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Posts Tagged ‘harassment’

…But at Least It will Make a Good Made-for-TV Movie

January 13th, 2010 No comments

As I more or less expected, the U.S. Supreme Court has just ruled, 5-4, to continue to block the broadcasting — even the delayed broadcasting — of the Prop 8 trial. As I stated a couple of days ago, this action just ensures that we’ll continue to get our information through filters from the left, rights, and center. Yes, we can piece together the story in broad outline from these sources, if we want to take the time to synthesize all of this. But what a needless obstacle to information.

And the idea that the Prop 8 supporters will be harassed or threatened by the trial? By applying that reasoning across the spectrum of cases, the public dissemination of knowledge would be greatly reduced, indeed. One should have to show a clear and imminent danger for such a claim to carry the day, not the kind of speculative harm that’s really all that’s alleged here. Indeed, the brief filed in support of the defendant’s motion devoted all of one-half of one page to this argument, citing an earlier Supreme Court criminal law case, where (obviously) safety of witnesses and jurors might be a concern.

I was struck by this comment on another blogsite:

I really hope someone’s writing a book or a screenplay in order to present this material to middle America in the near future!

That says it all. Let’s wait for an easily digested version of the actual event, suitable for “the masses.” Why not let all of see it as it happens, and avoid the commercial calculations about what versions should get made? Or is this too obvious?

The Court, though, sidestepped these more difficult issues by ruling that the order to broadcast was procedurally deficient (the lower court did change its rules “at the eleventh hour,” as the Court said). I’m trying to get my hands on the full opinion and will have more to say after I’ve thoroughly digested it. For now, I note the distressing (if wearily predictable) fact that the 5-4 split was along the usual conservative-moderate (by no fair lexical stretch can these four be called “liberal”) fault line. Is this ruling a harbinger of the ultimate decision when the case reaches the Court? Who knows, but I’m not encouraged.

Enjoy whatever scraps you’re able to get from those “on the ground.” A terrible shame, really.

Update: 6:08 EST You can find the decision here. Most of the squabbling between the majority (Roberts, Scalia, Thomas, Roberts and Alito) and the dissent (Stevens, Breyer, Ginsburg, Sotomayor) had to do with the way the rule permitting broadcast was put into effect. The majority disclaims any ruling on the merits of whether trials should be broadcast in the first place. The dissent seems skeptical of this statement. So am I.

Interpreting Supreme Court’s Stay of Video Coverage in Perry v. Schwarzenegger

January 11th, 2010 1 comment

Less than one hour ago, the Supreme Court voted — by a lopsided 8-1 majority — to grant the defendants’ motion to prevent the youtube broadcast (even the delayed broadcast) of the trial proceedings in Perry v. Schwarzenegger, the California federal case challenging the constitutionality of Prop 8 (and, by extension the constitutionality of the ban on same-sex marriages.)

I can’t yet find the Court’s ruling, but it’s likely short, because the Court only agreed to defer the issue until Wednesday, by which time one would expect they’d issue a more comprehensive decision. But the fact that eight of the justices believe that the application has at least some merit (a least enough for a short stay) surely isn’t a good sign for those, like me, that planned on some good popcorn viewing over the next several weeks.

I’ll have much more to say after the Court’s more substantive decision on Wednesday (especially if the Court affirms and continues the stay), but for now I note:

  • As the linked article suggests, some members of the Court may be allowing their own views about televising of Supreme Court proceedings to affect their judgment here. Several members, notably Chief Justice John Roberts, have been vocally opposed to suggestions that the Court allow anyone to actually see what it’s doing.
  • It’s worth wondering how the professedly (if disingenuously) anti-elitist Justice Scalia will rule. Surely public access to a trial, where people sitting in their living rooms can make their own judgments about the evidence, should be — from the vox populi standpoint, anyway — better than having such proceedings filtered through the media lens; and a small number of media outlets, at that. Let’s see whether this sentiment even surfaces in a case where Scalia might believe that honoring it would do harm to a case in which his belief, from available evidence, is quite strong.

Of course, one might seize on my phrase “popcorn viewing” in support of the position that allowing the citizenry to watch trials of national importance is to permit their trivialization. But if we’re going to let people vote on rights, it seems the least we should do is to let the oppressed see the arguments being used against us.

As for the claim that witnesses will be intimidated or harassed should be trial be televised, it might be answered that the witnesses and their statements will (unless there’s something I’m not aware of) be part of the public record. Anyone determined enough to find out the information can already do so. Let’s not allow speculative, incremental risk to get in the way of full disclosure.

After all, the arguments against marriage equality are surely compelling, aren’t they?

Oh, Perry! (Hold On)

January 10th, 2010 No comments

In case you were wondering whether the Prop 8 defenders believe their arguments are sound, wonder no more: They have gone so far as to seek, from Supreme Court Justice Anthony Kennedy (who decides such applications for the Ninth Circuit, of which California is a part), an emergency stay of the California court’s order to allow a delayed broadcast of the trial proceedings. The trial is to start tomorrow, with the youtube broadcast to be offered on time delay (maddeningly, we don’t know when the video will be available; later the same day, or early the following day).

