12 Ways to take action in the wake of the tragedy in Orlando


Posted on June 14th, 2016 by Elizabeth Boylan

12 Ways to take action in the wake of the tragedy in Orlando

Sunday morning’s hate crime against the LGBTQ Latinx community has left many people, especially folks in the Queer community, feeling a range of intense emotions.  We at the Center for Gender and Sexuality Law believe that feeling those emotions is important, and channeling emotion into passionate action is a positive way to enact change in our world.

We offer here 12 ways that individuals can take action, and turn emotion into mobilization.

1) If you have money, consider donating to support the victims of the attack at Pulse Nightclub, here:  https://www.gofundme.com/PulseVictimsFund

2) If you have money, consider donating to LGBTQ Organizations, specifically those that work with Latinx communities.  Four that we love are:  The Translatin@ Coalition: http://www.translatinacoalition.org/  Latino GLBT History Project: http://www.latinoglbthistory.org/, Unity Coalition: http://www.unitycoalition.org/Workshops.html, and the Latino Commission on AIDS: https://latinoaids.org/.

3) If you do not have money, consider volunteering with one of the organizations noted above, or an organization based in your community that is devoted to supporting the LGBTQ community, and fighting hate and injustice against the LGBTQ community.  Six that are based in New York are The LGBT Center: https://gaycenter.org/, The Audre Lorde Project: http://alp.org/, The Ali Forney Center:http://www.aliforneycenter.org/, GMHC: http://www.gmhc.org/, The Brooklyn Community Pride Center: http://lgbtbrooklyn.org/, and The Sylvia Rivera Law Project: http://srlp.org/.

4) Fight the discrimination that shames sexually active MSM “Men who have sex with men” and prohibits them from donating blood.  This discrimination is rooted in homophobia and serophobia and is an injustice to all people.  A petition arguing that all MSM to be able to donate blood may be found here: https://www.credomobilize.com/petitions/tell-the-fda-end-the-ban-on-blood-donations-from-gay-men

5) If you are able to donate blood and feel comfortable doing so, please consider donating.  Donation locations in New York may be found here through the New York Blood Center: http://nybloodcenter.org/donate-blood/where-to-donate-today/, to find donation locations outside of New York, please check in with the American Red Cross website: http://www.redcrossblood.org/donating-blood/tips-successful-donation

6) If you feel safe and comfortable doing so, attend a vigil in your community.  Many LGBTQ Centers have organized vigils to enable community members to come together and honor the dead, and to organize and plan for ending future violence against the LGBTQ Community.  In New York, vigils were held at the LGBT Community Center, and at the Stonewall Inn, and people have begun using the public space outside of these locations to honor those whose lives were lost: http://www.thestonewallinnnyc.com/StonewallInnNYC/Welcome.html.  Tonight, June 14th, there will be one at Grand Army Plaza, in Brooklyn: https://www.facebook.com/events/568689859977577/.

7) If you do not feel safe going to a larger vigil, as there is sometimes an increased police presence in these places and many marginalized communities are disproportionately scrutinized by police, consider going to an alternative vigil.   Some small organizations are putting together smaller vigils, and through community forums (Queer Exchange on Facebook, Listservs, et cetera) many individuals are using these online spaces to develop dialogue around mourning and creating safe spaces for expressing grief.

8) Check out the National Coalition of AntiViolence Programs: http://www.avp.org/about-avp/coalitions-a-collaborations/82-national-coalition-of-anti-violence-programs, and the New York City AntiViolence Project: http://www.avp.org/, and get involved.  The NCAVP and the AVP are committed to ending violence, and specifically focus on ending violence against minority communities and communities more prone to violence as a result of systemic injustice.

9) While the primary issue at the heart of the Orlando massacre is homophobia, it also represents the single largest shooting in American History. We recognize that changes in gun control legislation could reduce the impact of gun violence in the United States.  We encourage you to visit the Law Center to Prevent Gun Violence, and learn through them how you may get involved, if you choose to, in creating change in gun legislation and law: http://smartgunlaws.org/.

10) Do not counter hate with further hate.  Following Sunday morning’s massacre, we have seen a great deal of violence and anger against the Muslim community, due to Islamophobia, and misunderstanding about the ways in which some individuals use religion to justify violence against others.  Fight Islamophobia, and acknowledge and correct people when they blame this event on faith, or use incorrect, harmful and hateful terms like “Radical Islam.”  Support the Islamic community, and learn more by visiting the Council on American Islamic Relations, here: http://www.islamophobia.org/.

11) Reach out to friends in the LGBTQ community and offer support.  Discuss what happened, and how you feel about it.  Discuss things that you want to see happen, and begin making plans to enact change.

