Sunday, March 28, 2021

Justice Trumped

The white male plaintiff seemed to get a sympathetic hearing from the Sixth Circuit

By Scott V. Sandford
Justice Correspondent

Remember that crazed corrupt Russian stooge who snuck into the Presidency, f***ked everything up, got impeached twice, committed innumerable crimes and abuses of power, and left a trail of 550,000 pandemic deaths, none cured by his preferred nostrums of domination and bleach?  Remember how after he lost an election, he fomented an insurrection that came within a few bullets of dispatching our democracy?

I know, it seems so long ago.  Whatever happened to that guy?  And who gives a s***?

It turns out that just defeating the Former Loser Grifter and indicting his armed goons doesn't make him go away.  His legacy, aided and abetted by contemptible cowardly reactionary Qpublicans, lives on.

One example: a recent decision by a panel of the Sixth Circuit Court of Appeals that included two FLG appointees in which a professor was allowed to exercise his right to bigotry by singling out one student in his class for discriminatory treatment.  The professor said his blatant discrimination was in fact based upon his sincere religious beliefs.

Last week, the Sixth Circuit said his employer lacked the power to protect its students from bigoted treatment.

Why, you may ask?

Let's let the Sixth Circuit speak for itself as best it can.  In its recounting of the tale, the professor, who remember holds enormous power over his student, is the hero, and the wicked university is the villain.

Did we mention the brave professor was a white man?

What happened was that the student (called Doe, representing the Sixth Circuit's sole concession to her understandable feelings and interests) asked to be referred to by pronouns that corresponded with their gender identity.

This simple request for respectful treatment was rejected.

When the University, acting as it had to under Title IX of the Civil Rights Act, sought to accommodate the student's legitimate concerns, the professor said he had a religious right to his bigotry.

But it sounds so much better in the Sixth Circuit's telling of the tale.  Let's let FLG-appointed Judge Thapar tell the story his way (for those who want to follow along at home, it's Meriwhether v. Hartop, No. 20-3289 (6th Cir. Mar. 26, 2021)):

Protected First Amendment activity, according to the Sixth Circuit

Shawnee State began awarding bachelor’s degrees just thirty years ago. And for twenty-five of those years, Professor Meriwether has been a fixture at the school. . . . Professor Meriwether is also a devout Christian. He strives to live out his faith each day. And, like many people of faith, his religious convictions influence how he thinks about “human nature, marriage, gender, sexuality, morality, politics, and social issues.” . . . Meriwether believes that “God created human beings as either male or female, that this sex is fixed in each person from the moment of conception, and that it cannot be changed, regardless of an individual’s feelings or desires.” Id. He also believes that he cannot “affirm as true ideas and concepts that are not true.” 

Where God says this is not immediately apparent.  Indeed, given the number of religious leaders calling for decent and equal treatment of trans individuals, it would appear that the Eternal One's position on discriminating against trans persons is not quite as clear as it appears in this retelling.   But go on:

Being faithful to his religion was never a problem at Shawnee State. But in 2016, things changed.

At the start of the school year, Shawnee State emailed the faculty informing them that they had to refer to students by their “preferred pronoun[s].” . . . Meriwether asked university officials for more details about the new pronoun policy, and the officials confirmed that professors would be disciplined if they “refused to use a pronoun that reflects a student’s self-asserted gender identity.” . . . What if a professor had moral or religious objections? That didn’t matter: The policy applied “regardless of the professor’s convictions or views on the subject.” 

Or, to put it another way, in 2016, the school (like other institutions) realized that invidious discrimination on the basis of gender identity was not only wrong, it was contrary to federal law and therefore it had a responsibility to make sure that its employees (like ol' Meriwhether) complied with its law and policies.  Like every other employer in the country.

It turns out that Professor Meriwhether is, surprise, surprise, not only a bigot but a pretentious douchebag:

On the first day of class, Meriwether was using the Socratic method to lead discussion in his course on Political Philosophy. When using that method, he addresses students as “Mr.” or “Ms.” He believes “this formal manner of addressing students helps them view the academic enterprise as a serious, weighty endeavor” and “foster[s] an atmosphere of seriousness and mutual respect.”  . . . He “has found that addressing students in this fashion is an important pedagogical tool in all of his classes, but especially in Political Philosophy where he and [the] students discuss many of the most controversial issues of public concern.” 

Oh, does he?  Now we're all in favor of in-class discussion (based upon our experience at a college only slightly more reputable than Shawnee State, where the professors regarded questions from undergraduates as if they were bullets: to be avoided at all costs).  Anyway, you can use the Socratic method if you want to emulate Professor Kingsfield.  All you have to do is treat all your powerless students with respect.  The key word here being of course “all” not just the white, male, or cis ones.

In that first class, one of the students Meriwether called on was Doe. According to Meriwether, “no one . . . would have assumed that [Doe] was female” based on Doe’s outward appearances. [And the relevance of this supposed fact is what? – Prof. Kingsfield]. . . Thus, Meriwether responded to a question from Doe by saying, “Yes, sir.” Id. This was Meriwether’s first time meeting Doe, and the university had not provided Meriwether with any information about Doe’s sex or gender identity. 

