Ted makes no bones about the fact that the blog is part of the Manhattan Institute, a well-known, well-right-of-center think tank. I've got nothing against the Manhattan Institute and sometimes have liked some proposals that have floated out of there. I've had friends who have put in some time there.
I just disagree with this particular defense of ICE. The government shouldn't be deporting citizens, period, full stop. The only question is whether our reaction should be a facepalm at the incompetence or outrage at it, and the magnitude of the consequence of the incompetence here puts me in a position of presumptive outrage. Ted's argument doesn't change that position, at least not for me; evidence he links to mitigates it just a little bit.
The Manhattan Institute blog linked to above by Ted (who I think is the author of the linked post) urges caution before reaching outrage. I do suggest that Readers go there and get a different perspective on the issue. Nevertheless, my Outrage-o-meter is still working at full tilt. I'm not persuaded by the idea that maybe the young Ms. Turner didn't protest being deported and therefore ICE had no clue about what it was doing. I'm more persuaded by hints that perhaps she was romantically involved with someone that had a connection to Colombia and therefore might have wanted to have been there; that's something I can understand better. I can understand her doing her best to make a go of it in Colombia once there -- the process probably convinced her that she would not be able to return home to the U.S., maybe ever, so she'd have to do something to survive. Engineering one's own deportation to be with a boyfriend still seems like something that even a routine amount of process should have caught, though: they took her fingerprints but apparently didn't use that information in any way; they apparently never seemed to catch on to the fact that she spoke no Spanish. Is there no communication with an ICE detainee under review for deportation? Are there no lawyers, no hearings, no interviews? I don't practice immigration law, but I'm pretty sure that there is at least one hearing involved before someone is deported.
They could have compared the fingerprints they took from their detainee with the fingerprints of their wanted suspect and found they did not match. They could have taken notice of her fluent and American-accented English and apparent inability to communicate in Spanish and concluded that it was unlikely that she was actually from a country whose dominant language is Spanish and not English.
And the idea that someone was going to be deported to a foreign nation and would not in some way protest, even if they did not want to reveal their true identity, is ludicrous.
The line between a factual representation and puffery is blurry. What you understand to be an implied representation of fact, I might interpret as non-substantive fluff.
That's why there are juries. Made up of (mostly) laypeople.
No, I don't think so. Logistically, an advance head count is really only needed for two purposes: one, if I do go ahead and negotiate a group rate (is everyone good with the Hilton, off the Strip?) and two, to make a dinner-and-drinks reservation. If we had two-thirds of the people from the masthead show up, and one or two very with their spouses, that's between thirty to forty people -- so that will require calling ahead and getting them to set aside a room, on a busy weekend because I don't think simply crashing a place is going to work out smoothly.
This is particularly true for publicly-traded corporations; the public can freely buy and sell stock in them and therefore the public is entitled to truthful and accurate disclosures of what the corporation does with its money.
My wife's opinion is that one is clearly superior to the other. But come to think of it, she's never actually told me which of the two is her preference...
If I were a judge in Nelson's position, I would do exactly what he did -- set out all the policy reasons why it's a bad decision and a bad result, then say, "But I am bound by the law in its current state, so I have to rule in a way that is clearly and obviously bad for society in general and contrary to the Constitution. Appeal me! Please!"
I'll be checking in rather late-ish on May 25, and checking out at a reasonable time of the late morning on May 28. My reservation is at the LVH, formerly the Las Vegas Hilton. Sorry if I was too oblique earlier. And I dislike being a dictator about it, but someone's got to make the executive decision and the more I thought about it, the more I figured the date just has to be something where someone pulls the trigger so I did.
I haven't given much thought yet to much more than the dates and sporting a bowler hat to identify myself as a Leaguester. It would be fun if we all wore bowlers, wouldn't it?
Next will come finding a spot to meet at. There will inevitably be some stragglers and I may get there late myself Friday night, so I'd suggest we meet Saturday. I've not yet considered a place for that and I'm open to suggestions. It need not be at the Hilton and I suspect some people will prefer to stay elsewhere. I know I'm terribly unfashionable picking an off-Strip hotel. But the monorail takes you right from the Hilton to near enough to anywhere you might want to be.
