Jerry Brown (remember him?) — once California governor, now California Attorney General, and possible future California governor — says in a letter to the California Supreme Court that the prohibition against preferential treatment based on race or gender that was added to the California Constitution by Prop. 209 is unconstitutional.
To the extent that the prohibitions against race- and gender-based discrimination in article I, section 31 of the California Constitution (hereafter referred to as section 31) are aligned with the prohibitions enforced under the Equal Protection Clause of the Fourteenth Amendment of the United States Constitution, section 31 is constitutional. However, to the extent that section 31 is interpreted more broadly to bar race- or gender-conscious programs that would be permissible under the Fourteenth Amendment, it violates the Equal Protection Clause of the federal Constitution....Brown’s argument seems to be identical to one the ACLU and NACCP tried, most recently, in Michigan, to no avail. Closer to home, it also seems to be identical to one even the Ninth Circuit all but laughed out of court in rejecting a challenge to Prop. 209 right after it passed. As the opinion by Judge O'Scannlain put it:
.... Proposition 209 amends the California Constitution simply to prohibit state discrimination against or preferential treatment to any person on account of race or gender. Plaintiffs charge that this ban on unequal treatment denies members of certain races and one gender equal protection of the laws. If merely stating this alleged equal protection violation does not suffice to refute it, the central tenet of the Equal Protection Clause teeters on the brink of incoherence.It appears that Jerry Brown is asking the California Supreme Court to decide who is incoherent, Jerry Brown or the Fourteenth Amendment. The choice would seem to be clear, but then nothing is completely clear in California.
The Chronicle of Higher Education takes note of Attorney General’s Brown’s letter today, here. If you have access to the Chronicle, the comments to this note are worth reading.
The Los Angeles Times has a good article on this issue today. It quotes, to good effect, Sharon Browne, a lawyer with the Pacific Legal Foundation who is challenging a San Francisco law giving preferences to women and minorities. (It is that case that prompted the Calif. Supreme Court’s request for an opinion on Prop. 209 from Attorney General Brown.)
“It would be incredibly strange for the California Supreme Court, 13 years after Prop. 209 was adopted, to say at this time it is unconstitutional,” said Browne, a lawyer with the Pacific Legal Foundation, a conservative public interest law firm.Strange indeed. If the California Supreme Court were now to adopt the view that Prop. 209 is unconstitutional, would it have to conclude that it was unanimously wrong in its 2000 opinion, City of San Jose v. Hi-Voltage Wire Works?
The state high court unanimously ruled in 2000 that Proposition 209 prohibited a San Jose outreach program. That ruling cited a 1997 decision by the U.S. 9th Circuit Court of Appeals that found Proposition 209 constitutional.
Separate but Unequal Protection
Rep. John Conyers (D-MI) and Rep. Mark Kirk (R-IL) have quietly re-introduced the federal thought crimes bill, H.R. 1913, the Local Law Enforcement Hate Crimes Prevention Act of 2009. As has proved to be true in both Europe and Canada, this Orwellian piece of legislation is the direct precursor to freedom killing and speech chilling “hate speech” laws. It represents a thinly veiled effort to ultimately silence – under penalty of law – morally, medically and biblically based opposition to the homosexual lifestyle. The bill is expected to be marked up Wednesday before the full House Judiciary Committee.
Under the 14th Amendment, victims of violent crime are currently afforded equal protection under the law regardless of sexual preference or proclivity. If passed, H.R. 1913 will change all that. It overtly and, most likely, unconstitutionally discriminates against millions of Americans by granting federally preferred status, time and resources to individuals who define their identity based upon aberrant sexual behaviors (i.e., “gay” and lesbian “sexual orientation” or cross-dressing “gender identity”).
Of course, this entire concept flies in the face of the 14th Amendment. It inarguably codifies unequal protection under the law, creating a two-tiered justice system made up of first-class victims such as those who self-identify as homosexual or “transgender” and second-class victims such as the elderly, children, pregnant women, veterans, the homeless and others who choose not to engage in homosexual or cross-dressing behaviors.
