Dr. Jillian T. Weiss

Summers Off

Filed By Dr. Jillian T. Weiss | May 24, 2010 4:00 PM | comments

Filed in: Entertainment, Politics
Tags: Ancient Order of Hibernians, Boy Scouts, Christian Legal Society, college education, Professors, St. Patrick's Day parade, Summers off

If there is one thing for which professors are generally envied, it is summers off. harriman.jpg

I'm working on the Moonlight Sonata this summer, all three movements. I'm also spending a lot of time hiking and boating in beautiful Harriman State Park. That's my little inflatable bathtub in the bottom left of the picture of Lake Sebago. I don't want a kayak; too much exercise and balance involved in those things. Sitting like a lump, now that's what I like.

But "off" is a relative term for me, and for many of the professors I know.

First of all, there are summer classes, if you want them. Well, my decade old car is about to explode, so I'm teaching two and hoping for a down payment out of the deal - Comparative Legal Systems and Psychology and the Law. Both online. Both interesting subjects. (Big controversy about online courses brewing - are they too easy or too cheatable?)

And then there's the two days of inservice meetings this week. And the meeting of department chairs coming up soon, for which I have a report due. Oh, and the flex time report, which is too boring to explain. And I need to work on a new edition to my book, which is three years old at this point.

And there's the article I have to get to the publisher by August 1. Now that's what I'm living for. It's on the interaction between the First Amendment and LGBT non-discrimination laws. Remember all that screaming by the hysterical right wing about their loss of religious freedom because of having to hire a homosexual? Well, they could have a point. If my religion requires me to stick my tongue out at you and stay at least 50 yards away, then requiring me not to do that would certainly infringe my crazy religion in some way. There are limits on religious freedom, just like there are limits on the right to shout fire in a crowded theater. But what those limits are -- that's not exactly clear, and requires a lot of thinking whilst on the lake.

You'd think that someone would have written about this issue already, and cleared up all the ambiguities, what with professors having to publish lots of books and articles in order to get tenure. But there aren't that many of us that specialize in LGBT workplace issues, and this issue hasn't been discussed much. There are a few articles touching on it, but I don't think they do it justice. (No offense to those of you that wrote those articles - I will give you a mention and use your thoughts as a springboard. Not saying mine will be more right than yours.)

The place to start with this issue are the two Supreme Court rulings on LGBT non-discrimination law, the NYC St. Patty's Day parade case and the Boy Scouts case.

In the first case, the Supreme Court ruled that the St. Patty's Day parade organization didn't have to allow an LGBT contingent to march under their own banner despite a local sexual orientation non-discrimination law. They said the First Amendment not only requires freedom of speech and religion, but also contains an implied "right of association." In other words, if I want to say that I don't like certain groups of people, I have that right. Keeping certain groups out of my club is a statement. An' the guvmint can't interfere with my statement under the First Amendment. if the government can tell me who I have to associate with -- like admitting certain members to my private club -- then they have impaired my right to make a statement. It's a bit of a stretch, but it's the law as the Court sees it.

Hey, the Supreme Court thinks porn is a free speech issue, and I've never read a speech in a porn magazine.

The other case is the Boy Scouts case. The Boy Scouts is a non-profit group, and they don't want avowed homosexuals as volunteer scoutmasters. The Supreme Court found that the Boy Scouts has a core message about sexuality, and that the state sexual orientation non-discrimination law would infringe their right of association under the First Amendment.

But both of those cases involved voluntary associations, rather than workplaces. Workplaces are a whole different animal. After all, the Civil Rights Acts of 1964 and similar laws now on the books not only prohibit discrimination based on race, national origin, religion, disability and age, but also affirmatively require employers to keep track of how many of each they hire, and can require them to hire more of a certain kind. (FYI, ENDA wouldn't go as far, but let's let ENDA rest in peace for a while.)

In fact, the Civil Rights Act contains a specific exception for private clubs -- they can discriminate as much as they want if they meet certain conditions.

So private clubs and voluntary associations are apparently different from workplaces. How different are they? Would the Supreme Court have ruled differently in the St. Patty's Day parade case or the Boy Scout case if those cases involved workplaces?

Well, for that, you have to read the tea leaves. Each decision is about 50 pages long. There are a lot of sentences in those opinions. Some seem to lean one way on the workplace question, and some seem to lean another. And there have been lots of other court opinions, and scholarly articles in the intervening years. We're also waiting on that Christian Legal Society v. Martinez case to come down from the Supreme Court.

It's going to take a lot of thinking on the lake to figure this one out.


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What is a person? What rights under the Constitution apply to persons other than natural persons? All? Some? If all, then we fall afoul of the laws against slavery, as corporations are owned.

Does a corporation have the right of association, or is this a right that only natural persons have?

Should it be that sole traders and partnerships - and by extension private clubs - have one set of rights, but as soon as they gain the protection of limited liability, they forego some of those rights as being "impersonal"? Is this a better test than the "15 employee" rule in the Civil Rights Act?

IANAL. I'm not even American. I submit that when it comes to employment, what the limits on personae ficta are is cogent.

My dearest Zoe: I always value your comments. But I'm not sure what you're talking about here. Is this related to my subject?

I'll see if I can explain better.

I consider that the whole mess is caused by the confusion of the definition of legal persons. Legal persons can be natural persons such as individual people, or personae ficta such as corporations, right? Please correct me if I'm wrong anywhere.

Anyway, going on to the first amendment. It says

Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press; or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.