12) Practice self-care.  Grief is an important means of processing tragedy, and it is important to allow yourself to process any emotions that you are feeling about the tragedy in Orlando.  Learn about the grieving process at helpguide.org: http://www.helpguide.org/articles/grief-loss/coping-with-grief-and-loss.htm.  In the words of a wise friend, “Healing is not a linear process.”  Take time, take care, and stay safe.

 

We are pleased to announce that we are seeking an Associate Director to work with the Public Rights/Private Conscience Project at Columbia Law School.

The job description is as follows below, and may be accessed via Idealisthttp://www.idealist.org/view/job/xjk6T6cT55Cp/

Job Description

Columbia Law School seeks an Associate Director to serve as part of the project’s onsite team reporting to Elizabeth Reiner Platt, Project Director of the Public Rights/Private Conscience Project at Columbia Law School.

The Public Rights / Private Conscience Project is a unique law and policy think tank based at Columbia Law School. It’s mission is is to conceptualize and operationalize new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and to disseminate those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.

Responsibilities

Programming

  • Conduct legal and policy analyses of state and federal proposals that would expand the scope and nature of religious liberty rights.
  • Play a key role in formulating and executing a pilot project to engage state attorneys and solicitors general around the tension between sexual and reproductive rights/liberty and religious liberty, with the goal of sparking state-level outcomes from the relevant offices.
  • Facilitate participation of academic partners in efforts to publicize the impact of religious exemption laws on PRPCP’s focus issues and communities.
  • Work with the PRPCP Director to build our capacity to actively participate in the multiple advocacy coalitions forming around religious exemption work, particularly in the reproductive rights and LGBT rights communities, and to undertake more collaborative work with advocacy organizations.
  • Maintain PRPCP’s presence on social media, including Facebook, Twitter, and regular content posting to PRPCP’s blog. (10%).
  • Assist in logistical planning for meetings, convenings, and conferences.
    Management & Funding

Work with Director to identify potential partners for programs, projects, and initiatives.

  • Assist in drafting grant proposals and annual budgets for Program initiatives.
  • Assist in preparing grant reports and other compliance documents required by Columbia Law School or Columbia University.

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

 

June 1, 2016 – The Public Rights/Private Conscience Project (PRPCP) at Columbia Law School is delighted to announce that Elizabeth Reiner Platt has been appointed as the Project’s Director, effective today.

Liz Platt joined the PRPCP last November as Associate Director, and has led our efforts to address the constitutional infirmities of legislation introduced in scores of state legislatures that would create overly broad religious liberty rights.

A graduate of NYU School of Law, Liz was awarded a Flora S. and Jacob L. Newman Prize (Outstanding Note for the Review of Law & Social Change) for her Note, Gangsters To Greyhounds: The Past, Present, And Future Of Offender Registration, 37 N.Y.U. Rev. L. & Soc. Change 727 (2013).  After law school she was a Carr Center for Reproductive Justice Fellow at A Better Balance, and then worked as a staff attorney with MFY Legal Services representing clients with mental illness.  She currently serves on the New York City Bar Association Sex and Law Committee and the Urban Justice Center Sex Workers Project Host Committee.

“I am excited to have Liz succeed Kara Loewentheil as Director of the PRPCP, leading the preeminent academic think tank conceptualizing the constitutional and policy implications of religious exemptions and their relationship to reproductive and sexual liberty, and racial, sexual and sexual orientation-based justice,” said Professor Katherine Franke, the PRPCP’s Faculty Director.

“I’m delighted to take on this new role at the PRPCP,” said Liz Platt. “It’s clearly a critical moment to examine the tension between religious rights and sexual, racial, and reproductive freedoms, and I look forward to continuing and expanding the Project’s important work at the intersection of law, policy, and academic scholarship.”

For more about Liz Platt go here.  The Public Rights/Private Conscience Project’s website is here.

Silent Spring: Where have the queer voices gone?


Posted on April 22nd, 2016 by Elizabeth Boylan

An Earth Day Blog Post


There was a strange stillness…. It was a spring without voices.  On the mornings that had once throbbed with the dawn chorus of robins, catbirds, doves, jays, wrens, and scores of other bird voices there was now no sound; only silence lay over the fields and wood and marsh….

….A grim specter has crept upon us almost unnoticed…What has already silenced the voices of spring in countless towns in America?[1]


When I was 17, I took the train in from Long Island to a gay pride parade in New York City, and it was like the rainforest: there was so much beauty, diversity, and richness in community and joy in difference that I could see.  People cried into megaphones, “We’re here, we’re queer, get used to it!” asserting the rights of LGBTQ people to exist, and to be acknowledged.  It was a call to action for queers to be present, and for recognition by non-queers: it spoke to the diversity inherent in humanity.

Diversity in society and in culture is analogous to biodiversity – the ways in which individual organisms relate with communities, their habitat, and their concentric and overlapping biotic systems is parallel to how humans interact with one another in an increasingly globalized world.

