Today, the U.S. Supreme Court will hear a case with potentially sweeping implications for discrimination cases. Ames v. Ohio Department of Youth Service involves an Ohio woman, Marlean Ames, who claims she was discriminated against for being straight as less-qualified LGBT colleagues in Ohio’s youth corrections system were promoted.Ames alleged that she was treated differently due to her heterosexuality at the Ohio Department of Youth Services, resulting in not just a demotion but a pay cut in violation of Title VII of the Civil Rights Act of 1964.
Ames started working at the Ohio Department of Youth Services in 2004 as an executive secretary and was promoted several times, ultimately reaching program administrator.
In 2017, Ames was given a new supervisor, Ginine Trim, who is openly gay. She alleges that she met or exceeded performance review standards, but was discriminated against due to being straight.
Her case was dismissed by the lower courts using a three-step process for handling discrimination cases based on indirect evidence under McDonnell Douglas Corp. v. Green (1973).
Under that test, plaintiffs must first present sufficient evidence of discrimination, but also requires an added burden for those individuals who are part of a majority group. The test requires plaintiffs like Ames to provide additional “background circumstances” to “support the suspicion that the defendant is that unusual employer who discriminates against the majority.”
She is arguing that all parties should bear the same burden. In her filing, she calls for the Court to reject the precedent:
“Judges must actually treat plaintiffs differently, by first separating them into majority and minority groups, and then imposing a ‘background circumstances’ requirement on the former but not the latter. In other words, to enforce Title VII’s broad rule of workplace equality, courts must apply the law unequally.”
The case could further develop discrimination precedent two years after the Supreme Court’s decision in Students for Fair Admissions v. Harvard College.
In reviewing her claim, the U.S. Court of Appeals for the 6th Circuit called the matter an “easy” call at the preliminary stage. It noted that Ames could not show that a member of a minority group made the allegedly discriminatory decision, or with evidence demonstrating a pattern of discrimination against members of the majority group.
Judge Raymond Kethledge criticized the court’s requirement that Ames show special “background circumstances” because she is straight. Such a rule, he argued, “discriminates” “on the very grounds that the statute forbids.”
Ames argues that the test’s “background circumstances” component conflicts with the text of Title VII of the Civil Rights Act, which prohibits discrimination “against any individual with respect to the terms of conditions of employment because of that individual’s sex” or other protected characteristic. She argues “that the law as applied demands something more of her than the law as written.”
The Court could break from McDonnell Douglas Corp. v. Green and continue the push of Chief Justice John Roberts in Students for Fair Admissions v. Harvard College to make the Constitution’s guarantee of equal treatment “universal in its application.”
Going to say, that it sounds like she is possibly in the minority in her work environment.
So, minority in what sense? General population at local, state, national levels? Inside the workplace? How is that defined?
I remember living through the Allan Bakke decision in the late 1970’s. This reminds me of that.
If this employee, and it’s a big IF, but if she can make the court SEE and FEEL the discrimination against her by a homosexual in a supervisory position, she stands a very good change of prevailing at the SCOTUS.
Whoever this lesbian supervisor was, she may have set back the ‘movement’ for those of her persuasion by years, decades in fact. And the media should vilify her for doing so.
The news media became addicted to belief in their own eye-popping claim: “The Supreme Court is Crumbling: Revolution is at Hand”.
Confusion in media land is severe today over the most basic element of common sense. The additional test imposed on non-marginalized employees is discriminatory.
Your claim about the alleged media claim has all the hallmarks of a lie.
Counterclaim with no proof. You made the statement, burden of proof is on you to disprove
Pam Bondi says Thursday is going to be a big day.
Yup, sone Epstein files will be made public.
Your source?
“Pam Bondi says Thursday is going to be a big day.”
Given wide speculation about Epstein’s intelligence work for CIA and Mossad, and how that may have played into his pedophilia enterprise, I’ll wait to see what is released, and subsequent inferences from knowledgeable people on what may have been withheld, before I come to any conclusion about whether or not we are begin shown the whole picture. I note that Bondi referred to redacting victims’ identities, and to releasing other information, but I saw nothing to indicate that she had committed to releasing all of the information that does not compromise the identity of Epstein’s victims. That is what is required, imo. Bondi is a lawyer, after all, and her statement seemed a bit too artfully worded for my tastes.