Does this action sound to you like that of a group confident in the strength of its arguments? Me, neither. The stay application cites the prospect of witness intimidation and harassment if this show trial is broadcast. Translation: We’re much better off if people can’t see that we have no good arguments against allowing gay couples the same right to marry that heterosexual couples take for granted.

One interesting tea leaf to read here: Justice Kennedy is among the Court’s most consistent defenders of the First Amendment, reading its guarantees quite broadly. Thus, if he does grant the stay, the prospects for ultimate success at the Supreme Court dim. His vote is likely decisive. And Kennedy probably can’t dodge the issue by asking the full Court to weigh in, because the other eight justices would likely split 4-4, throwing it right back to him.1 There’s something fitting about Kennedy’s role here: He can decide this, all by himself. We might as well say that about marriage equality, generally.

  1. I know, this is much too simple, because this isn’t the same as deciding the marriage issue on the merits. And the First Amendment issue could split the Court in a different way. Yes, but if Bush v. Gore taught us anything, it’s that theory and doctrine will be subordinated to political result when the chips are down. So I don’t expect the conservative wing of the Court to do anything that would diminish, even hypothetically, the case against marriage equality which they may soon have to hear.

A Real-Life Conflict Between Religion and Marriage Equality

November 9th, 2009 No comments

This story from FOX News illustrates the conflict that can arise in the workplace where anti-discrimination norms bump up  against strongly held religious views. In sum, one Brookstone employee, Peter Vidala, didn’t appreciate another’s telling him that she had gotten married to her same-sex spouse. (All relevant events in this story took place in Massachusetts.) After a few moments of prayerful reflection, he came back with this statement to her:

“Regarding your homosexuality, I think that’s bad stuff.”

She complained, left, apparently reported the incident to Human Resources, and Vidala was fired. He continues to defend his position, saying that calling same-sex unions “marriages” is “lunacy.” Brookstone has a different view, as set forth in this termination letter:

“In the state of Massachusetts, same-sex marriage is legal and there will be people with whom you work with who have fiancées or spouses who are the same gender…While you are entitled to your own beliefs, imposing them upon others in the workplace is not acceptable and in this case, by telling a colleague that she is deviant and immoral, constitutes discrimination and harassment.”

He’s considering filing a complaint with the EEOC.

This is a case that could have been avoided, of course: Vidala could simply have asked that the woman focus on work, or might have thought of something to say that was less offensive, and therefore less likely to trigger her outraged response. Memo: No one likes to be told that their identity, and the exercise of their legal rights, is “bad stuff.” That’s especially true where the person on the receiving end is part of a historically disfavored group. Once same-sex unions are legal, the comment is no different than if he’d said: “Your marrying someone of a different race is “bad stuff.”

I should also say that the woman impugned (who hasn’t been identified, to my knowledge) could have given the guy another chance, a warning, suggested he consider some diversity training, etc. But not everyone is so magnanimous, nor should one expect them to be.

I don’t think he has a claim; free speech and the free exercise of religion (which isn’t as directly implicated anyway) aren’t absolute, and anti-discrimination laws declare some speech and conduct off-limits. For example, a male employee can’t use the First Amendment as a shield for telling a female subordinate that her body is [fill in the suggestive remark], and that he’d like to take her out for dinner. This isn’t the era of Mad Men.

What would be the result under the religious exemption laws that some scholars flog so relentlessly, calling such protections needed where marriage equality becomes law? Not so clear, I would say. If religious objectors involved in commerce can “step aside” and refuse to facilitate same-sex marriages (as by declining to cater a gay wedding), can they also be shielded against anti-discrimination laws for expressing a view against gay marriages? Doesn’t such expression have less impact than a refusal to deal? And if the laws could potentially apply to that situation, then let’s pick apart Vidala’s comments to see whether they were based only on the marriage (protected, potentially, under this view), or on a broader discomfort with homosexuality (not protected).

It also seems as thought this case underscores the need for educating people about the diverse society in which they live. If kids aren’t told about, and counseled to respect, others with whom they (their parents, really) disagree, they might become Peter Vidalas: unable to hold their tongue even when their comments end up harming both themselves and their fellow employees.

Prowel v. Wise Business Forms, Gender Stereotyping, and Caster Semenya

September 10th, 2009 1 comment

This just in: the South African track star,  Caster Semenya, turns out to be of ambiguous gender. Testing reveals that the athlete, who competed in the recent World Championships and easily won the 800-metre run, has internal testes that produce a large amount of testosterone. There are currently no plans to strip Caster of the gold  medal, but there’s talk about awarding a second  gold medal to the runner-up, presumably on the basis that the winner enjoyed an unfair advantage over the other competitors, though not intentionally. (I’m assuming that Caster’s visible sex organs are female; in any event, she and her family raised her as female and have always considered her so.)

As I wrote previously, this may be one of the cases where we do need to make a determination about gender, because sports competitions are generally divided by sex because of the physical advantages that men possess in most (not all) sports. So going forward, my guess is that Caster Semenya will be required to compete as a male.