In 1962, Rachel Carson published Silent Spring.  Carson opens with a cautionary fable: she describes a world gone quiet, devoid of natural diversity, where people fall ill quickly and mysteriously, and towns and communities implode from the impact of death and loss.  Carson’s book was a thoughtful response and outcry against the ways in which the United States Department of Agriculture and Agribusiness’ uses of chemical pesticides for the purpose of controlling insect, fungal, and bacterial populations was having unintended consequences on myriad ecosystems in the United States.

The use of chemical pesticides had been touted as a ‘solution’ to dealing with pest populations of insects, fungi and bacteria by the United States Department of Agriculture.  These solutions, included substances such as dichlorodiphenyltrichloroethane (DDT), dichlorodiphenyldichloroethane (DDD), and benzene hexachloride (BHC).  As a solution, it is simple: spray chemicals, and the pests will die; however, this equation failed to recognize how complicated the algorithms of ecology are, and as such, was wholly unbalanced.

The unintended results of this solution were myriad: plants and animals produced for farms by human consumption were ultimately inedible and toxic to humans, due to biomagnification: the phenomena wherein contaminant concentrations increase in accumulation as it passes up the food chain through multiple trophic levels.[2]  Biomagnification also accounted for declines in bird populations, as the high concentrations of DDT in their bodies weakened the shells of their eggs, nullifying their viability. The presence of DDD and BHC in soil systems inhibited nitrogen-fixation by bacteria that have positive mutualistic relationships with plants. Upon using pesticides to eradicate fire-ants in the Southern U.S., farmers came to realize that the fire-ants had been consuming boll-weevils, which can decimate cotton crops[3]; The bacteria and fire-ant’s value were only conspicuous by their absence.

What was deemed to be the “problem” that the United States responded to with the widespread use of insecticides were the existence of pest insect, fungal and bacterial populations in certain agricultural sectors.  This maybe wasn’t so much a ‘problem’ but a symptom of a larger issue – – a system out of balance.  By attempting to selectively micromanage this facet – to “treat the symptom” as it were – the United States Department of Agriculture initiated a ripple effect that reverberated through the larger ecosystem.

By focusing on only one element of a system in seeking a solution, the Government lost the forest for the trees… or, the ecosystem for the insects. What was intended to help one small group, ultimately led to detrimental and lethal effects on multiple organisms and communities as a result of feedback loops not taken into account in the development of a solution.

In meditating on Carson’s parable, I’m thinking about the parallels that exist between the organisms harmed and silenced by agricultural interventions in the early and mid-20th century, and the queer communities and individuals threatened and silenced by recent court decisions and legislation in the United States.

On June 26th, 2012, the Supreme Court ruled in Obergefell v. Hodges “The Fourteenth Amendment requires a State to license a marriage between two people of the same sex and to recognize a marriage between two people of the same sex when their marriage was lawfully licensed and performed out-of-State”.  This has been touted as a landmark decision, and people saw this as a “solution” to the issue of LGBTQ Rights in the United States.  A man could marry another man, and a woman could marry another woman, and their legal and contractual union had to be recognized by states.

The legitimizing and legalization of same-sex marriage by the federal government seems far too simple a solution to something that is not really a “problem,” but one element that is a symptom of a larger issue – a system out of balance.

The system out of balance is the way that federal and state laws and policies consistently value the rights and privileges of straight, heteronormative people over LGBTQ persons in the United States.  Homophobia, biphobia, transphobia, and queerphobia loom large, and oppress, marginalize and silence people in the LGBTQ community.  These forces flatten and oppress voices, and the violence that accompanies these forces – – especially transphobic violence – – is deadly.

There are no federal employment protections for persons based on sexuality or gender identity.  Only 24 out of 50 states have state-wide employment non-discrimination laws that prohibit employment discrimination on the basis of Sexual Orientation; only 21 of those also prohibit employment discrimination on the basis of Gender Identity.[4]  In the 3 months and 22 days of 2016 that have elapsed so far, 11 transgender people have been murdered[5][6].

While the Obergefell case was not poised to be a landmark decision for all LGBTQ Rights in the United States, many pundits and media outlets wanted to champion it as such – – as evidence that some solution had been rendered, and that some social progress had been achieved.  Winnowing issues of homophobia, biphobia, transphobia and queerphobia in American society to an issue of whether same-sex couples are afforded the right to legally marry is reductive and dangerous in its oversimplification.  The issue affords only a singular protection only for persons who do choose to marry.  It ignores the homophobic, transphobic, biphobic, and queerphobic ideas and attitudes that are rampant in the United States, and the ways in which the cultural embrace and acceptance of these attitudes enable violence and discrimination against LGBTQ people every day.

