Big Jolly Politics

politics in Harris County and Texas

Duane Buck Supreme Court Decision

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On Wednesday, the Supreme Court of the United States held that Duane Buck’s death sentence is invalid because defendant’s expert witness testified that Mr. Buck was more likely to be violent because he is black.

Buck was convicted of capital murder in 1996 and was sentenced to death in 1997. Buck’s attorney sponsored the testimony of Walter Quijano, a psychologist. Prior to trial, Quijano wrote, “Race. Black. Increased probability.” In 2000, Texas Attorney General John Cornyn said that asserting a connection between race and dangerousness was wrong and unconstitutional.

Now, the Buck case returns to Harris County for resentencing.

Where's the Hate? Why the LGBT movement is the problem.

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The homosexual and transgender strife across the country has been cast as a civil rights struggle. So let’s take a look at how this campaign compares on the merits to the great civil rights struggles of the 20th century. From there, we can draw up intelligent argumentation beyond the flippant cries of homophobia and hatred that comes from those promoting a change in the status quo.

The Leadership Conference has compiled an excellent list of important civil rights cases. In looking at the body of case law we can see some patterns of law that are applicable to LGBT issues. First, sexual orientation isn’t protected like race is. Second, protections are granted in instances where animus is the motivating factor. Third, when the cry for rights moves beyond combatting animus and seeks special rights the cry is rejected.

Sex (gender) is protected under the rarely used intermediate scrutiny level of protection. However, the SCOTUS has been reluctant to apply even intermediate scrutiny to sexual orientation cases. Romer v Evans was based on no legitimate government interest – the standard for a rational relationship test. Lawrence v Texas was decided on privacy grounds, not sexual orientation. Obergefell v Hodges was based on the right to marry. Although both of these latter decisions were specifically addressing homosexual activity they were decided on the underlying right involved, not the potential animus towards homosexuals. Although the results were both favorable towards homosexuals, the reasoning the SCOTUS uses doesn’t suggest that sexual orientation is judged by anything other than the rational relationship test.

The transgender argument has a somewhat different analysis. Here, the argument isn’t that sexual orientation is at issue. The argument is that gender identity should be protected the same way as gender is. If that were the case, intermediate scrutiny would be the standard of review. However, getting there is quite a stretch. The first problem is that it seeks protections greater than what are being allowed for homosexual activity. Second, even if a person identifies as one of the opposite gender, the underlying biological gender is still in place. This brings us to the consideration of animus versus special privilege.

The difficulty in giving any serious consideration to allowing transgendered individuals to use the bathroom contrary to their biological gender is that they are seeking special privileges, not combatting animus. Guys go to the guys restroom, it doesn’t matter if they are straight or homosexual. So transgendered individuals aren’t seeking to be treated equally, even with homosexuals. They are seeking an accommodation. Not only is it seeking an accommodation, but it’s insisting on the accommodation of choice rather than an unobjectionable one. A unisex bathroom solves the issue.

Traditionally, protection lies to combat animus. Loving v Virginia struck down a ban on interracial marriages. Shelley v Karemer struck down racially restrictive property covenants. City of Mobile v Bolden required proof that changes were “actually motivated by discriminatory intent” to establish a voting rights act violation. The list could go on and on.

When the dispute is one seeking special privilege the Court rules against those seeking special privilege. Wygant v Jackson Board of Education prohibited the firing of more seniority white workers to protect the jobs of less seniority black workers. City of Richmond v Croson struck down a minority set aside. Shaw v Reno struck down a gerrymandered district designed to elect a minority to office.

Simply put, where’s the hate? The law protects against animus, but does not go so far as to require special privileges. When viewed from this legal prism, the LGBT movement is the problem. The law has very quickly removed animus from being allowed. The new battle lines aren’t one drawn on animus against LGBT, but are drawn on ones where LGBT is demanding special treatment. Can bakers refuse to bake a cake for a party to celebrate terrorist acts? Sure. Why then must they be forced to bake a wedding cake for a homosexual marriage if it’s contrary to deeply held religious beliefs? It’s animus on the part of LGBT to require the Christian bakers do so despite other bakers willing and available.

What about the transgender bathroom issue? Initially, a unisex bathroom would resolve the issue. But let’s suppose that’s not a possibility. The issue then becomes, where’s the animus? It isn’t towards transgendered individuals. It’s towards fear of attack and harassment. It’s not just about pedophilia. It’s also about letting children be children and not have to explain why there’s a guy in the girls restroom. It’s about the rape victim not being forced to share the restroom with a guy. What makes the transgendered individual’s comfort level more important than the rape victim’s comfort level? One has to give. The rape victim is conforming to the norms of society while the transgendered individual is seeking special privilege.

In the end, LGBT issues are about animus. Where’s the hate? Historically, whoever is displaying animus loses. Right now hate is being pushed by LGBT towards those who won’t cave to their demands for special privileges. As society, it’s time to stand up and expose the arguments for what they are – hate against those who won’t give special privileges. We shouldn’t tolerate hate directed against LGBT. We equally should not tolerate hate from LGBT towards those who disagree with them.