After class, Doe approached Meriwether and “demanded” that Meriwether “refer to [Doe] as a woman” and use “feminine titles and pronouns.” . . . This was the first time that Meriwether learned that Doe identified as a woman. So Meriwether paused before responding because his sincerely held religious beliefs prevented him from communicating messages about gender identity that he believes are false. He explained that he wasn’t sure if he could comply with Doe’s demands. Doe became hostile—circling around Meriwether at first, and then approaching him in a threatening manner: “I guess this means I can call you a cu--.”
Id. Doe promised that Meriwether would be fired if he did not give in to Doe’s demands.

Or, put another way, Ms. Doe made it clear to Prof. Holy Roller that she would insist on her legal and moral right to respectful treatment, including being recognized in accordance with her gender. The Sixth Circuit apparently wants you to tut-tut Ms. Doe's response, but frankly if Professor S***head is behaving like a c***, we don't see the harm in bringing such a fact to his attention.  Nor is informing him that you will pursue your federally-protected rights a threat.

The Sixth Circuit painted a lurid picture of the professor's treatment by university administrators

And by the way, if a student asks to be referred as Ms., that doesn't mean the Professor has to agree with her gender designation.  He just has to say it.  If you tell some a**hole, “I wish you a good day, sir,” that doesn't mean you believe they have been knighted. 

There ensued a series of discussions with university administrators who eventually laid down the literal law to Prof. J. H. Christ:

[The administrator] said he had just two options: (1) stop using all sex-based pronouns in referring to students (a practical impossibility that would also alter the pedagogical environment in his classroom), or (2) refer to Doe as a female, even though doing so would violate Meriwether’s religious beliefs.

We haven't heard as heart-rending a tale of religious martyrdom since Joan of Arc. Talk about carrying Christ's cross – imagine having to either refer to a student as she requested or simply drop all gendered references.   (That's how it works in English boarding schools and we haven't heard any complaints, although the flogging of complainers by the prefects might have something to do with it.)

So the school offered Prof. Justin Martyr a solution that he admits did not interfere with his batsh*t crazy hateful religious beliefs.  End of case, right?

Er, no.  The three black-robed clowns upheld Prof. Elmer Gantry's claims against the school on First Amendment grounds.

According to the Sixth Circuit panel, because state college professors have a right to freely express their political beliefs, they have an equally protected right to engage in hate speech specifically proscribed by federal law.  

What's the difference between the two types of speech?  Statements of political opinion, especially outside of class, do not infringe on any legitimate interests of a college or its students. Bigotry and hate speech do.  

Under the Court's First Amendment rationale, Prof. George Wallace could refer to Black students with racial slurs and Prof. Mel Gibson could call a women student “Sugar Tits” and no one could do anything about it.

The three stooge judges dismissed the argument that singling out trans students for special stigmatizing treatment violated Title IX:

But Meriwether’s decision not to refer to Doe using feminine pronouns did not have any such effect. As we have already explained, there is no indication at this stage of the litigation that Meriwether’s speech inhibited Doe’s education or ability to succeed in the classroom.

Except of course for the testimony of the offended individual herself, not to mention the massive body of evidence demonstrating that students subject to stigmatizing discrimination do less well than white male schmucks.  The panel's theory again seems to be that if a woman is willing to endure being called “Sugar Tits” and passes the final, she hasn't suffered any harm, unless she wants to be a total bitch about it.  

But as is usually the case when reactionary judges go off the rails, there's more.  Apparently prohibiting Prof. St. Sebastian from expressing his anti-trans bigotry in front of a trans student is the same as locking him out of his church, on the grounds of the record suggesting that the university quite properly didn't believe there is any religion-based right to torment helpless trans students.  The panel called this view “religious hostility.”

By the way,  even judges as mediocre as this panel know that this exact same argument was considered and rejected over a half century ago in the context of supposed religious objections to serving cheeseburgers to Black patrons in southern greasy spoons:

Defendant Bessinger further contends that the Act violates his freedom of religion under the First Amendment "since his religious beliefs compel him to oppose any integration of the races whatever."

The constitutionality of the public accommodations section, Title II of the Civil Rights Act of 1964, 42 U.S.C. Section 2000a, has been fully considered and determined by the United States Supreme Court in Heart of Atlanta Motel, Inc. v. United States, et al., 379 U.S. 241, . . (1964); Katzenbach v. McClung, 379 U.S. 294, . .(1964) . . . .;

The constitutional questions posed by defendants herein were before the Supreme Court in McClung and Atlanta Motel, supra, and were decided adversely to defendant's contentions.

That's a District Court judge in South Carolina summarizing the state of the law in 1966.  Thanks to the Former Loser Grifter and his Republican accomplices, we've now regressed to the point where newly appointed Trumpublican judges have less interest in faithfully or even logically applying the law than in imposing their own warped view of right and wrong even if it means tormenting people, like Doe, who only sought to be treated in a equal and respectful manner by a public institution.

Speaking of a rigged court, we'd suggest a rehearing before the full Sixth Circuit, but given the 11-5 Republican advantage on the Court, we suspect that this Christian martyr would prevail on rehearing en banc.

We have some passing interest in religion too and we'd remind the three reactionary cleric-judges and indeed the entire Republican Party of a passage in an interesting religious tome, referred to at this season: “Our rabbis taught: 'Adding seven new positions to the Sixth Circuit comes into the world because of justice delayed and justice denied.'”

Maybe that's a paraphrase but after four cups of wine, we can't be too sure.

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