In the nearly 10 months’ wake since the Obergefell decision, states including Georgia, North Carolina, Tennessee, Louisiana, Missouri, and Mississippi have all considered legislation that would legalize discrimination against LGBTQ persons.  While many of these are disguised as State Religious Freedom Restoration Acts (RFRA) or Religious Exemptions[7], several are not, and are based purely in phobias surrounding LGBTQ persons.  We have seen increases in violence against transgender individuals.  There has been a swath of “Bathroom bill” legislation, wherein transgender or gender nonconforming people are denied the right to use a bathroom based on their gender or their perceived gender being perceived as a threat.  Hate is toxic, and it has been magnified and focused against the larger LGBTQ community in the wake of the Obergefell decision.

Just as the use of pesticides as a solution to a perceived agricultural problems in the early- and mid-20th century ignited a chain reaction of unintended consequences, looking to the courts to regulate a single aspect of same-sex couples’ relationships seems to be causing reactions in feedback loops that are larger than the Supreme Court may have conceived would be affected when this solution was rendered.

This is not to put the Supreme Court at fault for all of the negative backlash that has occurred in State Governments or in popular culture as a result of the Obergefell decision. However, it does call into question how short-sighted it was for some groups[8] to so vehemently pursue the right for same-sex marriage.  It also calls into question the ways in which the LGBTQ community rallies, and seeks to exist among a larger ecosystem comprising queers and non-queers in the United States.

In contrast with the raucous spring I experienced years ago in New York City, the call for marriage equality was tame, quiet, and almost insidious.  The call for marriage equality wasn’t one that said “we represent the diversity of humanity” – – it was a weak plea for mercy towards a small subset of LGBTQ people saying: “we’re just like you”.  Those voices from that pride parade, and their ilk – – that cacophony of strong voices that defied gender roles, and sang against heteronormativity – – Those are the voices that are now conspicuous in their absence. They are absent as a result of a flattening and homogenizing of LGBTQ experience; they are absent as a result of violence, and as a result of a larger social and cultural devaluation of the diversity and breadth of the LGBTQ community.


[1] Pages 2-3, in Carson, Rachel. Silent Spring. Boston, Houghton Mifflin, 1962

[2] Nowell, L.H., Capel, P.D., and Dileanis, P.D., 1999, Pesticides in stream sediment and aquatic biota–Distribution, trends, and governing factors: Boca Raton, Fla., Lewis Publishers, 1001 p.

[3] Carson, page 57.

[4] https://www.aclu.org/map/non-discrimination-laws-state-state-information-map

[5] https://en.wikipedia.org/wiki/List_of_unlawfully_killed_transgender_people

[6] This number is likely higher, due to a gross lack of reporting of transphobic violence

[7] For analysis of RFRA legislation by the Center for Gender & Sexuality Law’s Public Rights/Private Conscience Project, see: http://web.law.columbia.edu/gender-sexuality/public-rights-private-conscience-project/policy

[8] http://www.hrc.org/

Link to Document/Text here:
http://bit.ly/1TOUnSu

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

April 12, 2016

Fifteen law professors, most from universities in Missouri, issued a memorandum today arguing that Missouri’s Senate Joint Resolution 39, which would amend the Missouri constitution to create new and very broad religious liberty rights, is unconstitutional. The Missouri House Committee on Emerging Issues has scheduled a hearing on SJR 39 for this afternoon.

SJR 39 would give many religious organizations, individuals, for-profit entities, and state workers the right to violate municipal antidiscrimination ordinances and contractual obligations that conflict with their “sincere religious belief concerning marriage between two persons of the same sex.”

The amendment would protect a wide range of discrimination in employment, housing, public accommodations, and government services against same-sex couples and supporters of marriage equality. For example, the amendment would allow:

  • A religious hospital to violate a “good cause” provision in a collective bargaining agreement and fire a nurse who expresses support for marriage equality;
  • An adoption agency that has a contract with the city of St. Louis to violate that city’s antidiscrimination ordinance and refuse to work with same-sex couples;
  • A private restaurant chain to break a contract to cater a wedding when it learns that the couple is of the same sex; and
  • A judge to ignore the U.S. Supreme Court and the Missouri Code of Judicial Conduct and refuse to marry a same-sex couple.

The memo, which was spearheaded by the Public Rights/Private Conscience Project at Columbia Law School, concludes that SJR 39 violates the Establishment Clause of the First Amendment by accommodating religion in a way that meaningfully harms other Missourians. It was signed by professors from Washington University in St. Louis, University of Missouri-Kansas City, and Saint Louis University School of Law.

“SJR 39 does not just disrupt the careful balance between religious and secular rights enshrined in the Constitution,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law, “it’s also unconstitutionally vague. It’s impossible to predict the range of otherwise prohibited behavior that would be given absolute immunity under this amendment.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said SJR 39 “is not about religious freedom, which is already very well-protected by the robust liberty of conscience provision of the Missouri Constitution. It merely codifies a right to discriminate.”

