Posts Tagged ‘legal’

The justice is my penis

WHEREFORE, Captain Justice, Guardian of the Realm and Leader of the Resistance, primarily asks that the Court deny the State’s motion, as lacking legal basis.

It’s good that there are lawyers out there who appear to be having some fun. It’s not the only appropriate response to some of the more ridiculous aspects of their profession – a little more direct activism to unfuck the system would also be nice – but it’s still encouraging to see.

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My particular sheltered corner of the internet has been abuzz with European Court of Human Rights news lately. And it’s news with a non-trivial reach outside my own narrow echo chamber, for once; the mainstream media has also been covering the recent rulings on religious discrimination in the workplace, to some extent or another.

There are four cases whose judgments have just been published, focusing on four people who felt that their religious rights weren’t given due respect and deference in their place of work. One counsellor and one registrar both refused to work with same-sex couples; the other two weren’t allowed to wear some sort of ornamental cross as part of their uniform.

Lots has already been written about this, from the lucid to the utter bollocks. Andrew Copson has been kept very busy quashing some of the rumours and countering the misinformation which has accompanied these cases, and seems to have been largely alone in the most prominent news outlets as a critic of the popular “Christian persecution” narrative.

But even some of the most reliably insightful and coherent commentators seem to be blithely accepting some premises of the religious argument which don’t merit it. Nelson Jones is as worth reading on this as ever, but his passing mention of practices being “central or mandatory in a faith tradition”, in the context of Article 9 of the European Convention, raises more questions than he asks.

Here’s my concern about having legislation in place to enshrine religious rights:

Religion is an entirely personal thing, which nobody is obliged to share. If you’re a Christian, swell, but I don’t accept any of the truth-claims based upon your “faith”, and I’m not obliged to treat them differently than any other unfounded assertions about the world. I don’t believe in your God, and see no reason to act as if I should. I’m not a Christian.

(This is important, in part, because it also means your religion can be whatever you want, defined by you and you alone. Letting corporations or governments decide the legitimacy of someone’s religion – be they devout Christian or casual Jedi – and thus rule on how far the rest of us should go to “respect their beliefs”, is the kind of precedent that can’t not go horribly wrong.)

So, given that your religion is, to me, on that level, utterly meaningless… why should I care whether or not your religion affects your motivations, when I’m judging your actions?

If you want to blow other people up, it doesn’t matter to me at all if you’re doing it because you think God wants you to do it or for some other terrible reason. At least, not in terms of evaluating whether you should be allowed to do it. Being religiously motivated neither helps nor hinders your case when you seek to justify harming others.

Similarly, if your deity is a bit more chilled out and just wants you to wear plain black socks all the time, that’s fine, but it’s fine anyway, regardless of whether you consider it a religious obligation or just a personal preference. Your socks are no more or less my business when you claim God’s interested in them than they were before.

Religion is just another motivator, a reason why people feel strongly about certain things, and want to act in certain ways. It’s not a health requirement; a diabetic doesn’t take insulin because they have faith that it’s required of them.

Central point: Claiming the right to a certain behaviour should have no more moral force than claiming the right because you really want to.

And sometimes, that’s a good enough reason. “Because I really want to” is a fine reason for all sorts of things. It’s why I’m eating Toblerone right now. There’s nothing wrong with feeling strongly about taking a particular personal action. But sometimes taking action comes with consequences, and feeling strongly about that action doesn’t let you off the hook for those consequences, even if you’re calling it a religious motivation.

So when judging these “religious discrimination” cases, try imagining that religion doesn’t exist. Imagine that people are just choosing to act a certain way, in the context of doing work they’re getting paid for. Is it reasonable for them to expect to be granted the freedom to act in a way important to them (and nobody else) every time?

In the first two cases, it’s pretty clearly not. The job description for a registrar involves conducting same-sex partnerships, and for a counsellor, to offer counselling (because occasionally the world makes sense). Lillian Ladele and Gary McFarlane both actively declined to do their jobs, which is not usually something you can choose to do and expect to still have a job.

There were no reasonable grounds for them to make such a refusal. They weren’t being asked to do anything with any significant health risk. They weren’t having to go above and beyond their job description. Offering similar services to same-sex couples is a wholly reasonable expectation for people in their roles, and the only reason they had not to do it was “It’s against my religious beliefs”.

Which, remember, means not an iota more than “I really don’t want to”.

The other cases centre on the wearing of jewellery, which is where the notion of “central or mandatory in a faith tradition” becomes a truly powerful irrelevance. Many people like to wear jewellery, and for the most part this is absolutely fine. There are some things, however, with which it is incompatible. These may include medical practice.

