… which is sad. Gerald Bostock, Aimee Stephens and Donald Zarda, the appellants in the three cases decided yesterday, were discriminated against by their employers for no other reason than what they were, or had decided to be. In a 6-3 decision, the Supreme Court decided that this breached the landmark 1964 civil rights legislation which banned discrimination in the workplace on the basis of race, religion, and gender, or what the law called “sex.”
This morning I criticized the Times for a cut line in its print edition that read “A Trump justice delivers an LGBT ruling that demoralizes the Right” as a gross exaggeration and “psychic news” —how does the Times know that conservatives are “demoralized”? However, I did recently encounter an article in The Federalist by a conservative who not only was apparently demoralized by the decision, but driven to the edge of madness. In all fairness, I thought I should mention it.
Joy Pullman, the author, is a Hillsdale College grad and an executive editor of the Federalist, which will lead me to be a bit more careful using the magazine as a source in the future.
As a preface, I note that Pullman isn’t a lawyer, and I see nothing in her background that suggests qualifications to analyze a Supreme Court decision. Indeed, I see nothing in the article that suggests that she read the majority opinion and the dissents. I’m guessing that she read a news article about the decision, or maybe a critical blog post. Well, a non-lawyer can only criticize a SCOTUS ruling according to his or her policy and ideological preferences. I don’t know why the Federalist would entrust an essay about the decision to someone like Pullman, though she is an executive editor.
Back in October I wrote about these cases, including the case involving whether businesses requiring employees to dress in traditional gender-specific garb discriminated against transgender workers without violating federal civil rights law. Solicitor General Noel Francisco and other Justice Department attorneys argued just that , claiming that Congress didn’t intend to include transgender status when it passed Title VII of the 1964 Civil Rights Act (I think that’s obvious), so the law’s ban on discrimination because of “sex” referred only to unequal treatment of men and women in the workplace. In R.G. & G.R. Harris Funeral Homes, Inc. v. Equal Employment Opportunity Commission, the Justice Department opposed the position of the Equal Employment Opportunity Commission that the firing of former funeral home director Aimee Stephens after she announced she would transition from male to female violated the Act, arguing that redefining sex discrimination was a job for Congress, not the courts. I wrote at the time,
It seems clear that giving LGBTQ Americans the same protection against discrimination as other minorities is the ethical course. This seems to be a technical dispute over whether the Courts or Congress should fix the problem. That argument is worth having, and I would not be shocked in a SCOTUS majority said that the omission in the law was unjust, but it was not the Court’s job to fix it. In the long run, it will be illegal to discriminate against LGBTQ citizens in the workplace, as it should be. The only question is how drawn out, angry and divisive the process will be to get there.
Ann Althouse flagged this tweet by “Dilbert” cartoonist/Trump-whisperer Scott Adams, and as is her wont sometimes (unfortunately), uses it to get tangled up in the logical conundrums she finds amusing. I’m not sufficiently amused: Adams is wrong, but he did put his finger on one of the problems with mail voting that advocates for the process refuse to acknowledge.
There is only one way to complete a vote: the voter does something that directly registers his or her choice without any intervening agency or process. No voting procedure that permits voting with intervening agency or process is sufficiently secure and reliable. Those who advocate such systems are to be viewed with suspicion and presumptions of either bad intent or faulty reasoning.
Both Adams and Althouse seem to be laboring under the misconception that someone who accepts the responsibility of mailing someone’s vote has a choice. Such an individual is, under the law, a gratuitous bailee, meaning that they have accepted an obligation without compensation. That means that if they fail the obligation, the one whose task they defaulted on usually has no legal recourse, but it doesn’t change the ethical situation at all. The gratuitous bailee promised to do something for someone, that individual relied on their promise, and the “friend” engaged in betrayal. Continue reading →
In 2013, Bridget Kelly, once Christie’s deputy chief of staff, and William Baroni of the Port Authority, had collaborated in reassigning traffic lanes on the George Washington Bridge typically reserved for residents of Fort Lee, N.J., to punish the town’s mayor for withholding support of Christie’s reelection bid. Christie ducked responsibility for the petty stunt that inconvenienced hundreds of commuters, but was never formally implicated.
The Court held, inKelly v. United States, that the actions of the two did not meet the statutory definition of fraud.