And yes, I'm going to republish a reminder Thursday because I see the usual flow of new posts is bumping this bad boy far enough down the page that it will get set aside. That's only to be expected, the results from Iowa tonight being what they are.
Well, I'm so excited about this, I already booked my room; we had some Vegas.com gift cards and I used them up. So I will be there that weekend no matter what.
I'm not opposed to the idea of frequent commenters from the community joining in the fun. But I would like to focus on those who are serious about committing to doing this thing. It sounds like you like the idea but couldn't make it anyway -- which is cool, no time or place is going to work for everyone. But if you're not likely to really make it, please don't be upset if Burt Likko Your Cruise Director doesn't take your schedule or budget into consideration.
She may well have been; she had a history as an impact litigator, after all. Let's assume, arguendo, that she did apply to University of Iowa spoiling for this exact lawsuit. So what if she laid a trap? If she did, the University walked -- no, ran -- right into it. We're not talking about a deer, responding on instinct here. We're talking about four dozen lawyers collectively unable to resist the impulse to violate the Constitution becasue of their own political preferences.
Besides, I can justify passing up the Ave Maria offer to take a shot at Iowa. A tenure-track position at Ave Maria School of Law is simply not as prestigious, and may not have paid nearly as well, as a non-tenure track position at the University of Iowa. And a non-tenure track position at Iowa would have given her a leg up when a tenure track position at Iowa eventually did open up. You or I might not have made that decision, but it's hardly an irrational decision to have made, especially if she still had opportunities to make a living outside of academia.
Oh, and yes I am handling a 1st Amendment discrimination case right now. The blur in my current case is a whistleblower dimension, and I have a credible opportunityto save my client's job rather than get him recovery for losing it. That makes the issue of my fee unclear as I usually take a plaintiff's employment case on contingency, but I'd much rather solve that problem amicably with a still-employed client than collect a contingent fee after him being out of work for two or more years while I'm litigating his wrongful termination case.
Well, since you asked. Indeed, I did gloss the qualified immunity issue because my intended focus here was to address the policy question of the appropriate limits of hiring discretion in a public university setting, and that seemed to me to be based more strongly on the existence of the tort rather than the Dean's constructive knowledge of the First Amendment and thus qualified immunity. I don't think that issue (whether the First Amendment ought to exclude a faculty candidate's prior political activities from consideration in making a hiring decision) is at all clear, and strong arguments can be made on both sides. And I don't think one necessarily needs a legal education to opine on that issue, so that was where I wanted to put my editorial focus.
As to the qualified immunity issue, the Dean herself appears to have personally favored (although not by a whole lot) Wagner's candidacy, but the opinon picks out evidence from the record that makes her appear to be almost passively deferential to the faculty's collective decision-making, and hints that the guy who used to be a Blackmun clerk was something of an ideological bully who rallied the faculty around the "no conservatives allowed" banner. Since this is a review of a summary judgment, the Eighth Circuit assumes this theory to be true, and cherry-picks the evidence from the record that supports it. Reading between the lines, I intuit the University's defense being Wagner's answers to a set of questions distingusihing between writing and analysis as within the scope of the job as its proffered nondiscrimiantory basis; they'll ultimately say that she bungled those questions and therefore simply did not understand what she was being hired to do, which they say would be a legitimate reason not to have hired her at all and if it were true, would certainly merit sober contemplation. Evaluating the evidentiary strength of that defense would require a comprehensive understanding of the fruits of discovery, which is not something I think this opinion permits us to do because of the lens through with the Court is obliged to review the case.
Again reading between the lines, my suspicion is that the Dean likely actually believed that she could decide as she pleased on pretty much whatever basis she wanted whether to hire or not hire a faculty member -- in a way that she probably would not have felt free hiring a staff member like a custodian or a security guard. And yes, I think that was a mistake. She should have considered the First Amendment issue much more carefully -- she is the dean of and a faculty member of a <i>law school</i>, which means she is herself a lawyer and ought to be at least minimally aware that she is nominally in command of a public institution bound by the Constitution. In my mind, that elevates the standard to which she is held for qualified immunity purposes because even if her practice and academic areas of study are other than these, she must have taken at least one Constitutional law class at some point in her career.
