In the name of god, I discriminate against you

If you listen to Republicans such as Lt. Gov. Dan Patrick, Senate Bill 17 provides relief for those occupational holders who have sincere religious beliefs. Of course, getting past the fact that back in the day Mr. Patrick, when he was the sports director at KHOU in Houston, once painted himself blue on television, is a little bit difficult.

For the rest of us, Senate Bill 17 would allow license holders to discriminate against members of the public whose lifestyles offend their sincerely held religious beliefs.

This bill is aimed specifically at the LGBT community in Texas and it would legalize discrimination on the basis of religious belief. No word on whether a license holder who attends a white nationalist church would be able to refuse service to African-American or Latino customers if it offended his religious beliefs.

It's no surprise that the sponsor of the bill is from a most rural area of the state around Lubbock. In many ways, once you get too far west of I-35, you enter a land that time forgot.

Once again we see religion used as a justification for discrimination. I'm sure there are those of y'all who will tell me it's an abuse of religion to use it for hate and discrimination. I would beg to differ. 

Religion serves two purposes: first, it serves to justify the existing order as somehow ordained by god; second, it serves to divide the masses so that those in power can maintain their grip on power. 

As to the first point, all you have to do is listen to the charlatans standing in the pulpit telling their followers that their suffering is proof of god's existence and love. The point is to distract the masses from the underlying forces that keep them poor. You feed someone enough of this suffer on earth and live high on the hog in heaven and they will start to believe it. They won't question the relationship between capital and labor. They will resist scientifically-based arguments regarding the harm we are doing to the planet because they have been sold on the notion that man is the shepherd of the planet and it's all in god's hands.

As to the second point, all you have to do is look at the history of war on this planet. Religious difference has long been the justification for bloodshed and it will continue to be. The Catholic church went to war against native peoples in its never-ending quest for gold and material wealth. The protestants led the charge against the native peoples in this country in search of cheap land and resources. Major denominations split in the mid 1800's over the question of slavery. The Southern Baptist Convention owes its existence to its biblical defense of slavery. And let's not forget that white churches fought against the end of Jim Crow in the last century. Then there are the white, evangelical churches in the suburbs and rural areas who encouraged their members to vote for a racist man whose on his third marriage and paid off a porn star he was sleeping with.

Now we have companies such as Hobby Lobby who don't want to provide contraceptive coverage to their employees and justify their refusal with a call to religion. We have bakers who justify their refusal to bake cakes for gay customers on their religious beliefs. And now we will have more service companies in Texas who won't even try to hide their bigotry as they wave a bible at customers they don't wish to serve.

This is not a minority misusing religion to serve their own ends - this is the logical outcome for a society whose founders were religious extremists who left England so they would be free to impose their will on others.

The state of MLK Day 2019

On this MLK Day, perhaps it's time we took a step back and re-examine some issues. First, to all the Republicans and other conservatives that love taking phrases from King's speeches and writings out of context to promote their own political philosophy -- stop it! When Mike Pence gets up and quotes MLK and then goes into a tirade as to why a wall on the southern border is needed, he is being more than intellectually dishonest.

For those of y'all too young to remember, conservatives (regardless of their party affiliation) were strongly opposed to Dr. King's message. They were opposed to the black students who sat down at lunch counters across the South. That was rabble rousing, they would say. They disapproved of marches and protests. They blamed it on those damn radicals. They fought school desegregation and found new ways to perpetuate it in the suburbs thanks to white flight. Mainstream liberals went off the rails when Dr. King came out against the Vietnam War.

To have someone as reprehensible as Mike Pence whitewashing the words of Dr. King makes me sick. To use the words as a justification for a program that would promote further discrimination against Latinos angers me.

But all the white conservatives will pipe up about non-violence - even though the police continue to shoot unarmed black men and women across this country. They will talk about our colorblind society - even though we have a criminal (in)justice system that discriminates against the poor and people of color.

And, at the same time, they will continue to support the NFL's blackballing of Colin Kaepernick for the outrageous "sin" of protesting against police violence against black folk. His protest was peaceful. Yet somehow he can't find a spot as a quarterback even while teams are signing players who can't hold a candle to his achievements or potential.

The entire discussion around Colin Kaepernick distills the issues Martin Luther King, Jr., brought to the nation's forefront. Kaepernick did exactly what conservatives want - he protested peacefully. But that wasn't enough. You see, it's not the type of protest that conservatives care about -- it's who's protesting. Colin Kaepernick's biggest "sin" was being black and taking a stand.