Baroni’s and Kelly’s realignment of the access lanes was an exercise of regulatory power—a reallocation of the lanes between different groups of drivers. This Court has already held that a scheme to alter such a regulatory choice is not one to take the government’s property. Id., at 23. And while a government’s right to its employees’ time and labor is a property interest, the prosecution must also show that it is an “object of the fraud.” Pasquantino v. United States, 544 U. S. 349, 355. Here, the time and labor of the Port Authority employees were just the implementation costs of the defendants’ scheme to reallocate the Bridge’s lanes—an incidental (even if foreseen) byproduct of their regulatory object. Neither defendant sought to obtain the services that the employees provided.
When a Court routinely criticized as sharply divided along ideological lines agrees across the bench, it demonstrates how egregious the prosecution of Baroni and Kelly were.
If you don’t know what I’m talking about, you should. Frederick is the overly duty-conscious and somewhat dim-witted hero of Gilbert and Sullivan’s “The Pirates of Penzance,” one of the Savoy duo’s so called “Big Three,” the Victorian operettas that have been performed the most over the years. (The other two are “H.M.S Pinafore,” and the currently unfairly besieged—but arguably the best of them all—“The Mikado.”) They aren’t my three favorites, mind you, but like seven of the other G&S masterpieces, they are damned good, and have aged better than most American musicals, especially the Rogers and Hammerstein classics. Poor Frederick was apprenticed to a pirate until his 21st birthday, but due to a cruel twist of fate and legalistic nit-picking, his 21st birthday didn’t arrive until 1940, because he was born on leap year. Today is his 41st birthday, though he is 164 years old.
I apologize for the stupid subtitles in the clip from the movie. Unlike most G&S performers, the diction of Kevin Klein, Rex Smith and Angela Lansbury is excellent.
(I’m hurrying because I’ve learned from cruel experience that traffic on Saturday after 12:30 slows to crawl..)
1. Thus ends Black History Month. I do not favor tribal distinctions in our days and months. It is inherently divisive, and Black History Month smacks of honors affirmative action. The history of black Americans is American history, inextricably intertwined with the history of the rest of us. Our entire history ought to be taught and learned without bias and spin, and no race or ethnic groups should hesitate to take pride in the accomplishments of other Americans regardless of their color or ancestry.
NOTICE of CORRECTION! Item #2 below has now been shown to have been based on a hoax. More after…
2. Res ipsa loquitur:
Obviously the note in Chuck’s tickler file came up: “Today transition from saying Trump was doing too much in response to the Corona virus to saying that he isn’t doing enough.”
What awful, awful hacks these people are.
They are still awful hacks, but I hate being caught by these hoaxes. This one was especially sinister, because the fake tweet is completely consistent with what the Democrats and the news media had been saying about the President’s move to stop travel from China. However, insisting that a faked message is still “true enough” is what Dan Rather did in the scandal that ended his career as a respectable journalist.
We now know that the tweet is a hoax because ProPoblica, a nonprofit journalism organization, maintains a database of tweets deleted by politicians called Politwoops that uses Twitter’s Streaming API to find tweets from politicians that have been deleted. Schumer’s tweet is NOT in the database, thus we know it wasn’t posted.
[T]here are the Tilli Buchanans among us, who want to tear down social norms, not really knowing what the consequences will be over the long term, just for the hell of it. In addition to being irresponsible and disrespectful, they are also lousy citizens.
They are not, however, criminals. She should be able to walk around naked in front of her children, just as we allow parents to engage in all sorts of other dubious practices. That she can doesn’t mean she should, but this is part of a long, long list where we must rely on ethics rather than law.
Facing being placed on a sex offender registry for 10 years, Tilli agreed to a plea deal with her pleading guilty one class B misdemeanor lewdness charge and paying a $600 fine while serving probation. The charge will be dismissed if Buchanan can keep her shirt on for a year.
4. More “The rest of the story,” uber-jerk division. In 2018, Saturday Night Live performer Pete Davidson mocked GOP Congressional candidate Dan Crenshaw for his eyepatch, the result of a combat wound. Davidson said that he looked like “a hitman in a porno film” and dismissed the origin of his disfiguring injury as something he got in “war or whatever.” Veterans, their families and others who don’t usually pay attention to SNL anymore since it has become partisan, shrill, and lazy protested loudly, and Davidson apologized while Crenshaw appeared on a later show, where he was funny, gracious, and forgiving
It was obvious to me (and, I’m sure, Crenshaw) that Davidson was forced to apologize, but it takes a special breed of jerk to come back after he has left the scene of his insults and say so.
In Davidson’s new stand-up special, “Alive from New York,” Davidson, says,
“So I made fun of this guy with an eyepatch and then, like, I kind of got forced to apologize. My roommate thought I should apologize so that I didn’t get shot in the face. People were like, ‘You hate America!’ And I’m like, ‘No, I just didn’t want to be incorrect about how he lost his fucking eye. Is that a crime?! The only thing I did do, which I am guilty of — and I apologize for — is I did make that guy famous and a household name for no reason, right? I did what, like, Ariana Grande did for me, right? I sucked his dick at ‘SNL.'”