But whom should she be allowed to marry? Should the gender chosen, as a matter of necessity, for the limited purpose of athletic competition extend into every aspect of her life? Since her gender is decidedly ambiguous, should she be able to marry the person of her choice, male or female?

In South Africa, the question won’t arise, because that country’s constitutional commitment to equality, which expressly extends to matters of sexual orientation, has been interpreted to embrace the right of gays and lesbians — and, I assume, folks like Caster Semenya — to marry the person of their choice.

Here in the U.S., of course, we’re much more committted to sniffing out gender unambiguously. I’d guess that where that can’t comfortably be done, those who recite the mantra that “children need a mother and a father” would prefer that Caster Semenya not be permitted to marry anyone. Too weird.

As a recent decision by the federal appellate court for the Third Circuit reveals, though, this boxing and commitment to gender has all sorts of strange consequences. In a case arising in Western Pennsylvania, Prowel v. Wise Business Forms, the appellate judges had to sift through a gay man’s allegations of workplace harassment to determine whether the mistreatment he complained of was because of his sex or because of his sexual orientation. Why bother? And what’s the difference, you (non-lawyers) may be asking?

Well, federal law protects against sex-based discrimination but not against discrimination based on sexual orientation. The seminal(?) case involved a woman who alleged discrimination because of her non-conformance to the gender role she was expected to fill. (She “wasn’t charming,” for example.) That kind of gender stereotyping, the Supreme Court ruled in Price Waterhouse, was sex-based discrimination and therefore prohibited by Title VII, the federal law that applies to such actions. So if Prowel can show that he was harassed because he wasn’t “typically” male, he’s got a claim —  even though he also “happens” to be gay.

Both his behavior and that of the “real men” who harassed him are the stuff of easy parody. While he “filed” his nails, the other guys “ripped them off with utility knives.” What? Really? Utility knives? Oh, and he pushed the buttons on his work gizmo “with pizzazz”! What kind of real man does that?

So now the lower court must let the jury decide whether Prowel was harassed because of his failure to  conform to gender stereotypes. If so, the court seems to say, then any mistreatment because of his sexual orientation is beside the point — he’s got a claim. But if the mistreatment were because of sexual orientation only, no claim is stated. There’s still no federal law prohibiting discrimination on that basis.

This is just silly. If Prowel’s allegations are true, he was harassed because gay men, especially but not only effeminate gay men, make some straight men uncomfortable to the point where they feel a need to…rip their nails off with utility knives. Sexual orientation is itself a failure to conform to gender stereotypes, but somehow that most basic point isn’t legally cognizable. The law only protects against sex-based discrimination, so claimants and juries are tasked with separating out two things that…are really one.

Before long, these legal niceties and the more general obsession with gender will come to be seen as historical curiosities — except perhaps in those few cases, like sports, where what’s being measured is something quite specific. We like sports because results are clean and clear, and because there’s an unambiguous finality to the outcomes. But the rest of life isn’t like that, however much some wish it otherwise.

Supplement to Radio Gig on “DADT”

July 1st, 2009 No comments

I had a great time on NPR affiliate WYPR‘s Midday Show today, discussing the indefensible “don’t ask, don’t tell policy” with host Dan Rodricks and Alex Nicholson (whom I profiled here, and who was discharged under DADT).

You can listen to the broadcast here. I wanted to add a quick note to what was said on the radio, though. During one of the breaks, I explained to Rodricks that the policy’s cost went far beyond the gays and lesbians kicked out of the service (or who don’t reenlist). He then asked me to say this on the air, but the chance didn’t arise.

In a point I elaborated from Nathaniel Frank‘s excellent book “Unfriendly Fire,” this policy creates a weird, sexually perilous, atmosphere for gays and straights alike. If “gay” is grounds for discharge — and, really, it is, despite the initial and now abandoned effort to separate “status” from “conduct” — then many men are forced to act like self-conscious incarnations, sometimes bordering on parody, of the Hyper Masculine Male. In one laugh-or-cry story detailed in the book, a guy who was suspected of being gay because of his metrosexuality made it a point to stink up the joint with bad breath: poor hygiene is apparently a buffer against both intimacy and the accusation of homosexuality.

Less amusing are the grisly stories of women either harassed, beaten, or sexually assaulted who are then afraid to come forward for fear — sometimes justified, unfortunately — that by complaining they’ll be seen as lesbians. And once someone has the idea that you might be a lesbian, then any and all “evidence” from musical taste (yes, k.d. laing) to sports interests (do not follow the Dinah Shore golf tournament), to taste in art (I give up, here) can and has been used in the witch hunts that DADT has accelerated rather than stopped.

Until DADT receives its long-overdue legislative interment, the Department of Defense must issue memoranda (and regulations, although these take longer) moving the policy back toward its less vicious intent. (Here‘s a small reason to hope.) Stop asking, stop investigating, take complaints of harassment seriously, train officers and troops alike about respect for all. Enough, already.