Thanks to the climate of hatred whipped up by political leaders in the 50's and 60's, Dr. King was struck down by an assassin's bullet at the age of 39. He was silenced because he spoke out.

And sadly, because we live in a country that worships capitalism and consumerism like religions, his memory has been largely commodified and used as a reason for yet another sale.

Removing the mask

For years libertarians have described their philosophy in terms of allowing people to do as they wish so long as they don't infringe upon the rights of others to do the same. The less public face of their movement was to allow businesses to operate with as little government intervention as possible in order to maximize their profits.

So, while the one hand called for the freedom of individuals to have sex with whomever they wanted, to do recreational drugs in their homes and to be left alone by the nosy neighbors, the other hand called for an end to unionization, worker safety, environmental protection and the minimum wage. But, surprisingly enough, no one raised their voice about the price of a product reflecting its true cost.

Let me explain, gasoline is sold fairly cheaply compared to what it really costs society (but believe me, I'm none too happy to see that price edging upward whenever I have to fill up the tank). The price we pay at the pump doesn't take into account the cost of operating military bases in other countries in order to ensure the oil flows from the ground into tankers and into US ports. The price doesn't include the damage to the environment caused by extractive industry.

The libertarians aren't losing any sleep over this failure of the market. They don't care about the environmental damage because "the environment" isn't private property; therefore it's free to pollute to your heart's extent. Think of Adam Smith and the tragedy of the commons. And the libertarians are more than happy to use your tax dollars to fund the military occupation of other countries so long as it means the flow of oil continues uninterrupted.

Libertarians have always puffed their chests out proudly with their veneration and love for "the market." They have long preached the gospel of the unfettered market. Throw anything up against the wall - be it a good, a service, an idea - and the marketplace will sort it out and determine which goods, services and ideas are winners and which are losers. The idea was that the more stuff you put out there, the more options everyone had to choose from.

But now, as racism has become more acceptable with Donald Trump in the White House, the true face of libertarianism is making itself seen. Michelle Ray, who goes by the handle @GaltsGirl (an Ayn Rand reference for those of y'all not familiar with libertarian deities), thinks private businesses should be free to discriminate on the basis of race, sex, sexual orientation, religion or whatever other criteria they wish to use.

Michelle Ray‏Verified account @GaltsGirl

Don't look at me. I think a privately owned business should be able to discriminate for any reason at all. And then to deal with the market reaction to such discrimination.

I don't think I'm going out on a limb when I say that I doubt Ms. Ray spent her formative years in the American South in the 1950's and 60's. I'm also going to guess that Ms. Ray is white - again, not too much of a leap. According to Ms. Ray's philosophy, segregated schools, housing, restaurants, bus lines, trains, water fountains and restrooms are fine. If folks aren't happy with such discrimination, they are free to take their business elsewhere. Does she not understand history? Does she not understand that racial discrimination existed because the majority of (white) people were in favor of it?

So, in conclusion, I'd like to thank Ms. Ray -- and all those folks who liked her post - for speaking up and showing the world what libertarianism is really all about.

Narrowly missing the point

nar·row

ˈnerō/

adjective

1. 1.

   (especially of something that is considerably longer or higher than it is wide) of small width.

   "he made his way down the narrow road"

   synonyms:

   small, tapered, tapering, narrowing; More
2. 2.

   limited in extent, amount, or scope; restricted.

   "his ability to get good results within narrow constraints of money and manpower"

   synonyms:

   limited, restricted, circumscribed, small, inadequate, insufficient, deficient "a narrow range of products"

Who knew that the word narrowly was so difficult to understand?

On Monday the US Supreme Court issued its ruling in the Masterpiece case -- otherwise known as the dude who refused to make a wedding cake for a gay couple case. In a 7-2 decision, the Court decided to punt the case down the road rather than deciding the case on its merits.

The media reported that the case was "narrowly" decided. Of course those who supported Jack Phillips' decision not to bake a cake for the gay wedding questioned how a 7-2 decision could be considered narrow. I would suspect that John Cornyn and Ted Cruz knew what "narrowly" deciding a case meant while they were sending out tweets in support of the decision claiming a victory for religion.

And, as an aside, if there was any doubt among y'all that the Republican Party stands for bigotry, hatred and discrimination, look no further than the officeholders who tweeted out about the decision and the words they used.

Anyone who paid attention in government class knows that the Supreme Court will always look to craft their opinion in a case as narrowly as possible since it is up to Congress to pass bills and the President to sign them into law. The purpose of judicial review (at least according to John Marshall) is to determine whether the application of a law is constitutional. The only time the Court strikes down a law itself as being unconstitutional is if there is no application of the law that can pass scrutiny.

