowed to vote? I don’t know. But let’s not pretend that citizenship is the only (or even the most important) criteria.
Lesbian/Gay Law Notes – May 2006
Monday, May 15th, 2006The May 2006 edition of the Lesbian/Gay Law Notes is available in PDF here.
Technorati Tags: Current Affairs, Law
No Neutral Ground
Friday, May 12th, 2006Last week I involved myself in a debate over anti-bias laws on the Independent Gay Forum. The bias law issue arose when the proprietor of a film and video processing store announced a policy of refusing to duplicate material deemed contrary to the owners Christian values. This policy announcement came after the owner refused to duplicate a couple of gay video tapes. (I believe they were documentaries produced in the 1980s about pride parades.) The Arlington County (Virginia), the location of the film store, Human Rights Commission held a public hearing and investigated the store owner (Mr. Bono) on charges that he discriminated against the woman seeking tape duplication in violation of the county’s anti-bias law. Predictably, this caused a conservative and libertarian uproar. The title of the Independent Gay Forum post is “Liberal Authoritarianism.” Conservative and libertarian responses to bias-laws objected to the way such laws quash individual autonomy and force people, like the store owner, to sublimate their values. But, as I pointed out in a comment, that view incorrectly assumes individual freedom and autonomy as the neutral baseline from which bias laws are a departure. To wit:
If you side against anti-discrimination laws, the government grants the shopkeeper the liberty (right) to choose any customer (discriminate) and the government denies the customer a remedy. Or to put it another way, the government places a duty upon the customer to respect the shopkeeper’s liberty (discriminatory choices). The government forces the customer to have the thick skin [the thick skin idea comes from those who argued one should accept discriminatory practices, i.e., have a thick skin]. The lack of remedy (or the existence of the duty, if you prefer) may not matter that much if there are other choices, but suppose we are dealing with the only shop nearby that does X. It may be an onerous duty for the customer to bear. And is it fair to discount the psychological impact of discrimination on the customer? After all, if we are concerned about the result on the mind of the shopkeeper for having to sublimate his values why not also consider the mind of the customer? My inclination is to say the result of discrimination on the customer shouldn’t be completely ignored but I don’t know for how much it should count.
If you side the other way, in favor of the anti-discrimination law, you flip the positions. The government places the duty to accept all comers on the shopkeeper while the customer has the liberty to choose any shopkeeper. Here the government forces the shopkeeper to have the thick skin.
Enter the new book by Dean Baker, The Conservative Nanny State: How the Wealthy Use the Government to Stay Rich and Get Richer.
From the book’s blurb:
Economist Dean Baker debunks the myth that conservatives favor the market over government intervention. In fact, conservatives rely on a range of “nanny state” policies that ensure the rich get richer while leaving most Americans worse off. It’s time for the rules to change. Sound economic policy should harness the market in ways that produce desirable social outcomes – decent wages, good jobs and affordable health care.
It appears Baker makes the case with economic policy that I was attempting, in my comment about bias-law choices, to make for law generally. Namely, there is no neutral ground. Conservative economic policy choices are not neutral. A free market is not a natural entity. Rather, it is the result of choices to favor one set of actors over another. You can order the book in paperback from the book’s website or download the book in electronic PDF format for free here.