Another Interesting Week

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As I approach the end of some weeks, I often marvel at what has occurred during just that short passage of time.  This week was one of those weeks.  From the four major opinions issued by the U.S. Supreme Court, to Obama’s arrogant and sweeping plan to control the climate by fiat, to the late-hour filibuster in the Texas Senate and call for a second Special Session, and finally to the local announcements that will make political life in Senate District 7 very interesting over the next year, this week had a little something for every conservative to cheer and jeer.

I am not going to devote any time in this post to the state and local political developments; I’ll leave it to others to dissect what happened in Austin this week, and there will be plenty of time over the next few months to comment and chuckle about the upcoming campaigns of Senator Fosdick and his Barney-Fife-like sidekick.  Instead, I want to briefly discuss what happened on the federal level.

I know that some of my fellow conservatives feel betrayed over the decision in U.S. v. Windsor, just as we felt betrayed by last year’s decision in National Federation of Independent Business v. Sebelius.  But the silver lining to the “Obamacare” opinion that I tried to explain in my post last summer applies to the Windsor opinion when read together with the opinions in the other three major opinions of this past week:

Just as Justice Roberts’ and Kennedy’s opinions in the “Obamacare” case attempted to corral the commerce power of the federal government back within its proper limitations, and protected State governments from further destruction of the federal structure of our government by allowing states to opt-out of the Medicaid expansion, Shelby County, Windsor, and Hollingsworth, preserve and strengthen federalism and the residual power of the States in a way that has not been articulated in many decades.  Moreover, Fisher continues to move us closer to the ideal of a classless, color-blind society that our ancestors fought so bravely to establish and secure. Conservatives should cheer these developments.

In fact the real winners of this past week are the first Justice Harlan and James Madison.  In Plessy v. Ferguson, Justice Harlan described the American ideal that had survived the Civil War in his lone dissent:

…[I]n view of the constitution, in the eye of the law, there is in this country no superior, dominant, ruling class of citizens. There is no caste here. Our constitution is color-blind, and neither knows nor tolerates classes among citizens. In respect of civil rights, all citizens are equal before the law. The humblest is the peer of the most powerful. The law regards man as man, and takes no account of his surroundings or of his color when his civil rights as guaranteed by the supreme law of the land are involved.

And earlier, James Madison had described the division of power at the heart of the concept of federalism in Federalist No. 45:

The powers delegated by the proposed Constitution to the federal government are few and defined.  Those which are to remain in the State government are numerous and indefinite.  The former will be exercised principally on external objects, as war, peace, negotiation, and foreign commerce; with which last the power of taxation will, for the most part, be connected.  The powers reserved to the several States will extend to all objects which, in the ordinary course of affairs, concern the lives, liberties, and properties of the people, and the internal order, improvement, and prosperity of the State.

Both men are being vindicated, however slowly, by the efforts of the Roberts Court.

Am I somewhat disappointed by all of the outcomes of these cases?  Of course.  Frankly, my views are more closely aligned with those expressed in Justice Thomas’ dissent in Fisher and Justice Alito’s dissent in Windsor.  As for the outcome of Windsor and Hollingsworth, the grounding of both Windsor’s federalism and equal protection analyses in a respect for the policy decisions of state governments has given conservatives a great analytical tool in future debates to limit federal authority, as well as additional time to continue to discuss the changes that are happening in our society and how we conservatives should guide them in a way that preserves the best of the unique character of our society for future generations.

And the analytical tools that the Supreme Court applied in these cases will surely be tested by the great Obama machine over the next few years, as the Benevolent One tries to save the climate and Mother Earth from mankind.  After his speech on Tuesday, here is what he told his supporters through his tax-exempt, “social welfare” platform, Organizing for Action”:

From: Barack Obama [mailto:[email protected]]
Sent: Tuesday, June 25, 2013 3:43 PM
To: XXXXXXXXXX
Subject: XXXXXXX: What I need from you

 

XXXXXXX –I told Congress in February that if they didn’t take action to fight climate change, then I would.

Today, I announced a plan of action to make good on that promise.

My administration is taking steps to cut carbon pollution, prepare our nation for the unavoidable impact of climate change, and put America’s best and brightest to work to solve this issue on a global scale.

One thing we know is we’ll face a well-organized and well-financed opposition by the special interests that profit from keeping things the way they are — and there are members of Congress who fundamentally deny the science on this issue.

But we cannot stand by any longer.

I need to know you’ll fight alongside me. Say you will.

Over the next few months and years, I’m going to need the millions of OFA supporters who understand that we have a responsibility to future generations to fight climate change to join me, and be a force of change in your communities.

We owe it to our children and grandchildren to take action — and now is the time.

Today, I’m here to tell you I am committed to doing my part.

Say you’ll do yours:

http://my.barackobama.com/Stand-Up-Against-Climate-Change

Thanks,

Barack

PAID FOR BY ORGANIZING FOR ACTION.

This email was sent to: XXXXXXXXXXXXXX
If that is not your preferred email address, you can update your information here. We believe that emails are a vital way to stay in direct contact with supporters. Click here if you’d like to unsubscribe from these messages.
Organizing for Action, P.O. Box 66732 Washington, D.C. 20035

 

So … the battle continues.