This is the reason why lawyers will spend hours researching case law to find ways to distinguish the fact pattern in their case from existing precedent. If you can distinguish your case enough from those already decided by the court, you might just get the result you're looking for. And, in the same vein, it's why the lawyers on the other side will look for ways to pigeonhole the fact pattern in the case to an existing decision. As Tony D'Amato told his football team in Any Given Sunday, it's a game of inches.

In Masterpiece, the Court did not strike down the Colorado law Mr. Phillips was challenging. That would have been a broad decision - regardless of which way the Court leaned. In order to avoid having to make that decision, the Court looked at the application of the law in question and decided that the manner in which the hearing was held violated Mr. Phillips' right to freedom of religion (or, as I prefer, his right to use religion as a justification for discriminating against a group of people).

The Court wasn't happy that the commission who decided that Mr. Phillips violated the law seemed to be a bit hostile to his religious beliefs. Now, call me crazy, but if you're going to use religion as your defense to a claim that you discriminated against a couple because they were gay, then I think your religious beliefs are fair game in a hearing.

The funniest part of the right's celebrating the Court's ruling is that what the Court really did was instruct Colorado on the proper way to enforce their anti-discrimination statute. Let's think about this for a minute. The Court didn't declare the statute unconstitutional. The Court didn't say that forcing the baker to bake a cake for the gay couple infringed upon his religious beliefs. What the Court said was that the commission needed to conduct the hearing in a religion-neutral tone.

In other words, the next time the commission has to conduct such a hearing, the commission should let the baker give his reason for refusing to bake the cake. Then, instead of launching off into a speech as to how religion has long been used to justify racism, hatred, discrimination and violence, the commission should just ask him whether or not there was any other reason for him to refuse to bake the cake other than his belief that homosexuality was a sin.

If he were to say no, the commission could then vote and issue a ruling that he violated the statute in refusing to bake the cake. Based on Monday's decision, that would be upheld.

Of course the most amusing part of the opinion was Justice Gorsuch losing the plot and trying to explain what was a wedding cake and what wasn't and why it mattered.

God told me I couldn't bake you a cake

Suffer (bring) the children to me.

Love your neighbor as you love yourself.

Do unto others as you would have them do unto you.

Those are some of the platitudes in the Bible with regard as to how to treat other people. But apparently not from the Bible that Cathy Miller of Bakersfield (CA) or her ilk read.

For you see, Ms. Miller is just the latest person to claim that her religious beliefs allow her to discriminate against those she just doesn't like. Amazing how we keep running into these folks.

Ms. Miller owns Tastrie's Bakery. A same sex couple came to her shop and asked her to make a cake for their wedding. Being more intent on discriminating against the couple than in making money, Ms. Miller refused. She said that her religious beliefs made it impossible for her to bake a cake for a lesbian couple.

The couple then filed suit against Ms. Miller, arguing that her refusal to make them a wedding cake was a violation of the state's civil rights statute. Ms. Miller, on the other hand, argued that making a cake was an artistic expression protected under the First Amendment which meant she could choose the customers for whom she was willing to bake a cake.

Kern County Superior Court Judge David Lampe ruled in Ms. Miller's favor stating that designing a cake was different than baking a cake as it was an act of artistic expression. He did caution Ms. Miller that she could not refuse to sell a wedding cake to a same sex couple.

But here's the problem. Whether a baker designs a cake specifically for someone or just bakes a cake to put in the display case is a distinction without much meaning. Baking a cake is baking a cake. You throw some ingredients into a bowl, you mix them up and you throw it in the oven. When it's done you take it out and ice it. It appears that the only difference would be whether the baker baked the cake before or after the couple ordered it.

What Ms. Miller did is no different that what white business owners did during Jim Crow and what bankers did for years afterward. She is refusing service because she doesn't like a customer because of her sexual orientation. That is no different than refusing service because a person is black or catholic or a woman.

The fact that she relies on her religious beliefs to just discrimination tells you everything you need to know about religion. The fact that a judge ruled that it was okay for her to discriminate so long as she waved a bible in the air tells you all you need to know about the pernicious effect of religion on civil society.

Let them eat cake

Yesterday the U.S. Supreme Court heard oral arguments in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, the case about the baker who refused, on religious grounds, to bake a wedding cake for a same sex couple.

Amy Howe over at SCOTUSblog did an excellent analysis of yesterday's questioning from the Supremes. She believes the court will split (again) 5-4 in favor of the baker but wonders just how narrowly they will craft the opinion. She based her analysis on the change in tone of Justice Kennedy's questions from start to finish.