Read the memorandum here.

Read the Mississippi Memorandum here:
http://bit.ly/1SNYHiz

Read
 the Georgia Memorandum here:                             http://bit.ly/1pGlmmO

Media Contact:
Elizabeth Reiner Platt
Associate Director, Public Rights/Private Conscience Project
ep2801@columbia.edu

April 5, 2016—More than a dozen law professors with expertise in constitutional and civil rights law have signed memoranda published by the Public Rights/Private Conscience Project at Columbia Law School that analyze two so-called “religious liberty” bills recently passed in Mississippi and Georgia.

Mississippi’s bill, HB 1523, was signed into law today by Governor Phil Bryant. The Project’s analysis concludes that HB 1523 is among the broadest religious accommodation bills to be passed by any state legislature. It builds into state law unconstitutional exemptions for particular religious views on marriage, sexual relations, workplace sex equality, and gender identity. Under HB 1523, religious organizations, individuals, for-profit entities, and even government workers are granted the right to discriminate against a broad range of Mississippians in a variety of contexts including housing, employment, public services, education, and adoption.

Even worse, it prohibits the government from withdrawing grants or contracts from organizations that discriminate, and could therefore lead to the use of taxpayer funds to sponsor religiously-motivated discrimination.

The memoranda, which outline both bills’ constitutional and policy flaws, were signed by a total of 16 law professors from schools including the University of Mississippi School of Law, Mississippi College of Law, Emory University, Atlanta’s John Marshall School of Law, Mercer University School of Law.

“HB 1523 is a solution in search of a problem, as religious belief and practice already receive strong protection under state and federal law,” said Columbia Law School Professor Katherine Franke, director of the Center for Gender & Sexuality Law. “Rather than strengthening religious liberty protections, the bill radically overreaches by favoring religious believers at the expense of other private citizens.  This amounts to a violation on the First Amendment’s Establishment Clause.”

Elizabeth Reiner Platt, associate director at the Public Rights/Private Conscience Project, said that the bills “are representative of wave of legislation that has cloaked resistance to LGBT rights, and especially the Supreme Court’s Obergefell v. Hodges decision, as a movement for religious freedom.”

Like HB 1523, Georgia’s HB 757 would have condoned and encouraged both public and private discrimination. Governor Nathan Deal has promised to veto the bill.

While the memos’ signatories have a range of views on the appropriate balance between religious and secular rights, in the words of Governor Deal they “do not think we have to discriminate against anyone to protect the faith-based community.”

Antonin Scalia’s Legacy: The Jurisprudence of Death


Posted on February 26th, 2016 by Katherine Franke

Hdlns1-Scalia Assessing the legacy of a towering figure such as Associate Supreme Court Justice Antonin Scalia turns out to be a bit of a landmine. For some, he stood among the Court’s most brilliant, scholarly and thoughtful justices. While for others, he distinguished himself as a bombastic, small-minded, intolerant bully who disgraced the Court with a kind of behavior that presaged the legitimation of demagoguery we now see in the likes of Donald Trump. “If you want to understand how Donald Trump became the soul of the Republican Party, you need look no further than Antonin Scalia,” political scientist Corey Robin recently observed. “Scalia is the id, ego, and super-ego of modern conservatism.”

When Justice Scalia passed away unexpectedly on February 13th, Georgetown Law School Dean William Treanor issued a statement, in which he declared that “Georgetown Law Mourns the Loss of U.S. Supreme Court Justice Antonin Scalia … [he] was a giant in the history of the law, a brilliant jurist whose opinions and scholarship profoundly transformed the law.” These encomia went down poorly with some inhabiting the Georgetown law faculty’s more progressive precincts. Professor Gay Peller, a respected scholar of race and the law, took issue with the Dean speaking on his behalf: “I imagine many other faculty, students and staff, particularly people of color, women and sexual minorities, cringed at headline and at the unmitigated praise with which the press release described a jurist that many of us believe was a defender of privilege, oppression and bigotry, one whose intellectual positions were not brilliant but simplistic and formalistic.” Other faculty defended the Dean’s intentions, while both conservative groups of students and students of color expressed outrage, hurt and concern in response to the intramural eulogistic tennis match taking place at Georgetown law school.   More details here.

To complicate matters even further, many liberals stepped forward shortly after Justice Scalia’s passing to note a kind of ambivalent assessment of the Justice’s legacy: he may have been a conservative justice, to be sure, but he was, all would acknowledge, a very nice person. Cass Sunstein, a prominent liberal law professor at Harvard, wrote: The Scalia I Knew Will Be Greatly Missed.