My fiancĂ©e is going to start training as a midwife soon. She’s currently wearing her engagement ring, which includes a number of pointy shiny rocks. Now, when she gets to the practical part of midwifery, she’s not going to be allowed to keep wearing that ring, and I don’t suspect anyone will even bother to ask whether it’s a religious matter for her. She does have some strong feelings about that ring – I count myself immensely lucky to be so high on the list of things that my love feels strongly about – but in her role as a medical professional, this carries just as much weight as if it were religious, i.e. none. Hospital rules are what they are, and there are good reasons not to let people keep wearing pointy shiny rocks on their fingers when they’re putting their hands up women to take babies out.

Similarly, if there’s a blanket rule against dangling neck jewellery in a hospital, it’s a safe bet that it’s there for health reasons, and has zero correlation to how badly someone really wants to wear something pretty – regardless of which grisly death of a rabbi from two millennia ago that pretty something represents. This rule pays no heed to religion, doesn’t even notice it’s there. It would apply in the same way to the same shaped piece of metal on a chain, if Christianity didn’t exist and it was just a treasured family heirloom.

It’s nothing to do with your rights as a Christian. You have rights as a person, and as an employee, and while they’re important and may often need defending, they only go so far. And you don’t get extra ones just for believing really hard in stuff.

Okay. I wrote this far yesterday evening, realised it was past my bedtime and I still had more to say, so shelved it until this evening, and now I’ve completely lost the rambling, incoherent plot and have no idea what else I was planning to add to this. So… you’re welcome, I guess.

Read this, it’s shorter and smarter and makes more sense. I guess I could’ve opened with that.

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One legal activist is considering the possibility of an action that might “bring the whole [justice] system to a halt” in America.

That action? Organising people to claim their constitutional rights.

At the moment, most people who are charged with a crime will waive their right to a trial. They’re commonly advised that a full trial could lead them to face serious penalties, whereas agreeing a guilty plea beforehand and getting it all sorted out quickly and efficiently would be better for everyone.

If they took the rights they were entitled to, there’s no way the system could cope. But they’re pressured to plea out, and sometimes they have little choice.

Erma Faye Stewart pleaded guilty, having been told that it was the only way she’d be able to look after her children. As it turns out, if she’d gone to court, the case against her would have been dismissed. But that’s no comfort now that she’s been evicted from her home, made ineligible for food stamps, lumped with court costs and probation fees, and given a permanent criminal record.

I already told them, I’m having a hard time, buying my son medicine. I have to have his medicine for his asthma.

Her son needs medicine for his asthma. Goddammit, if you wrote a character in a movie as heart-wrenching as this woman, people would be vomiting into their popcorn at how schmaltzy and contrived it was. Why the fuck are we not better at helping people?

The fact that the US has a serious incarceration problem is no secret. The idea that the system could be so easily crashed just highlights how broken it already is.

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Defense lawyers are not much loved – at least, the expensive kind who are presumed to always be getting their guilty-as-hell but rich clients off on some technicality. And this is certainly worth being watchful of, if justice is something which we think shouldn’t be bought, must be available to all, and should give everyone an equal chance.

But what about prosecutors? Lack of oversight there is also something that opens up frightening possibilities for abuse and injustice, and is something that many in the legal profession are seriously concerned about.

The ACLU is especially concerned about this, highlighting the hundreds of cases where courts have found prosecutorial misconduct (707 instances in California in a thirteen-year period), and the almost insignificant rate of countermeasures taken (a total of six prosecutors disciplined during that time). Multiple times, people have ended up on death row in cases where, for instance, prosecutors withheld evidence that might have overturned a guilty verdict.

Right now, the system seems designed to motivate many of its participants – defense lawyers, prosecutors, etc. – toward the goal of “make sure our side wins”, instead of “learn as much about the truth as possible” or “try to ensure the greatest amount of justice done”. As it is, why wouldn’t people hide evidence that would hurt the case they’ve been trying to make, or allow it to get “lost”? When everyone’s taking sides and simply trying to win, and there are no significant recriminations for breaking some of these rules, what reason would anyone find to play fair?

Of course, there’s one very simple step we could implement which would fix all these problems and make everything wonderful, and I’ll tell you what that is right now. All we have to do OH SHIT A TIGER RUN




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Almost every debate in American politics, about the law and what things it should or should not allow, brings up the issue of constitutionality.

The US Constitution, drawn up in the late 1700s when little ol’ America was just starting to cut loose of the apron strings and make its own way in the world, has formed the bedrock of its legal system ever since, and provided vital and unassailable decisions on how hundreds of millions of people’s lives should be run.

I’m not really a fan.

Don’t get me wrong, it’s got some good ideas. It’s just weird how reverentially it’s treated sometimes. A lot of major political players and law-makers seem to act like it’s the unquestionable be-all and end-all of every legal dispute that can be imagined. If what you want to do is unconstitutional, no dice, end of.