First, I must point out, once again, that religious belief is still the most popular justification for discrimination. Now I could go on and on quoting portions of the Bible in which Jesus preaches a message of equality and love and brotherhood. But I'm not.

Jack Phillips likes to call himself a christian. But he believes that the holy word gives him the right to discriminate against those whom he doesn't like. The latter day charlatans who preach that homosexuality is a sin worse than any other act like they are quoting the word of god when they launch into their hateful spiel. The only problem is the book they are quoting from has been translated countless times from multiple languages. There's no guarantee that the words they are quoting in 2017 are the same words written in the original texts.

But we digress.

The issue is whether a privately run business has the right to decide whom they wish to provide with services. This is different from the argument in the 1960's that private buses, trains, hotels and restaurants were public carriers. Mr. Phillips claims that forcing him to make a cake for a same sex wedding would somehow violate his right to free speech. I'm not really buying that one because food is not speech. Food is food and food is for eating.

Does requiring him to bake the cake violate his right to freedom of religion? As far as I can tell, no one is telling him what to believe or how to do it. However, would requiring him to bake the cake trample upon his right to the free exercise of his religion? That is a much closer question, I think.

What does it mean to exercise one's religion? Baking and selling cakes is a commercial enterprise, not a religious one. Maybe he says he's spreading the word of god by baking cakes - but is that exercising one's religion?

And what if in exercising that religion a person, or entity, intentionally discriminates against another based upon that person's race, sex, ethnicity, national origin or sexual orientation?

And, as an aside, at what point do we finally acknowledge that religion serves more to divide us than to unite us? White protestant churches were very prominent in the fight to preserve Jim Crow segregation in the South. All of the major protestant denominations split in the 19th century over the question of slavery.

Back in college I took a class on sociology and religion and our professor played for us a recording of an Emo Philips routine that I have looked for off and on for years -- and finally found it.



There are some serious issues that need to be addressed in this case. The Court must decide how much discrimination in private commercial enterprises is acceptable. If the Court decides it is acceptable then the Court must decide whether the enterprise wishing to discriminate must give a reason for its choice. If so, the Court must decide where to draw the line for a legally valid rationale for discrimination. Finally, the Court must decide which groups can be discriminated against for which reasons. It remains to be seen whether the Court will develop a balancing test to determine how large a community has to be in order to permit discrimination.

Regardless of the decision, the law of the land will most likely be determined by the vote of one justice - Anthony Kennedy. Not quite what the Founding Fathers had in mind, I daresay.

Vacation or jail?

After the events of the last few days it's time to end the double-standard in our criminal (in)justice system that we don't talk enough about.

In Dallas last night, five police officers were killed by sniper fire and another six were wounded and taken to the hospital. There was a manhunt. Three suspects were taken into custody and a fourth was found dead - apparently by a self-inflicted gun wound. These men will be placed in the Dallas County Jail. They will be charged with capital murder. Prosecutors will ask that the judge deny them bond - and the judge will acquiesce. They will sit in jail until their cases are disposed of.

In Baton Rouge, Louisiana and just outside St. Paul, Minnesota, police officers murdered black men. In Baton Rouge officers tased and tackled Alton Sterling before shooting him multiple times in the chest and back. In Falcon Heights, Minnesota, Philando Castile was pulled over for having a cracked tail light. After Mr. Castile told the officer he was licensed to carry a gun and was carrying a gun, the officer opened fire and murdered Mr. Castile in front of his girlfriend and his 4-year-old daughter.

Are the police officers in jail? Are they facing charges?

No.

They are all on paid administrative leave.

There is no justice. If you kill a police officer the entire weight of the criminal (in)justice system will come down on you; but, if you are a police officer and you kill a black man, you go on vacation.

And you wonder why this shit continues.

One way to reduce indigent defense bill

So you think it's hard to get a court-appointed attorney in Harris County. There are judges who will tell defendants who have been able to scrape up enough money to post bond that they have to sell everything they own before an attorney will be appointed for them.

Nevermind that in most cases the bond money was put up by family members or friends and not by the actual defendant. In Harris County, if you're not wearing an orange jumpsuit when you ask for an appointed attorney you have a very hard road to hoe.

The judges know there are plenty of attorneys who will take cases on the cheap and plead their clients out on the first or second setting without ever investigating the case. The judges seem to have no idea what it actually costs to hire an attorney in Houston who's actually going to work on your case. The result is a whole lot of folks with convictions on their records who may have stood a good chance of having their cases dismissed or the charges reduced after a little bit of legwork on the part of their attorneys.