For myself, I can’t say I care that Antonin Scalia was a nice person when not on the bench. When President Ronald Reagan forwarded Antonin Scalia’s name to the Senate in 1986, it was for Scalia to serve on the Supreme Court burdened with the august responsibility of interpreting the constitution, not to be our friend or dinner guest.   It is the robed justice, not the man behind the robe, that deserves our evaluation, to borrow a metaphor from Judge John Noonan’s book Persons and Masks of the Law.

Justice Scalia, like all the Supreme Court justices, did the rounds of visiting law schools on a regular basis, judging student moot court competitions and giving talks about his judicial philosophy and the like. In these contexts he often displayed behavior that was, well, cringe-worthy. Law students would stand before him, arguing a case while quivering with nervousness in their newly-pressed suits, and he would exploit the opportunity to “punch down” as some have described it. He’d insult the student, make belittling quips that would throw them off their game, or tease them. Don’t get me wrong, I don’t think our students need to be coddled. But I also don’t hold respect for a sitting Supreme Court justice who exploited these moments of grossly asymmetric power by bullying the weaker party standing before him.

His behavior with real lawyers and in real cases was not much different. When writing for the Supreme Court, Scalia was often vindictive and gratuitously cruel, taking school-yard aim at LGBT people, women and people of color. The snarkiness that characterized so many of his opinions, especially when he was in the minority, was injudicious and at times appalling.

While his friends may have included representatives of the groups he vilified in his opinions, that doesn’t in any way mitigate the damage he did to the idea that a constitution is a collective compact and a repository of shared values, not a warrant for the privileged to maintain their power. Being smart, or even nice, seems beside the point when great power is exercised in a manner that has the effect of – and often is intended to – humiliate. Great mind? Ok, whatever. Great jurist? Not at all.

In addition, Justice Scalia’s legacy will surely be distinguished by his tendency to be a particularly bad loser. As a member of a Court that has valued collegiality and the principle that nine jurists can reasonably disagree about some of the most difficult legal questions of the day, Justice Scalia chose instead to hurl ugly insults at his colleagues when he found himself in the Court’s minority. In Obergefell v. Hodges, the same-sex marriage case, he wrote that “I would hide my head in a bag,” if he ever joined an opinion as weak as Justice Kennedy’s. And if that didn’t leave enough scorched earth, he continued: “The Supreme Court of the United States has descended from the disciplined legal reasoning of John Marshall and Joseph Story to the mystical aphorisms of the fortune cookie.”   Some have described his opinions as “the jurisprudential equivalent of smashing a guitar on stage.”

Even worse, with respect to the substance, not only the tone, of Justice Scalia’s legacy, it could be fairly described as “a jurisprudence of death.” This necro-political valence of his legal philosophy animated an idiosyncratic commitment to reading the constitution as a text written by a dead hand. “The Constitution that I interpret and apply is not living but dead,” he frequently noted. Before Antonin Scalia was elevated to the Supreme Court by President Ronald Reagan, this version of interpretation was embraced only by a right-wing fringe, including Edwin Meese. Perhaps one of Scalia’s greatest accomplishments was mainstreaming an approach to textual interpretation that fixed the meaning of our founding document in the imagined minds of its now long-dead signatories, and aggressively rejecting the notion of a living constitution.

But Scalia’s jurisprudence of death was not limited merely to interpretive method. It also infiltrated the substance of so many of his opinions – particularly those in the criminal justice area. Robert Cover famously observed “legal interpretation takes place in a field of pain and death.” And this has never been more true than for the way Justice Scalia approached death penalty appeals that came before the Supreme Court. In the 1993 Herera v. Collins case, a case involving the question of whether newly discovered evidence that could exonerate a defendant convicted of murder and sentenced to death, Justice Scalia wrote: “Mere factual innocence is no reason not to carry out a death sentence properly reached.” He later reiterated this view in another death penalty appeal in 2009 brought by Troy Davis: “This Court has never held that the Constitution forbids the execution of a convicted defendant who has had a full and fair trial but is later able to convince a habeas court that he is ‘actually’ innocent.” The taunting scare quotes Justice Scalia placed around the word “actually” loomed as a high-stakes taunt and a deadly provocation that collapsed any daylight between the notion of legality and justice: the state can kill an innocent man if the trial he received satisfied a minimal criterion of fairness. Surely a legal system has lost its soul if this is what criminal justice has been reduced to. How does a person who holds this view, and is blessed to hold the highest judicial office in the nation, sleep at night?

And so it is fitting that death found Antonin Scalia while he slept. In his sleep on a hunting trip of all adventures. Even more curiously, the last Supreme Court justice to die while in office was William Rehnquist and President Reagan appointed Antonin Scalia to fill his seat on the Court. Kinda makes one worry about the deadly endowment that awaits the next appointee to this seat.