And something about her vision of her job as Dean to be simply to act as the rubber stamp for the faculty's collective decision-making strikes me as wrong. I'm uncertain if we're past the line of poor leadership into ignorance of the law is that there seems to have been no effort whatsoever by the Dean to have solicited opinions about Ms. Wagner focusing on her objective qualifications rather than her political opinions. Being a poor leader is not (and ought not be) a tort. Being ignorant of law one ought to understand is a different matter entirely.
As I wrote in the OP, while I think the decision is ultimately right, it's not a crystal-clear call. The fact that it's a law school is what makes me come down on the plaintiff's side. There is some legal support for the idea that at least some employment decisions are discretionary enough that consideration of political opinion might be legitimately considered, particularly concerning the granting of tenure to an existing faculty member. But this wasn't a decision about granting tenure. The Eighth Circuit made much of the idea that there was greater deference to positions requiring the handling of confidential information or which involved making policy for the institution, borrowing from case law developed in the First Circuit. So there are at least three kinds of employment decision, two of which relate to hiring and firing, where there was at least a gloss of support. While the prior case law isn't exactly on point, I can at least see a degree of confusion about what the scope of discretion might be.
Given that we're talking abut the Dean of a <i>law school</i>, holding her to an standard of elevated knowledge of the law is appropriate, so I'd have concurred with the result as to the qualified immunity issue -- the Dean ought to have known that she was treading on thin ice by allowing a decision to go forward based on a candidate's political activity. But if this were, for instance, the psychology department rather than the law school, the same reasoning wouldn't apply. The whole point of the qualified immunity doctrine is that the decisionmaker shouldn't be obligated to go do a bunch of legal research (or to hire lawyers to do it for her) in order to understand what to do. If there is confusion within the law itself, the decisionmaker should be given the benefit of the doubt and immunized from personal liability. If this weren't the law school, I would have been a lot more willing to find in the Dean's favor on qualified immunity grounds. But this was in a law school and it is reasonable and fair to hold a lawyer accountable for knowing the law, or at least being able to spot an issue and then asking one of her colleagues who does make Constitutional law a field of study a few questions about it. Spotting issues, after all, is a core activity of a law school.
...religious freedom is protected by the First Amendment, political/ideological freedom is not.
I don't think this is correct. Freedom of political expression is at the very core of the First Amendment.
That's the difference between a claim against a public employer and a private employer -- a public employer, at least in some circumstances, must isolate not only religious but also political expression from its employment decisionmaking. Public employers are not covered by Title VII but are covered by the First Amendment by way either of the Constitution directly or statutes; in Ms. Wagner's case, she appears to have successfully articulated a 1983 claim for violation of her First Amendment rights.
Most private employers are covered by Title VII, for which the statement above would be correct -- it protects religious identity but not political identity. The discussion following suggests that anti-homosexual animus may derive from a source which is blurry -- is one anti-homosexual as a result of adherence to a religion that condemns homosexuality, or as a result of adherence to a political ideology of social conservatism? This is a murky subject indeed, and one that is ripe for unfairness to both religious and conservative people, neither category of whom are necessarily anti-homosexual to begin with.
Were I an attorney charged with either prosecuting or defending a claim involving this issue, I would focus on the words used in the anti-homosexual remarks. I would expect my opposing counsel to do the same -- while we'd both try to make those words fit in to whichever version favored our respective clients, there's a reasonable chance that we'd ultimately have to ask twelve people who weren't smart enough to figure out how to get out of jury duty to make the decisive judgment call. And if it worked out that a jury deciding that fuzzy issue was the difference between winning and losing, that's a wild card more powerful than my comfort zone and I'd be telling my client that we need to have some serious out-of-court settlement discussions with the other side.
What year was this? I know it was written on "Monday morning," but of what day, month, and year? In the letter, Paul refers to his four terms of service in Congress, but he's selling stuff, suggesting that he's out of office (or breaking those obstructionist laws) at the time he writes this, meaning some time between 1985 and 1997. He also references an apparently recent speech by President Bush, which could be either Bush the Elder or Bush the Younger, but again given that he's selling stuff, I'm thinking it's Bush the Elder, putting the letter some time between 1988 and 1992. Further, the use of Courier font, the liberal use of underlines and highlights, were all hallmarks of political mass mailing techniques that were in use in that era; proportional fonts were thought of as 'too slick'. Finally, there is quite a lot of paranoia about anti-counterfeiting strips in the money and IIRC, those strips made their first appearnaces in twenties and hundreds in the early Nineties (and were a subject of paranoia by Fox Mulder on the X-Files, too, demonstrating the gravity of Rep. Paul's concerns).