But, hey, it clears another case of the docket and that's a good thing. Right?

In McLennan County (that would be Waco for those of y'all not familiar with the lay of the land), they have taken the denial of counsel one step further. If you want to have an attorney appointed to handle your case you have to fill out an application. That application will then be investigated by a sheriff's deputy who's going to come to your house and take a look around to see if you're really as indigent as you say you are.

Now, just a word of warning here. There are those of us who practice criminal law on a regular basis who would be very hard pressed to come up with a retainer fee on a felony case. I know plenty of attorneys who do quite well who would be considered indigent if they were charged with a felony in federal court.

What's really going on up in Waco is the courts are trying to make it harder and harder for those accused of serious crimes to defend themselves. Just because someone was able to borrow money from their parents or their grandparents to post bond doesn't mean they have the money to pay an attorney. Parents and grandparents will often do whatever they can to help out their wayward children and grandchildren - but you can't expect them to pick up all the bills.

In sending out a sheriff's deputy to investigate those seeking appointed counsel, the courts are doing their best to intimidate those who are able to post bond not to ask the county to pick up the tab for their lawyer. To make matters worse, officials like to brag about arresting folks on felony charges of falsifying government documents when they make a questionable statement on their application.

As I said yesterday, if the county is concerned about the amount of money they're spending on appointing lawyers for indigent defendants, then maybe law enforcement officials and prosecutors should think twice before arresting folks or filing charges. A little discretion here and there can go a long way to reducing the county's legal bills.

Now I don't think I'm going out on a limb here but I would imagine that the number of black defendants asking for appointed counsel is probably disproportionate the African-American population in McLennan County which means this investigation program is just another tool for the state to discriminate against blacks.

The worst thing about the article is the way in which the writer is all rah-rah with the police and court officials. Nowhere in his piece does he even raise the question of whether this program serves to deny folks their constitutional right to counsel when the state is attempting to take away their liberty. I guess being a sycophant is much easier than being an actual reporter.

For those of y'all who wish to let the reporter know what a great job she did regurgitating the Sheriff's PR release, her name is Stephanie Butts and her e-mail address is sbutts@wacotrib.com. Here's her LinkedIn profile.

Update: Foiled again

So close, Rick. So close.

Rick Perry and his hypocritical band of limited government preachers were foiled in their attempt to exercise the most invasive power the government has - the power to take a life.

Yesterday afternoon, State District Judge Larry Mitchell granted Kimberly McCarthy a reprieve from her date with the executioner until April 3, 2013. Ms. McCarthy's attorneys argued that they needed more time to prepare an appeal of Ms. McCarthy's death sentence on the grounds that blacks and other minorities were improperly excluded from the jury that sentenced her to die at the hands of the state.

The Dallas County District Attorney, Craig Watkins, reversed course and dropped his opposition to Ms. McCarthy's motion to reschedule. Mr. Watkins said he thought the delay was "appropriate."

The question to ask is on what basis would an appellate court decide whether the racial makeup of a jury led to the death penalty being imposed when it wasn't warranted. Will a court look at the makeup of Ms. McCarthy's jury and the pool from which it was withdrawn and then require Ms. McCarthy to provide proof that the makeup of the jury led to her being condemned? Or will a court look at the makeup of the jury and the county at large and at how many times overwhelmingly white juries have sentenced black defendants to death? Will a court permit Ms. McCarthy to present evidence of the disproportionate number of black defendants to be sentenced to death or will that court look specifically at Ms. McCarthy's case?

There can be no doubt that the death penalty is handed out disproportionately to minority defendants as opposed to white defendants. There is also compelling evidence that the death penalty is meted out more often when the victim is white.

Either way, today Ms. McCarthy is still alive - and that's a victory in itself.

5th Circuit overturns murder conviction

The 5th Circuit Court of Appeals overturned the murder conviction of Jonathan Bruce Reed, who has sat on Texas' death row for almost 30 years.  The Court sided with Mr. Reed who argued that the systematic exclusion of blacks from juries in Dallas County was a violation of his Sixth and Fourteenth Amendment right to trial by a jury of his peers.

Mr. Reed is white.

In so ruling, the Court is saying that the systematic exclusion of any group from service on a jury is a violation of a citizen's right to trial by jury, per Batson v. Kentucky, regardless of the citizen's sex, race or ethnic background.

The decision also serves to define jury of one's peers to mean a jury made up of a cross-section of a geographic community.

See also:

• Appellate brief in Reed v. Quarterman.
  
• Houston Chronicle account of the reversal.