And I don’t get it. If you share the values it espouses, then by all means embrace it for that, but… You do know that whether or not something matches up with what some guys 250 years ago had in mind isn’t as important as whether it’s actually a good idea, right?

I’ve seen this a number of times with regard to gun control. People who like their guns point to the “right to bear arms” guaranteed by the Constitution, while those on the left often claim that this was only intended to refer to the 18th century weaponry that existed at the time it was written. The country’s founders couldn’t have predicted the range of pistols, assault rifles, and the like available today, and wouldn’t have condoned their unchecked possession.

It’s hard to imagine what could be less useful to the gun control conversation that the imagined and hypothetical opinions of some people two centuries dead on the subject of modern technologies of which they had absolutely no knowledge. Can’t we try to be smart and figure out how it makes sense to act, based on what we know now?

Actually, you don’t even have to go as far as the Second Amendment to find a good example:

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.

This is generally about the government staying out of people’s way, which is largely a good thing. But the question of exactly what constitutes “freedom of speech”, against which no law shall be made, is a notoriously knotty one. There’s no mention of fraud, libel, or shouting “Fire!” in a crowded theatre anywhere in the clause. There have been numerous legal decisions since the Constitution regarding these subjects, as well as on things like obscenity and campaign finance, and the law itself acknowledges a good deal of nuance to an obviously complex issue.

But it still tends to be framed around whether certain harmful or undesirable forms of speech or expression are “constitutional”. It always seems to be about whether something “counts” under that part of the Constitution. Surely a decision to restrict or punish certain types of behaviour should stand on its own?

In practice, I imagine it usually does. The law is trying to reflect what behaviours are actually desirable or should be punished, and it probably doesn’t make a lot of difference that technically this takes the form of contrivances and qualifications being continually added to those important, constitutional principles. It just seems a strange obeisance to continue making.

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The HuffPo isn’t always the most reliable source of, well, anything. But they done good this time.

They’ve recently posted a series of articles by Radley Balko of The Agitator, on Myths of the Criminal Justice System.

Very short summary: The law is kinda screwed up.

Some examples of things I didn’t know:

  1. Through various technicalities and exemptions, you can actually be tried a bunch of times for the same crime.
  2. The law has a tendency to go much easier on police who abuse it than the rest of us.
  3. “According to the Innocence Project, about one in four convictions that have been overturned by DNA testing involved defendants who at one point had actually confessed to the crime for which they were later exonerated.”
  4. The way the registry of sex offenders works is insane.

And so much more. Read Part One, Part Two, and Part Three.

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There’s an oft-quoted line among free speech advocates, often in response to religious types insisting they deserve special treatment:

Nobody has the right not to be offended.

It’s a succinct way of expressing a basic freedom, and reminding people that you’re not entitled to forcibly inhibit others from saying what they want in a public space, just because it upsets you. It’s a handy little truism.

Only, in Tennessee, it’s no longer true.

Here’s the wording of the relevant Tennessee law, as it was amended last month:

(a) A person commits an offense who intentionally:

(4) Communicates with another person or transmits or displays an image in a manner in which there is a reasonable expectation that the image will be viewed by the victim by [by telephone, in writing or by electronic communication] without legitimate purpose:

(A) (i) With the malicious intent to frighten, intimidate or cause emotional distress; or

(ii) In a manner the defendant knows, or reasonably should know, would frighten, intimidate or cause emotional distress to a similarly situated person of reasonable sensibilities; and

(B) As the result of the communication, the person is frightened, intimidated or emotionally distressed.

This is a frighteningly low threshold that has to be met before people are guilty of a criminal act. It’s not just addressing death threats or harassing midnight phone calls any more. If it’s something you “reasonably should know” will cause “emotional distress” to someone who might see it, you’re expected to keep your damn mouth shut. If that someone then claims to have been “emotionally distressed” – something there’s really no way to measure except by taking their word for it – then you’ve broken the law.

I’ve heard directly from people who find a drawing of a featureless stick-man labelled “Mohammed” to be unconscionably offensive. I have no doubt that a competent lawyer could make the case that every one of the above points applied to some of the things I’ve posted on my blog, if any religious people ever made the complaint and claimed emotional distress.

Just not visiting my site would be the obvious solution. And in practice, even with this law in place, that’s what most people will do, and what most of the lawmakers would support, in such truly trivial cases. But the law is still frighteningly broad in scope, and leaves ample room for just this sort of abuse.

I’m also unsettled by the phrase “without legitimate purpose” which qualifies the whole thing. The implication that expressing yourself needs to be justified before it can be permitted is chilling. My legitimate purpose is “I will say what I fucking like”.