EPSTEIN FILES TOMORROW: AG Pam Bondi Announces Thursday Release As 250 Victim Names Redacted
https://www.zerohedge.com/political/epstein-files-tomorrow-ag-pam-bondi-announces-thursday-release-250-victim-names-redacted
The communist redistribution and affirmative action have cost perhaps $30 trillion+ since 1960. How do actual Americans calculate what they lost and what they have paid since 1860?
They lost incalculable trillions, with an exponent, in dollars. They lost their nation. They lost their history. They lost their heritage. They lost their Constitution and Bill of Rights. They lost their nation’s legacy. When will reparations be paid to actual Americans; when will recompense for the loss of their nation and their birthright be made? Is that even possible?
You got source(s) for the unbelievably obvious lie?
“Is that even possible?”
No, it is not. The same principle is involved that renders the goals of such programs as affirmative action unachievable: it is impossible to go back decades or longer and reconstruct with any detailed accuracy the way things would have played out if “event X” had not occurred. Historical interactions are far too complex for that to work. The best that can be done is to correct the inequities of the present so that the future is not a repetition of the same injustices, and that should be our objective.
The Constitution, through the Supreme Court of 2022, extirpated federal “constitutional” abortion in an instant, you (expletive deleted) dunderhead.
What a concept! The Supreme Court actually upholding the plain language of the The Constitution as mandated in Article VI.
Article 6? Or was it 4? Or do you know what you’re talking about?
“…JUDICIAL OFFICERS…SHALL BE BOUND…TO SUPPORT THIS CONSTITUTION;…”
Article 6, Clause 3
The Senators and Representatives before mentioned, and the Members of the several State Legislatures, and all executive and judicial Officers, both of the United States and of the several States, shall be bound by Oath or Affirmation, to support this Constitution;…
Oral argument went well for the plaintiff today.
A majority of the justices on the Supreme Court, both conservatives and liberals, appeared sympathetic to the arguments made by Ames’s lawyer, Xiao Wang. “We’re in radical agreement today,” quipped Justice Neil Gorsuch.
https://www.yahoo.com/news/us-supreme-court-weighs-reverse-192655437.html
About time, someone with a source to a statement.
It appears former Biden DOJ attorneys who used lawfare against Trump are in need of attorneys themselves to defend themselves from Trump’s DOJ. Law firms are running away from representing these Biden apparatchik. Such was the case with pro-life legal cases, where Democrats (like Biden’s DOJ) targeted pro-life organizations. The tables have now turned. As Bob Dylan would ask, “how does it feel, to be on your own, with no direction known, like a complete unknown, like a rolling stone?”
Covington Revenge Deepens Worries About Defending Trump Targets
Private attorneys seeking to represent DOJ workers being forced out or investigated had already faced pushback from their firms’ executive committees over concerns such work will hurt their brands and cut into billings, according to interviews with 12 attorneys.
Some firm leaders, citing corporate clients threatening to walk if they get crosswise with Trump, have rejected outright or put up roadblocks to partners seeking approval to represent DOJ lawyers, FBI agents, and other civil servants who’ve faced various forms of attack, three lawyers familiar with the decisions told Bloomberg Law. That was before Trump’s executive order Tuesday pulling the security clearances of Covington lawyers and vowing to cancel any government business with the firm.
https://news.bloomberglaw.com/us-law-week/covington-revenge-deepens-worries-about-defending-trump-targets
I hope the prosecution goes forward vigorously and put James Comey et al. in “Debtors Prison.”
Jonathan: …And there is more in the news. Remember when DJT pledged to release the JFK files, the MLK files and the Jeffrey Epstein files? AG Pam Bondi promised the same thing at her confirmation hearing. Now Bondi is equivocating. She told Fox News the Epstein files are “on my pending review”. MAGA members of the House are demanding the Epstein files be released and complain that Bondi is dragging her feet.
Over the years the independent press has exposed the steamy underbelly of the DJT/Epstein 10 year relationship. It’s dark and ugly. Despite DJT’s latter denials, flight logs show DJT was a frequent passenger on Epstein’s “Lolita Express” where Epstein trafficked in underage women. In the 1990s DJT worked with Epstein to recruit young women at parties hosted at Mar-a-Lago by DJT. And over the same period women have stepped forward to complain that DJT grabbed them by their genitals at his parties and those of Epstein. The Daily Beast acquired audio of Epstein bragging about his relationship with DJT–that DJT “liked to f*** the wives of his closest friends”. Epstein suggested DJT was a serial cheat and loved using his power to get access to young women.