This is what you lost your eye for, Dan.
5. You could show this to your Bernie Bros friends, but I doubt they could understand it. At the Foundation for Economic Education, J. Kyle de Vries does an excellent job of explaining the Social Security cheat, and why it has to be reformed. The system no longer makes sense, but the socialist enablers refuse to consider the problem. de Vries writes in part,
Millennials and Generation Z: Do you want to fund my Social Security benefits with higher payroll taxes than I paid in the past? Especially when the likelihood is high that your benefits are not going to be as lucrative as mine?
I am lucky. My Social Security benefits will be funded by you and other workers, and I plan on living to 140. If you are younger, that should concern you. Right now, you and your employer are forced to contribute 12.4 percent of your income into a fund that goes into a black hole, financing some other guy’s retirement. Wouldn’t you rather put that 12.4 percent into a fund you manage?
…Assume a self-employed 25-year-old makes $75,000 this year. Further assume she is required to set aside 12.4 percent of her income into a protected, tax-deferred trust, just as she must do for Social Security. But this is her account, managed by her, just like a 401k plan. If she realizes a 3 percent increase in income each year and can earn 6 percent on a conservative mix of stocks and bonds during her lifetime, her trust will accumulate to over $3,500,000 at age 70. At 8 percent growth, that number will be an astounding $6,142,000.
Would you rather have accumulated these much larger sums to augment your retirement income than get the average $1,500 per month Social Security check issued today? Lesser potential income is just one of the problems with the present system.
…Contrary to popular belief, payroll taxes are not invested in a fund to secure benefits like most other pension plans. Since the beginning, payroll taxes went first to make payments to current retirees with the balance “borrowed” by the feds for spending on things other than Social Security benefits. For most of the program’s history, the amount of payroll taxes the feds received was much higher than the Social Security payments, meaning the feds had a lot of money to spend on other things. Because of demographics, that situation has changed perilously, threatening the future of the Social Security system.
…What all this means is millennials and Gen Zers will see higher taxes for Social Security across the board, perhaps many times. They will also most likely see reductions in promised benefits, especially if they accumulate a lot of money over their working lifetimes.
…Wouldn’t you rather have your own retirement fund you manage yourself instead of the flimsy promise of government IOUs? Increasing payroll taxes today only delays the day of reckoning. The current unfunded liabilities for Social Security are over $34 trillion. Let’s not double down on a failed experiment that will bankrupt our country in the future and leave millions destitute in retirement.
Wouldn’t it be nice if Donald Trump was articulate enough and organized enough to explain this in a debate, or in a national address to the public? Wouldn’t it be nice if young voters would pay attention, and if the news media could report on the issue fairly?
Wouldn’t it be nice if I could fly to Disney World by flapping my arms really hard?
Kwame Anthony Appiah is the first and only competent ethicist to handle the long-time New York Times Magazine column, so I feel badly that most of the time when I reference his opinions, it is to criticize one of them. He over-all record is excellent, despite the impression one might get from Ethics Alarms. For example, read his superb, if a bit overblown, response to a white woman who was “deeply offended” that a contractor hired by her husband flew a small confederate flag on his truck. She wanted to report him as a racist to his boss, and asked Appiah if this was the right thing to do.
That nuanced advice is more typical of “The Ethicist’s” work than this recent chapter, in which a man wrote that he had split from his wife after she had refused any physical intimacy, saying that it was no longer “part of her life.” She suggested a trial separation, which led to a formal divorce, and the couple signed a non-disparagement agreement as part of the process. Recently she admitted to him that she had repeatedly cheated on him during their marriage, and that she suggested the trial separation so she could resolve her affair at the time with a married man.
The inquirer says that he has never blamed his wife in discussions with his sons for the end of the marriage, but that he has learned from them that she “places the sole blame on me for every problem ever experienced by our family, including the drug addiction of our older son. When I recently contacted her about visiting him in jail, she said he didn’t want to see me. I contacted him and found that this was not true.”