I’m not aware of any recent events in Tennessee or elsewhere which would suddenly necessitate such a change to the legislation. If you know of any cases of legitimate harassment, against which no action could have been taken under the previous law and which justify the changes, do send me a link.

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The Freedom From Religion Foundation’s ongoing legal battle, which challenges the US government’s recognition of an official “National Day Of Prayer”, has had a positive ruling overturned and the case thrown out by a Court of Appeals.

They still have recourse, and are already moving on with plans to have the case reheard. The law they’re challenging has been in place since 1952, and designates the first Thursday in May as a time for Americans “to turn to God in prayer and meditation”.

You might remember that the US also has this thing called the Constitution, and that one of the first things they decided to add to it when they realised it wasn’t quite finished was the idea that “Congress shall make no law respecting an establishment of religion”.

So you can see why this law which respects an establishment of religion might rub a few people up the wrong way.

The technicality on which the challenge has been thrown out this time is that the Foundation apparently lack “standing”. This means that it’s not their place to challenge the law, because they’re not personally being harmed by it or directly losing out in any way.

You can see why there ought to be some limitations along these lines on what lawsuits you can bring. Otherwise, you can imagine all sorts of frivolous and time-wasting cases being brought to court, by people who really have no stake in what they’re complaining about except their own personal indignation. But should the FFRF really stay out of this because it doesn’t affect them negatively in any way, as the court effectively ruled?

Daylight Atheism said it best:

In this case, the Seventh Circuit found that the FFRF had suffered no injury from the National Day of Prayer. Apparently, this is true even if public money is used to sponsor and organize the day’s events, even if participation is restricted to certain religious sects that work hand-in-glove with elected officials, even if NDP events specifically endorse one version of religious scripture over others, even if said events include official statements questioning the patriotism, morality or citizenship of those who refuse to participate. Never mind all that – when the President tells you to pray, you can say no, and that’s all it takes for your civil rights not to be violated!

According the Foundation’s report, Judge Barbara Crabb, who’d initially ruled in favour of their challenge last year, pointed out that enacting a National Day of Prayer, sponsored by public money and using elected representatives’ time and authority to instruct people to get praying, is “no more within the purview of government” than it would be if they passed a law and instituted another National Day which encouraged everyone to “fast during the month of Ramadan, attend a synagogue, purify themselves in a sweat lodge or practice rune magic”.

And you can just imagine how badly, if they did that, the Christian right would lose their shit.

There’s no un-tortured legal reasoning I can see behind this decision. The decision-makers are just doing what they want, because they’re Christians, and they pray, and they think praying and being a Christian is all just fine, and anyone who doesn’t want to join in isn’t really suffering and should just buck up already. You don’t have to pray if you don’t want to. And if you’ve got some other gods of your own, you can do your chin-wagging with them instead. Everyone’s happy, right?

Well, clearly not. This law seems to be straight-forwardly unconstitutional and unconscionable. Government’s place in matters of people’s religion should be to stay the hell out of it.

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You know that hideously embarrassing English libel law we’ve been trying to get changed, so that it has a slightly greater fighting chance of actually representing some semblance of justice?

Well, some people have been working on that.

In particular, a draft libel reform bill was published by the government today (PDF link). This will be discussed in parliament, and if all goes well then something like it will pass into law before too long, through methods too arcane and mystical to elaborate on any further here.

David Allen Green’s initial thoughts on the draft bill are encouraging. It’s still just another step on a long road, but a number of the suggestions made by the libel reform campaign are being taken seriously.

And, because I’m not really in the mood for being creative or evocative about legal arguments right now, let’s talk about sex.

You should really be reading The Pervocracy, unless sex just doesn’t interest you, or there’s someone in your life who monitors your internet habits closely and has no sense of fun. This latest post is another good one, about the inherent ambiguity in talking about sex while refusing to actually talk about sex:

You can’t be afraid to ask for what you really mean, and you also can’t be afraid to agree to what you really mean. People who agree to the platinum record, tee hee, nudge nudge, but balk at the explicit mention of sex, but really do want to have sex, are also a big part of the problem here. In a world where saying you want to have sex is a taboo that makes men creepy and women slutty, people have to speak in oblique hints – and not everyone can take a hint.

For reference, anyone who wants to have sex with me should stick with the oblique hints, but make sure they consist primarily of R Kelly lyrics. It’s the only language I understand.

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This 1995 essay by John Hasnas seems pretty compelling to me. Hasnas can describe anarchism in a way that makes it seem a more practical system of politics than just about anyone else I’ve read, even though that’s not primarily what he’s doing here.

I don’t have a whole lot to add to it right now. I’m feeling kind of under the weather this week and have a busy weekend coming up, so I’m taking it easy. But go read it anyway. It’s got a quiz at the start. You like quizzes. Go on.

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