Reading it now, looking like it was hastily banged out on an ancient IBM Selectric, erratically underlined and pre-highlighted, evoking images of bizarre and intrusive government activity that has never happened, appealing to fear and ignorance, and concluding with an invitation to spend money buying more screeds just like this one -- it looks positively unhinged.
This, precisely. The Framers (at least most of them, most of the time) understood this. We should understand it today despite the superficial appeal of pleasant religious celebrations. The government needs must be neutral, neither endorsing religion nor condemning it. Silence is not hostility, and indeed silence is often wisdom. Let our government be wise, and therefore silent, about matters of faith.
If that's how the GOP defines itself, then yes, it's eventually going to ideologically purify itself out of existence, kind of a reverse homeopathy of politics. But if that's what the party faithful insist on happening, then the rest of us cast-off soon-to-be-former Republicans can go and form our own party, talk the Libertarians down from the belfry, or the Democrats can offer a sufficiently broad policy platform to attract us, and the Republicans can go the way of the Whigs.
I've long ago given up on searching for perfection in politics. "Good enough" is the threshold for excellence, and "least bad" is the threshold for acceptability. Ron Paul looks like the least bad choice right now, at least to you.
On “She Was An American Girl Raised On Promises (Of Due Process)”
Ted makes no bones about the fact that the blog is part of the Manhattan Institute, a well-known, well-right-of-center think tank. I've got nothing against the Manhattan Institute and sometimes have liked some proposals that have floated out of there. I've had friends who have put in some time there.
I just disagree with this particular defense of ICE. The government shouldn't be deporting citizens, period, full stop. The only question is whether our reaction should be a facepalm at the incompetence or outrage at it, and the magnitude of the consequence of the incompetence here puts me in a position of presumptive outrage. Ted's argument doesn't change that position, at least not for me; evidence he links to mitigates it just a little bit.
"
The Manhattan Institute blog linked to above by Ted (who I think is the author of the linked post) urges caution before reaching outrage. I do suggest that Readers go there and get a different perspective on the issue. Nevertheless, my Outrage-o-meter is still working at full tilt. I'm not persuaded by the idea that maybe the young Ms. Turner didn't protest being deported and therefore ICE had no clue about what it was doing. I'm more persuaded by hints that perhaps she was romantically involved with someone that had a connection to Colombia and therefore might have wanted to have been there; that's something I can understand better. I can understand her doing her best to make a go of it in Colombia once there -- the process probably convinced her that she would not be able to return home to the U.S., maybe ever, so she'd have to do something to survive. Engineering one's own deportation to be with a boyfriend still seems like something that even a routine amount of process should have caught, though: they took her fingerprints but apparently didn't use that information in any way; they apparently never seemed to catch on to the fact that she spoke no Spanish. Is there no communication with an ICE detainee under review for deportation? Are there no lawyers, no hearings, no interviews? I don't practice immigration law, but I'm pretty sure that there is at least one hearing involved before someone is deported.
"
They could have compared the fingerprints they took from their detainee with the fingerprints of their wanted suspect and found they did not match. They could have taken notice of her fluent and American-accented English and apparent inability to communicate in Spanish and concluded that it was unlikely that she was actually from a country whose dominant language is Spanish and not English.
And the idea that someone was going to be deported to a foreign nation and would not in some way protest, even if they did not want to reveal their true identity, is ludicrous.
"
They referred her to ICE in the first place. Immigration issues aren't a local police concern.
"
At least there is some media outrage bout a missing girl who isn't pretty, white, and rich.
On “Montana Dissed Citizens United”
The line between a factual representation and puffery is blurry. What you understand to be an implied representation of fact, I might interpret as non-substantive fluff.
That's why there are juries. Made up of (mostly) laypeople.