There is exactly zero evidence to suggest that homosexuals or cross-dressers do not currently receive equal protection under the law. In fact, you need only look to the most famous “hate crime” of all – Matthew Shepard – for proof. Although the evidence determined that Shepard's murder was not a “hate crime” by definition (a misconception still widely propagated by the homosexual lobby, the media and liberal lawmakers) the two thugs who committed the crime nonetheless received life in prison – and rightfully so. (Shepard's murder turned out to be the end result of a robbery for drug money gone from bad to horrible).
Likewise, the murderer of Mary Stachowicz – a devout Catholic grandmother who was brutally killed by a homosexual man in Chicago merely for sharing the Bible – was also given a life sentence. The system worked in both cases and both victims received equal justice under the law apart from any discriminatory “hate crimes” legislation.
Yet, proponents of H.R. 1913 claim it’s needed to curb an epidemic of so-called “hate crimes” committed against homosexuals and those who suffer gender identity disorder. This is a lie that is knowingly and intentionally cultivated by a very well funded and intrinsically deceptive homosexual lobby. The alarmist propaganda simply doesn’t square with the facts.
According to the latest FBI statistics, in 2007 there were about 1.4 million violent crimes committed in the U.S. Of those, only 1512 were reported as “hate crimes” motivated by “sexual orientation” bias. Over two thirds of those were allegations of “hateful” words, touching, intimidation, pushing or shoving. There were a mere 247 cases of aggravated assault (including 5 deaths) allegedly motivated by “sexual orientation” bias nationwide. In each case, where appropriate, offenders were prosecuted to the fullest extent of the law and victims were afforded the exact same justice guaranteed every other American.
The entire push for federal “hate crimes” legislation is rooted in fraud. In fact, many of the most high profile reports have turned out to be false. For example, investigators determined that the very “hate crime” (Andrew Anthos in Michigan) exploited by liberal lawmakers to justify the same legislation in the last Congress, was a false report. It never happened. And instances of such fabricated and politically motivated “hate crimes” continue to pile up.
So, if proponents of H.R. 1913 are neither justified nor motivated by an actual need for the bill – as clearly demonstrated – then what drives them? The answer is twofold. First, passage of “hate crimes” legislation would place the behaviorally driven and fluid concepts of “sexual orientation” and “gender identity” on an equal footing with legitimate, neutral and immutable “suspect class” characteristics such as skin color or a person’s true gender.
This creates both a sociopolitical and legal environment wherein traditional sexual morality officially becomes the new racism. Those who publically express medical, moral or religious opposition to the homosexual lifestyle are tagged by the government as “homophobic bigots” to be treated no differently by law enforcement, the courts or larger society than the KKK or neo-Nazis.
In short, this bill places newfangled “gay rights” in direct conflict with our enumerated constitutional rights. It becomes the first step in the official criminalization of Christianity. It’s a zero sum game and someone has to lose. Ultimately, what we lose are our First Amendment guaranteed rights to freedom of speech, religious expression and association.
But the threat is not just some shadowy phantom looming in the near future. It’s a clear and present danger. While debating the notion of “conspiracy to commit a hate crime” in the last congress, Artur Davis (D-AL) admitted that the legislation could be used to prosecute pastors for merely preaching the Bible under the concept of “inducement” to violence.
Furthermore, under existing criminal statute if H.R. 1913 becomes law, actual violence or injury need not take place for a “hate crime” to occur. For example, if a group of Christians are at a “gay pride” parade and a one of them gently places his hand on a homosexual’s shoulder and shares that there is freedom from homosexuality through a relationship with Jesus Christ, then, voila, we have a battery and, consequently, a felony “hate crime.”
But the Christian needn’t even touch the homosexual. If the homosexual merely claims he was subjectively placed in “apprehension of bodily injury” by the Christian’s words then, again, the Christian can be thrown in prison for a felony “hate crime.” The FBI has included mere words – “insults” and “intimidation” – in calculating “hate crimes” statistics and – under the current political regime in Washington – there’s every reason to believe they’ll subjectively consider “insults” and “intimidation” (read: traditional sexual morality) for purposes of prosecuting “hate crimes.”
Yes, it’s a brave new world and with H.R. 1913 – among other things – a once free America has moved, both literally and figuratively, a quarter of a century beyond Orwell’s 1984.