 

We’re Hiring! Temporary Research Analyst – Racial Justice Program


Posted on February 18th, 2016 by Elizabeth Boylan

Research Analyst Position (full-time/part-time)
Contract – Temporary

The Racial Justice Program, part of Columbia Law School’s Public Rights/Private Conscience Project, produces original research on the impact of religious exemptions on communities of color and leverages that research into policy and advocacy interventions.

Columbia Law School’s Public Rights/Private Conscience Project is a unique law and policy think tank based at Columbia Law School. Its staff conceptualizes and operationalizes new frames for understanding religious exemptions and their relationship to reproductive and sexual liberty and equality rights, and disseminates those frames through legal scholarship, public policy interventions, advocacy support, and popular media representation.

The Program is seeking a Research Analyst to join our team. The Research Analyst will examine ways religious exemptions impact communities of color through health care restrictions, employment restrictions, and other means. This is a 2-month full-time contract position, with possibility of extension. Alternatively, for the right candidate in need of a more flexible work schedule, this can be a 4-month part-time position, with possibility of extension.

Key Tasks include:

• Determine analytical requirements for data processing, including the selection of appropriate data, tabulations and statistical methods

• Identify and interpret trends or patterns in complex data sets

• Interpret data and analyze results using statistical techniques and provide report(s)

• Assist with preparation of presentations describing project methods and results of analyses Requirements:

• A master’s degree from an accredited college in statistics, sociology, public policy, or a closely related field; with at least two (2) years of related work experience, or

• A baccalaureate degree from an accredited college, with at least four (4) years of related work experience

• Strong quantitative and problem-solving skills; experience with empirical methods and data analytics including working with large, complex data sets and conducting research

• Experience collecting and working with secondary data collection for social science research including data cleaning, analysis, and documenting procedures

• Knowledge in the use of one or more statistical research software packages (STATA, SPSS, SAS)

• Ability to think outside of the box and develop novel strategies for analysis

• Experience working effectively both independently and as part of a team

• Knowledge of health care policies and employment policies strongly preferred

• Knowledge of racial justice issues strongly preferred

To apply, please submit your resume and cover letter by e-mail to gender_sexuality_law@law.columbia.edu.

Law Professors Urge New York’s High Court to Protect Functional Parent-Child Relationships

Columbia Sexuality and Gender Law Clinic Submits Statewide Amicus Brief on Behalf of 45 Family Law Scholars from All 15 Law Schools

New York, February 9, 2016 – Professors from every one of New York’s 15 law schools are urging the state’s highest court to stop treating functional parents—those who have raised children with a former partner—as “legal strangers” to their children.

Columbia Law School’s Sexuality & Gender Law Clinic submitted an amicus brief on behalf of 45 professors in the case of Brooke S.B. vs. Elizabeth A. C.C. At issue is whether a woman who had decided to have and raise a child together with her former partner can be denied the right to seek custody and visitation because she is not the child’s biological or adoptive parent.

This case involves a couple who decided to have a child together and who shared in all aspects of raising their son after Elizabeth A. C.C., the biological mother, gave birth. The couple later separated and, initially, both parents shared custody. However, the biological mother has since refused to allow her former partner, Brooke S.B., to see or contact their son. The current state of the law leaves Brooke S.B. and the child without recourse, unable to continue the close parent-child bond.

“New York’s law harms children by cutting them off from the adult who has parented them,” said Suzanne B. Goldberg, Herbert and Doris Wechsler Clinical Professor of Law and director of the Sexuality & Gender Law Clinic. “The functional parent approach—endorsed overwhelmingly by family law scholars and an ever-growing number of courts—reflects the reality of family life today and promotes the best interests of New York’s children, as family law is supposed to do.”

The professors argue that the best way to protect parents and children is for the Court to overturn its earlier ruling and embrace the functional parent standard that many other courts have also implemented. “This is a pressing issue for the Court to address, given the rising number of children in American society whose parents are not legally or biologically related to them,” Goldberg added.

The brief asks the Court to revisit its much-criticized 1991 opinion in Alison D. v. Virginia M., which the Court had affirmed in the 2010 case of Debra H. v. Janice R. In Alison D., the Court held that a woman had no legally recognizable relationship with her son, despite having planned the child’s conception and having raised the child since birth with her former partner.

“Fundamentally, a functional approach provides a practicable model for resolving disputes among the increasingly varied families of our society,” said Cynthia Luo, CLS ’17, a clinic student who worked on the brief. “It also corrects the harmful and widely condemned formalistic rule that is in place today that turns caring and devoted parents into legal strangers to their children, without any rights in their relationships with the children whom they’ve nurtured and loved.”

The Court of Appeals is expected to hear arguments in Brooke S.B. in late April or early May.

The brief can be read in full here.