He asks “The Ethicist” if he can ethically violate the non-disparagement agreement in his own defense, and tell the sons what a lying, cheating, betraying mother they have. To my amazement, Appiah said he could, and even suggested that he should, arguing in the process of a looooong discourse, Continue reading →
That is, the advice columnist’s answer to an easy ethics question last week was dead wrong. Once again, the advice-giver in question is Philip Galanes, the Times proprietor of Social Q’s, essentially that paper’s version of “Miss Manners.” Galanes, I now see upon googling him, is a novelist and a lawyer. That explains, perhaps, his unfamiliarity with some of the more nuanced aspects of ethics. Here’s the question he received in its entirety:
My brother died last year and bequeathed his entire (small) estate to me. He had one child, a daughter, to whom he left nothing. Feeling sorry for her, I told my niece I would give her half of the estate. (None of this becomes official until April.) But my circumstances have changed dramatically. My husband was recently diagnosed with pancreatic cancer. He is undergoing treatment, but we face a very uncertain financial future. I would now like to keep the entire estate. My niece is doing well financially, with many earning years ahead of her, unlike me. Is there a way to tell her I’ve changed my mind so she won’t hate me forever?
The Social Q’s verdict: “…Say, ‘I’m sorry if your father’s will hurt you. I promised you half of my inheritance out of love for you and hoping to heal any pain the will caused. But my husband is seriously ill, and I can’t afford to give you the money now. If I can make it up to you later, or in my estate, I will do it.’….For readers worrying about a verbal contract here, let’s assume B’s promise falls into one of several exceptions that requires agreements to be in writing….”
“Hey! That’s a GREAT Idea! I LOVE it! Sure I’ll accept a refund in exchange for never telling anyone how lousy your product is!”
…no one should trust or do business with a company that engages in this unethical practice. Just an opinion, now.
What SmileDirectClub does, as documented in a New York Times Business Section story, is force customers to sign a non-disclosure (or confidentiality) agreement before they can receive refunds for unsatisfactory products. That way, other customer can’t find out about what the SmileDirectClub can turn out to be, and in ignorance are more unwitting customers.
Traffic here inexplicably dead yesterday and today. Is there a secret ethics convention nobody told me about? There is, isn’t there? I’m hurt…
1. It’s too bad so many readers don’t pay attention to the baseball posts, because a lot of fascinating ethics issues with general applications arise…like right now. Yesterday, as already mentioned in an update to yesterday’s post and a couple of comments, the Boston Red Sox “parted ways with Manager Alex Cora by mutual agreement.” (He was fired.) In a press conference I just watched, the Red Sox brass said that Cora, who was both successful and popular in Boston, was let go solely because of the MLB investigation report regarding his involvement in cheating while serving as a coach for the Houston Astros in 2017, and the allegations of cheating while managing the Sox in 2018, still under investigation, played no part in the decision. What they meant is that the Astros cheating was going to result in a long suspension for Cora anyway, so the team didn’t need to wait for the bad news regarding his cheating in Boston.
The weirdest thing about the press conference is that none of the four Sox officials would do anything but praise Cora, his character, his judgment, his dedication to the team, his devotion to baseball. Gee, why did they fire this saint, then? Alex Cora’s character is obviously flawed, or he wouldn’t have masterminded major cheating schemes that cost the Astros 5 million dollars and four key draft choices while losing the jobs of two men who advanced his career. Cora’s judgement also stinks, because his actions have now cast a shadow over two teams, their championships, and the records of the players his schemes benefited.
If he was so dedicated to the team, why is it now facing a public relations and competitive disaster because of his actions? If he was devoted to baseball, how did he end up at the center of a scandal that undermines the perceived integrity of the game? Continue reading →
A lawyer for Utah’s chapter of the ACLU asked Utah Judge Kara Pettit to rule that the state’s lewdness law violates the Constitution by treating women differently than men and thus violating the Equal Protection Clause. The statute makes it a crime to expose “the female breast below the top of the areola” in the presence of a child in a private place “under circumstances the person should know will likely cause affront or alarm.”
Tilli Buchanan, 27, faces imprisonment, fines and the requirement to register as a sex offender for 10 years if convicted of violating the law, which she certainly did. Buchanan and her husband had been installing drywall in the garage, and they had taken off their shirts that had become scratchy from the fibers, she told reporters. When her stepchildren, aged 9, 10 and 13, walked in, she “explained she considers herself a feminist and wanted to make a point that everybody should be fine with walking around their house or elsewhere with skin showing,” her lawyers wrote in court documents. Here’s Tilli…
Just kidding.
Lawyer Leah Farrell of the ACLU says the law requires women to do a “mental calculation” about whether going topless would cause alarm. But men can go shirtless without violating the law and without making that calculation. “That really sets up an unequal and unfair dichotomy,” Farrell says.
Prosecutors say that Buchanan stripped in front of the children and was under the influence of alcohol at the time. They also claim she said she would put her shirt back on if her husband showed her his penis.