The dreaming Diamond is losing his sparkle
Hmm. A Papua New Guinea tribesman is suing the The New Yorker magazine over an article penned by MacArthur "Genius" and Pulitzer Prize winning author Jared Diamond. The $10-million suit claims that Diamond falsely accuses the tribesman and another colleague of criminal acts, including murder, in a bloody revenge tale.
While PNG tribesman Daniel Wemp admitted telling stories to Diamond and others, a friend of his said that it's common practice: "When foreigners come to our culture, we tell stories as entertainment. Daniel's stories were not serious narrative, and Daniel had no idea he was being interviewed for publication."
My brother-in-law and his wife spent eight years in PNG in isolated villages. They often recounted how the villagers would tell them stories they insisted were true - in most cases, for good-natured entertainment to see how gullible the Americans were. John and Kim soon learned to recognize and enjoy being the butt of the jokes.
I'm reminded of anthropologist Margaret Mead's acclaimed work "Coming of Age in Samoa," which celebrated sexual openness among Samoan adolescents. Some scholars have dismissed those claims as untrue, arguing that the 23-year-old Mead herself may have been told "stories" by the young people she interviewed.
Jared Diamond is celebrated for his "Guns, Germs, and Steel," but I was appalled by the tunnel-vision approach in his more recent book "Collapse: How societies choose to fail or succeed," in which he claims overuse of resources led to the collapse of several societies and should serve as a warning for our current societies. For an excellent critique of Diamond's "Collapse," read Ron Bailey's article, "Under the spell of Malthus."
Diamond is also celebrated for his ornithological studies in PNG. Maybe he needs to spend more time studying humans to recognize when he's being gulled.
NOTE: For more on Jared Diamond's creative (ab)use of tribal 'lore' see this critique of his Easter Island 'ecocide' theory
Thought Police Muscle Up in Britain
By Hal G. P. Colebatch
BRITAIN appears to be evolving into the first modern soft totalitarian state. As a sometime teacher of political science and international law, I do not use the term totalitarian loosely.
There are no concentration camps or gulags but there are thought police with unprecedented powers to dictate ways of thinking and sniff out heresy, and there can be harsh punishments for dissent.
Nikolai Bukharin claimed one of the Bolshevik Revolution's principal tasks was "to alter people's actual psychology". Britain is not Bolshevik, but a campaign to alter people's psychology and create a new Homo britannicus is under way without even a fig leaf of disguise.
The Government is pushing ahead with legislation that will criminalise politically incorrect jokes, with a maximum punishment of up to seven years' prison. The House of Lords tried to insert a free-speech amendment, but Justice Secretary Jack Straw knocked it out. It was Straw who previously called for a redefinition of Englishness and suggested the "global baggage of empire" was linked to soccer violence by "racist and xenophobic white males". He claimed the English "propensity for violence" was used to subjugate Ireland, Scotland and Wales, and that the English as a race were "potentially very aggressive".
In the past 10 years I have collected reports of many instances of draconian punishments, including the arrest and criminal prosecution of children, for thought-crimes and offences against political correctness.
Countryside Restoration Trust chairman and columnist Robin Page said at a rally against the Government's anti-hunting laws in Gloucestershire in 2002: "If you are a black vegetarian Muslim asylum-seeking one-legged lesbian lorry driver, I want the same rights as you." Page was arrested, and after four months he received a letter saying no charges would be pressed, but that: "If further evidence comes to our attention whereby your involvement is implicated, we will seek to initiate proceedings." It took him five years to clear his name.
Page was at least an adult. In September 2006, a 14-year-old schoolgirl, Codie Stott, asked a teacher if she could sit with another group to do a science project as all the girls with her spoke only Urdu. The teacher's first response, according to Stott, was to scream at her: "It's racist, you're going to get done by the police!" Upset and terrified, the schoolgirl went outside to calm down. The teacher called the police and a few days later, presumably after officialdom had thought the matter over, she was arrested and taken to a police station, where she was fingerprinted and photographed. According to her mother, she was placed in a bare cell for 3 1/2 hours. She was questioned on suspicion of committing a racial public order offence and then released without charge. The school was said to be investigating what further action to take, not against the teacher, but against Stott. Headmaster Anthony Edkins reportedly said: "An allegation of a serious nature was made concerning a racially motivated remark. We aim to ensure a caring and tolerant attitude towards pupils of all ethnic backgrounds and will not stand for racism in any form."