To contact Professor Suzanne B. Goldberg: Call (212) 854-0411 or email suzanne.goldberg@law.columbia.edu.

Sexuality and Gender Law Clinic students who worked on the brief include:

Alex Finkelstein ’17; Sydney Gaylin ’17; Angela Kintominas ’16; Cynthia Luo ’17; Sarah Mac Dougall ’16; Jonathan Newmark ‘17; Anya Olsen ’17; and Hunter Vanaria ’16.

Columbia Law School’s Sexuality & Gender Law Clinic addresses cutting-edge issues in sexuality and gender law through litigation, legislation, public policy analysis and other forms of advocacy.

Decriminalization as a Path to Ending Violence Against Sex Workers


Posted on December 17th, 2015 by Elizabeth Boylan

Red UmbrellasToday, December 17th, is International Day to End Violence Against Sex Workers.  December 17th received this designation in 2003 in memoriam of the more than 49 known sex workers and other marginalized women who were murdered by serial murderer, Gary Ridgway.

The call to end violence is an important one, and one that we should all heed. It is especially imperative that we heed the call to end violence when the violence in question puts persons who are already marginalized at risk of sexual assault and rape, physical assault, abduction, stalking, and murder.

In this instance – the call to end violence against sex workers – we are compelled to ask why sex workers are marginalized and why they are stigmatized, and how this makes them subject to greater violence.  The criminalization of sex work creates an institutional paradigm that puts sex workers at greater risk of violence, and sets systems in place that make it difficult for sex workers to report violent crimes perpetrated against them as they are vulnerable to persecution, prosecution, and further violence.

Sex work enables people to have economic independence by levying a fee for their sexual autonomy.  It enables individuals, who may not want, or be able to perform other work, to be economically powerful, and to be validated through engaging in work that is valuable and desired in society to a consuming public.

When sex work is criminalized, power is removed from the sex worker, and put into the hands of a government’s criminal justice system; as persons who enter the criminal justice system in the United States are frequently subject to cycles of fear, bias and discrimination, this further perpetuates cycles of marginalization of sex workers.  Sex workers are less likely to report assault, violence, robbery, or rape to legal authorities who are supposed to uphold laws that condemn these actions, for fear that they will be subject to scrutiny and discrimination as a result of their chosen profession. If a sex worker reports a crime against themselves, and is found to be engaging in illegal activities, they may be subject to police harassment and arrest.  If arrested, charged, and convicted of a crime, they are then subject to prison or coercive reforms, which frequently do not work, and do greater harm than good.  Given, then, that the individual has a criminal record, depending on the city and state an individual lives in, they may be subject to employment discrimination in the future – – which puts them at risk for poverty and housing discrimination and insecurity.

Sex work, too, offers a venue for economic empowerment and independence for persons already marginalized and discriminated against by society and employers.  Many transgender and gender-non-conforming individuals may turn to sex work as a means of income if they are unable to find other work due to discrimination by employers, or as a result of economic insecurity because they are frequently paid less for work in non-sex-work fields due to wage disparity and discrimination.  These numbers increase at the intersections of multiple marginalized identities – – persons of color, femme and trans-feminine individuals, persons born outside of the United States, and persons with disabilities.  The criminalization of sex work puts these individuals at risk of further stigmatization and at risk for greater institutional and individual violence.

Across the United States, there are a variety of laws that allow law enforcement to use condoms as “evidence” of criminalized sex work.  Until 2014, in New York State, possession of condoms was grounds for arrest on suspicion of sex work.  While this law was removed in New York State, many laws throughout the country still allow law enforcement officials to arrest persons on suspicion of sex work based on possession of condoms.  This leads sex workers to be less likely to carry condoms, for fear that doing so could be used as evidence against them if they are apprehended or stopped-and-frisked by police.  With laws like this in place, sex workers are less likely to carry condoms and other barriers that may protect them from STIs, HIV, and pregnancy; this in turn, creates a public health risk, one that is entirely preventable.  With sex work decriminalized, sex workers would be free to protect their health and safety.

When sex work is criminalized, we see that individuals engaged in this work are marginalized, and less likely to be able to protect their health, and to report violent crimes against themselves for fear of prosecution.  By de-criminalizing sex work, we would shift the paradigm that marginalizes these individuals, giving them the security to report violent crimes against themselves without fear of discrimination, harassment, or arrest, and thereby protecting their right to not be victims of violent crimes – rights that all persons should be entitled to.

While it is clear that we need to protect sex workers from violence, and make people aware of the fact that violence against sex workers is an institutional problem, ending this violence is only treating a symptom of the larger dysfunction caused by the criminalization of sex work.  By decriminalizing sex work, we can create a path to ending violence against sex workers, and enabling healthier, safer existences, and greater autonomy and economic opportunities for individuals who engage in sex work.

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