The Constitution thus provides the right of freedom of speech. SCOTUS in NAACP v. Alabama stated that freedom of association was an integral part of freedom of speech.

In Buckley v. Valeo, and Citizens United v Federal Election Commission the SCOTUS appeared to hold that the right of freedom of speech applies to personae ficta, not just natural persons. This was in the context of limiting campaign funding, a bit of a stretch IMHO.

Parenthetically, this reasoning appears to invalidate all "truth in advertising" statutes, but I digress.

Because freedom of speech entails freedom of association, and personae ficta have freedom of speech, it appears inescapable that "freedom of association" also applies to corporations,not just to natural persons. I think by Citizens United v Federal Election Commission it must, thereby making large parts of the Civil Rights Act 1964 unconstitutional - those parts "justified" under the Interstate Commerce clause rather than through the 14th amendment. I don't consider this a good thing.

A similar question : Can a corporation other than a Church be considered to have a religion? Can such an entity exercise a religion?

My reasoning is that these rights apply to natural persons and only natural persons. By extension, it thus prohibits laws that would prevent the exercise of these rights by natural persons. So where do we draw the line?

Except... the two decisions Buckley v. Valeo, and Citizens United v Federal Election Commission appear to show that the SCOTUS disagrees, and that personae ficta have all rights enumerated in the first amendment, and by extension, the rest of the constitution too. Arguably the most obtuse decision since Wickard v. Filburn, which I still find breathtaking in its surreal logic.

Again, IANAL. I'm a safety-critical systems engineer. It's part of my job to predict unforeseen consequences of seemingly minor changes, in particular the major disasters and catastrophic failures inherent in these seemingly inconsequential changes.

I just had to do the Quality Assurance on a legal database including all legislation in all jurisdictions in Australia (with annotations by legal experts), plus all reported cases over a period of five years. Line by line. Word by word. That was for a division of Westlaw. It was... an education, put it that way.

Anyway, you're the expert. But with a 1st year law student questioning a professor, sometimes their ideas may be half- or quarter- baked, but have some germ of utility. Hopefully mine may, or at least you can tell me where I'm going wrong.

Oh, I get it now. Sorry, as my son says, I'm the smartest dumb person he knows. A bit slow on the uptake at times.

You raise an interesting question, but not one that is relevant to the question I am addressing, I believe.

As far as the First Amendment rights of corporations, yes, they have them. However, I do not consider the issue significant for the issue of whether LGBT anti-discrimination statutes infringe on First Amendment rights.

The Supreme Court has ruled that our traditional anti-discrimination statutes are nonetheless valid and applicable to all persons in the workplace context, despite any First Amendment rights. This applies to natural persons and corporations alike. Thus, the question of whether First Amendment rights of corporations override traditional anti-discrimination statutes has been settled.

The real question is whether the First Amendment rights of anyone override LGBT anti-discrimination statutes in the workplace context.

I suppose I see things a bit odd. To my simplistic view of the matter, either everyone is equal and as such deserving the respect and consideration under the most basic rules which this country is supposed to be formed under, or no one is. We are all lesser if we are not all equal at least as far as it comes down to such things as treatment in such ways subject to the control of the government anyway. The debate of course is if the government has the right to say people who employ others can reject someone solely because they are LGBTQ but this matter really has been answered already. They cannot discriminate due to Sex, Race, Age, as it is in law in most states and at a Federal level already. It seems to my reasoning anyway that to do less than including Sexual Orientation or Gender & Gender Expression amounts to the same logic which those who opposed the Civil Rights Act of 1964 used to oppose that. Now over 40 years afterward, the mention of opposing the Civil Rights Act of 1964 draws condemnation from most people. Views do change in time but sometimes they need a little push to get the ball rolling. This is why we really need to see ENDA pushed, as it will be several years before the truth of it will be fully seen.

I have written the Democrats who are always asking for money for the fall elections, that there will be no donations from me until they move forward with passage of ENDA and repeal of DADT. In that one way I plan to take at least one page from the so called "Tea Party" in that I plan to hold them to what they said prior to coming into control about two years ago. Failure to do so will force me to just vote for the Green Party or something. ( I do not see myself voting for the Republicans given their actions in regard to ENDA or DADT over the last few decades )

polargirl360 | May 25, 2010 10:06 AM

If a Jewish person owns and manages a business with more than fifteen employees on staff claims that it is his religious beliefs that he only hires Jews because God only chose Jews (his chosen people), the company would lose.

If a Christian or Muslim male employee thought his female supervisor should submit to HIM because it’s his religious belief that women must submit to men and acting subordinate to his female supervisor would violate his religious beliefs, that employee would also lose in court and probably be laughed at along the way.

Why is this 1st Amendment versus civil rights debate any different for LGBT people?

Because there isn't any law on the book addressing us in civil rights law.

Personally, I think I should start a company, build it up to be a global magnate (let's say in steel trade) and then only promote queers to anything above an entry-level position.

Or I could just complain on a blog.

polargirl360 | May 26, 2010 4:59 AM

The laws on the books will be just as vague as the Civil Rights Act. It is case law court interpretation of laws that forbid actions that I mentioned in my hypothetical examples.

If you did what you said you'd like to do in your reply, you would be sued because heterosexuals have a right to be free from sexual harassment from homosexuals yet the opposite does not apply according to past case law precedent. If sexual harassment isn't allowed by queers against straights, than discrimination most certainly won't be either.

You need to stop being a hypocrite by denouncing other people who complain on blogs and don't start businesses of their own when you haven't actually done it yourself yet.

Have a great summer off and relax. You owe it to yourself.