A 10-year-old child was arrested and brought before a judge, for having allegedly called an 11-year-old boya "Paki" and "bin Laden" during a playground argument at a primary school (the other boy had called him a skunk and a Teletubby). When it reached the court the case had cost taxpayers pound stg. 25,000. The accused was so distressed that he had stopped attending school. The judge, Jonathan Finestein, said: "Have we really got to the stage where we are prosecuting 10-year-old boys because of political correctness? There are major crimes out there and the police don't bother to prosecute. This is nonsense."
Finestein was fiercely attacked by teaching union leaders, as in those witch-hunt trials where any who spoke in defence of an accused or pointed to defects in the prosecution were immediately targeted as witches and candidates for burning.
Hate-crime police investigated Basil Brush, a puppet fox on children's television, who had made a joke about Gypsies. The BBC confessed that Brush had behaved inappropriately and assured police that the episode would be banned.
A bishop was warned by the police for not having done enough to "celebrate diversity", the enforcing of which is now apparently a police function. A Christian home for retired clergy and religious workers lost a grant because it would not reveal to official snoopers how many of the residents were homosexual. That they had never been asked was taken as evidence of homophobia.
Muslim parents who objected to young children being given books advocating same-sex marriage and adoption at one school last year had their wishes respected and the offending material withdrawn. This year, Muslim and Christian parents at another school objecting to the same material have not only had their objections ignored but have been threatened with prosecution if they withdraw their children.
There have been innumerable cases in recent months of people in schools, hospitals and other institutions losing their jobs because of various religious scruples, often, as in the East Germany of yore, not shouted fanatically from the rooftops but betrayed in private conversations and reported to authorities. The crime of one nurse was to offer to pray for a patient, who did not complain but merely mentioned the matter to another nurse. A primary school receptionist, Jennie Cain, whose five-year-old daughter was told off for talking about Jesus in class, faces the sack for seeking support from her church. A private email from her to other members of the church asking for prayers fell into the hands of school authorities.
Permissiveness as well as draconianism can be deployed to destroy socially accepted norms and values. The Royal Navy, for instance, has installed a satanist chapel in a warship to accommodate the proclivities of a satanist crew member. "What would Nelson have said?" is a British newspaper cliche about navy scandals, but in this case seems a legitimate question. Satanist paraphernalia is also supplied to prison inmates who need it.
This campaign seems to come from unelected or quasi-governmental bodies controlling various institutions, which are more or less unanswerable to electors, more than it does directly from the Government, although the Government helps drive it and condones it in a fudged and deniable manner.
Any one of these incidents might be dismissed as an aberration, but taken together - and I have only mentioned a tiny sample; more are reported almost every day - they add up to a pretty clear picture.
Political correctness is most pervasive in universities and colleges but I rarely report the incidents concerned here as I have a separate blog for educational matters.
American "liberals" often deny being Leftists and say that they are very different from the Communist rulers of other countries. The only real difference, however, is how much power they have. In America, their power is limited by democracy. To see what they WOULD be like with more power, look at where they ARE already very powerful: in America's educational system -- particularly in the universities and colleges. They show there the same respect for free-speech and political diversity that Stalin did: None. So look to the colleges to see what the whole country would be like if "liberals" had their way. It would be a dictatorship.
For more postings from me, see TONGUE-TIED, GREENIE WATCH, EDUCATION WATCH INTERNATIONAL, FOOD & HEALTH SKEPTIC, GUN WATCH, SOCIALIZED MEDICINE, AUSTRALIAN POLITICS, DISSECTING LEFTISM, IMMIGRATION WATCH INTERNATIONAL and EYE ON BRITAIN. My Home Pages are here or here or here. Email me (John Ray) here. For readers in China or for times when blogger.com is playing up, there is a mirror of this site here.