On “Leaguefest 2012!”
No, I don't think so. Logistically, an advance head count is really only needed for two purposes: one, if I do go ahead and negotiate a group rate (is everyone good with the Hilton, off the Strip?) and two, to make a dinner-and-drinks reservation. If we had two-thirds of the people from the masthead show up, and one or two very with their spouses, that's between thirty to forty people -- so that will require calling ahead and getting them to set aside a room, on a busy weekend because I don't think simply crashing a place is going to work out smoothly.
On “Montana Dissed Citizens United”
Especially Dumb Money.
"
This is particularly true for publicly-traded corporations; the public can freely buy and sell stock in them and therefore the public is entitled to truthful and accurate disclosures of what the corporation does with its money.
"
My wife's opinion is that one is clearly superior to the other. But come to think of it, she's never actually told me which of the two is her preference...
"
If I were a judge in Nelson's position, I would do exactly what he did -- set out all the policy reasons why it's a bad decision and a bad result, then say, "But I am bound by the law in its current state, so I have to rule in a way that is clearly and obviously bad for society in general and contrary to the Constitution. Appeal me! Please!"
On “You Can’t Change Anything”
Cain at least got some national media to roast him alive. Where was Roemer's press?
On “Leaguefest 2012!”
I'll be checking in rather late-ish on May 25, and checking out at a reasonable time of the late morning on May 28. My reservation is at the LVH, formerly the Las Vegas Hilton. Sorry if I was too oblique earlier. And I dislike being a dictator about it, but someone's got to make the executive decision and the more I thought about it, the more I figured the date just has to be something where someone pulls the trigger so I did.
I haven't given much thought yet to much more than the dates and sporting a bowler hat to identify myself as a Leaguester. It would be fun if we all wore bowlers, wouldn't it?
Next will come finding a spot to meet at. There will inevitably be some stragglers and I may get there late myself Friday night, so I'd suggest we meet Saturday. I've not yet considered a place for that and I'm open to suggestions. It need not be at the Hilton and I suspect some people will prefer to stay elsewhere. I know I'm terribly unfashionable picking an off-Strip hotel. But the monorail takes you right from the Hilton to near enough to anywhere you might want to be.
And yes, I'm going to republish a reminder Thursday because I see the usual flow of new posts is bumping this bad boy far enough down the page that it will get set aside. That's only to be expected, the results from Iowa tonight being what they are.
"
Well, I'm so excited about this, I already booked my room; we had some Vegas.com gift cards and I used them up. So I will be there that weekend no matter what.
"
I'm not opposed to the idea of frequent commenters from the community joining in the fun. But I would like to focus on those who are serious about committing to doing this thing. It sounds like you like the idea but couldn't make it anyway -- which is cool, no time or place is going to work for everyone. But if you're not likely to really make it, please don't be upset if Burt Likko Your Cruise Director doesn't take your schedule or budget into consideration.
"
It's the flight which would be the significant expense; the hotel should be dirt cheap if you book this far in advance.
On “The Tort of Political Discrimination”
She may well have been; she had a history as an impact litigator, after all. Let's assume, arguendo, that she did apply to University of Iowa spoiling for this exact lawsuit. So what if she laid a trap? If she did, the University walked -- no, ran -- right into it. We're not talking about a deer, responding on instinct here. We're talking about four dozen lawyers collectively unable to resist the impulse to violate the Constitution becasue of their own political preferences.
Besides, I can justify passing up the Ave Maria offer to take a shot at Iowa. A tenure-track position at Ave Maria School of Law is simply not as prestigious, and may not have paid nearly as well, as a non-tenure track position at the University of Iowa. And a non-tenure track position at Iowa would have given her a leg up when a tenure track position at Iowa eventually did open up. You or I might not have made that decision, but it's hardly an irrational decision to have made, especially if she still had opportunities to make a living outside of academia.
"
Oh, and yes I am handling a 1st Amendment discrimination case right now. The blur in my current case is a whistleblower dimension, and I have a credible opportunityto save my client's job rather than get him recovery for losing it. That makes the issue of my fee unclear as I usually take a plaintiff's employment case on contingency, but I'd much rather solve that problem amicably with a still-employed client than collect a contingent fee after him being out of work for two or more years while I'm litigating his wrongful termination case.
"
Well, since you asked. Indeed, I did gloss the qualified immunity issue because my intended focus here was to address the policy question of the appropriate limits of hiring discretion in a public university setting, and that seemed to me to be based more strongly on the existence of the tort rather than the Dean's constructive knowledge of the First Amendment and thus qualified immunity. I don't think that issue (whether the First Amendment ought to exclude a faculty candidate's prior political activities from consideration in making a hiring decision) is at all clear, and strong arguments can be made on both sides. And I don't think one necessarily needs a legal education to opine on that issue, so that was where I wanted to put my editorial focus.
As to the qualified immunity issue, the Dean herself appears to have personally favored (although not by a whole lot) Wagner's candidacy, but the opinon picks out evidence from the record that makes her appear to be almost passively deferential to the faculty's collective decision-making, and hints that the guy who used to be a Blackmun clerk was something of an ideological bully who rallied the faculty around the "no conservatives allowed" banner. Since this is a review of a summary judgment, the Eighth Circuit assumes this theory to be true, and cherry-picks the evidence from the record that supports it. Reading between the lines, I intuit the University's defense being Wagner's answers to a set of questions distingusihing between writing and analysis as within the scope of the job as its proffered nondiscrimiantory basis; they'll ultimately say that she bungled those questions and therefore simply did not understand what she was being hired to do, which they say would be a legitimate reason not to have hired her at all and if it were true, would certainly merit sober contemplation. Evaluating the evidentiary strength of that defense would require a comprehensive understanding of the fruits of discovery, which is not something I think this opinion permits us to do because of the lens through with the Court is obliged to review the case.
Again reading between the lines, my suspicion is that the Dean likely actually believed that she could decide as she pleased on pretty much whatever basis she wanted whether to hire or not hire a faculty member -- in a way that she probably would not have felt free hiring a staff member like a custodian or a security guard. And yes, I think that was a mistake. She should have considered the First Amendment issue much more carefully -- she is the dean of and a faculty member of a <i>law school</i>, which means she is herself a lawyer and ought to be at least minimally aware that she is nominally in command of a public institution bound by the Constitution. In my mind, that elevates the standard to which she is held for qualified immunity purposes because even if her practice and academic areas of study are other than these, she must have taken at least one Constitutional law class at some point in her career.
And something about her vision of her job as Dean to be simply to act as the rubber stamp for the faculty's collective decision-making strikes me as wrong. I'm uncertain if we're past the line of poor leadership into ignorance of the law is that there seems to have been no effort whatsoever by the Dean to have solicited opinions about Ms. Wagner focusing on her objective qualifications rather than her political opinions. Being a poor leader is not (and ought not be) a tort. Being ignorant of law one ought to understand is a different matter entirely.
As I wrote in the OP, while I think the decision is ultimately right, it's not a crystal-clear call. The fact that it's a law school is what makes me come down on the plaintiff's side. There is some legal support for the idea that at least some employment decisions are discretionary enough that consideration of political opinion might be legitimately considered, particularly concerning the granting of tenure to an existing faculty member. But this wasn't a decision about granting tenure. The Eighth Circuit made much of the idea that there was greater deference to positions requiring the handling of confidential information or which involved making policy for the institution, borrowing from case law developed in the First Circuit. So there are at least three kinds of employment decision, two of which relate to hiring and firing, where there was at least a gloss of support. While the prior case law isn't exactly on point, I can at least see a degree of confusion about what the scope of discretion might be.
Given that we're talking abut the Dean of a <i>law school</i>, holding her to an standard of elevated knowledge of the law is appropriate, so I'd have concurred with the result as to the qualified immunity issue -- the Dean ought to have known that she was treading on thin ice by allowing a decision to go forward based on a candidate's political activity. But if this were, for instance, the psychology department rather than the law school, the same reasoning wouldn't apply. The whole point of the qualified immunity doctrine is that the decisionmaker shouldn't be obligated to go do a bunch of legal research (or to hire lawyers to do it for her) in order to understand what to do. If there is confusion within the law itself, the decisionmaker should be given the benefit of the doubt and immunized from personal liability. If this weren't the law school, I would have been a lot more willing to find in the Dean's favor on qualified immunity grounds. But this was in a law school and it is reasonable and fair to hold a lawyer accountable for knowing the law, or at least being able to spot an issue and then asking one of her colleagues who does make Constitutional law a field of study a few questions about it. Spotting issues, after all, is a core activity of a law school.
"
I don't think this is correct. Freedom of political expression is at the very core of the First Amendment.
That's the difference between a claim against a public employer and a private employer -- a public employer, at least in some circumstances, must isolate not only religious but also political expression from its employment decisionmaking. Public employers are not covered by Title VII but are covered by the First Amendment by way either of the Constitution directly or statutes; in Ms. Wagner's case, she appears to have successfully articulated a 1983 claim for violation of her First Amendment rights.
Most private employers are covered by Title VII, for which the statement above would be correct -- it protects religious identity but not political identity. The discussion following suggests that anti-homosexual animus may derive from a source which is blurry -- is one anti-homosexual as a result of adherence to a religion that condemns homosexuality, or as a result of adherence to a political ideology of social conservatism? This is a murky subject indeed, and one that is ripe for unfairness to both religious and conservative people, neither category of whom are necessarily anti-homosexual to begin with.
Were I an attorney charged with either prosecuting or defending a claim involving this issue, I would focus on the words used in the anti-homosexual remarks. I would expect my opposing counsel to do the same -- while we'd both try to make those words fit in to whichever version favored our respective clients, there's a reasonable chance that we'd ultimately have to ask twelve people who weren't smart enough to figure out how to get out of jury duty to make the decisive judgment call. And if it worked out that a jury deciding that fuzzy issue was the difference between winning and losing, that's a wild card more powerful than my comfort zone and I'd be telling my client that we need to have some serious out-of-court settlement discussions with the other side.
"
Not familiar with that case. Linky, per favore?
On “Enough Already with the Ron Paul This and the Ron Paul That”
What year was this? I know it was written on "Monday morning," but of what day, month, and year? In the letter, Paul refers to his four terms of service in Congress, but he's selling stuff, suggesting that he's out of office (or breaking those obstructionist laws) at the time he writes this, meaning some time between 1985 and 1997. He also references an apparently recent speech by President Bush, which could be either Bush the Elder or Bush the Younger, but again given that he's selling stuff, I'm thinking it's Bush the Elder, putting the letter some time between 1988 and 1992. Further, the use of Courier font, the liberal use of underlines and highlights, were all hallmarks of political mass mailing techniques that were in use in that era; proportional fonts were thought of as 'too slick'. Finally, there is quite a lot of paranoia about anti-counterfeiting strips in the money and IIRC, those strips made their first appearnaces in twenties and hundreds in the early Nineties (and were a subject of paranoia by Fox Mulder on the X-Files, too, demonstrating the gravity of Rep. Paul's concerns).
Reading it now, looking like it was hastily banged out on an ancient IBM Selectric, erratically underlined and pre-highlighted, evoking images of bizarre and intrusive government activity that has never happened, appealing to fear and ignorance, and concluding with an invitation to spend money buying more screeds just like this one -- it looks positively unhinged.
On “A Very Merry Ron Paul Christmas”
This, precisely. The Framers (at least most of them, most of the time) understood this. We should understand it today despite the superficial appeal of pleasant religious celebrations. The government needs must be neutral, neither endorsing religion nor condemning it. Silence is not hostility, and indeed silence is often wisdom. Let our government be wise, and therefore silent, about matters of faith.
On “Newt Gingrich Commits the Heinous Crime of Being Mundanely Rational”
If that's how the GOP defines itself, then yes, it's eventually going to ideologically purify itself out of existence, kind of a reverse homeopathy of politics. But if that's what the party faithful insist on happening, then the rest of us cast-off soon-to-be-former Republicans can go and form our own party, talk the Libertarians down from the belfry, or the Democrats can offer a sufficiently broad policy platform to attract us, and the Republicans can go the way of the Whigs.
On “Ron Paul, Racism, and War”
I've long ago given up on searching for perfection in politics. "Good enough" is the threshold for excellence, and "least bad" is the threshold for acceptability. Ron Paul looks like the least bad choice right now, at least to you.