All this is probably why Pam Bondi is sitting on the Epstein files. DJT doesn’t want them released. But that doesn’t get rid of the files that MAGA Republicans somehow want released. So what to do? A whistleblower has stepped forward and claims the Kash Patel FBI is busy now deleting or destroying any record of the Epstein files. It’s like the order from Bondi to destroy all the case files and DOJ investigations of the Jan. 6 insurrectionists. Destroy the evidence!
Steamy underbelly? Do you mean seamy underbelly?
Geez, Denny-poo, learn to proofread.
“Bondi is equivocating…” Yeah, she called you up to discuss right, gave you the lowdown.
Dobbs was a noble effort on the part of the Supreme Court of 2022, conducted 50 years retroactively, to extirpate an egregious act undertaken by the corrupt Supreme Court of 1973.
The Supreme Court must retroactively revisit and correct every corrupt act of previous Supreme Courts since the inflection point of 1860 when American constitutional freedom was illicitly and unconstitutionally terminated with extreme prejudice after a mere 71 years.
“Must”? Why? More nonsense.
The Supreme Court must retroactively revisit and correct every corrupt act of previous Supreme Courts since the inflection point of 1860, when American constitutional freedom was illicitly and unconstitutionally terminated with extreme prejudice after a mere 71 years…
IN ORDER TO CORRECT CONSTITUTIONAL ANOMALIES AND ABERRATIONS AND UTTERLY AND DEFINITIVELY FULFILL ITS CONSTITUTIONAL DUTY TO SUPPORT THE “MANIFEST TENOR” OF THE U.S. CONSTITUTION.
All rights, freedoms, and vested powers will be denied to Americans and their elected representatives and assigned to the Karl Marx cult members under the Communist Manifesto.
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
The Civil Rights Act of 1964 is unconstitutional.
The Civil Rights Act of 1964 is an illicit, unconstitutional, and improperly ratified amendment to the Constitution.
The Civil Rights Act of 1964 denies multiple constitutional rights and freedoms of individuals regarding choice and preference, the right to private property et al.
The Civil Rights Act of 1964 unconstitutionally compels particular opinions and beliefs and acceptance of particular behaviors.
The Ohio Laws & Administrative Rules vest power in managing officers and other employees.
_____________________________________________________________________________________________________
Ohio Laws & Administrative Rules
Section 5139.02 | Appointment of managing officers.
(2) Each division established by the director of youth services shall consist of managing officers and other employees, including those employed in institutions and regions as necessary to perform the functions assigned to them. The director or appropriate deputy director or managing officer of the department shall supervise the work of each division and determine general policies governing the exercise of powers vested in the department and assigned to each division. The appropriate managing officer or deputy director is responsible to the director for the organization, direction, and supervision of the work of the division or unit and for the exercise of the powers and the performance of the duties of the department assigned to it and, with the director’s approval, may establish bureaus or other administrative units within the department.
The appropriate managing officer or deputy director is responsible to the director for the organization, direction, and supervision of the work of the division or unit and for the exercise of the powers and the performance of the duties of the department assigned to it and, with the director’s approval, may establish bureaus or other administrative units within the department.
(C) Each person appointed as a managing officer shall have received special training and shall have experience in the type of work that the person’s division is required to perform. Each managing officer, under the supervision of the director, has entire charge of the division, institution, unit, or region for which the managing officer is appointed and, with the director’s approval, shall appoint necessary employees and may remove them for cause.
What a waste of space.
Jonathan: Discussing the latest attempt to further gut Title II is a convenient distraction from the total chaos in the DJT/Musk administration.
The chaos increased last weekend when Musk demanded that federal workers provide him with a list of five things they were working on or get fired. The heads of about a dozen agencies, appointed by DJT, told their employees not to respond to Musk. Musk didn’t like that open rebellion so he sent another email making the same demand. DJT backed up Musk’s demand. Talk about confusion!
Then Elon demanded that workers could not work remotely and told them to return to their offices. And what happened? When the workers returned they were greeted with an AI generated video showing DJT sucking the toes of Musk–with the caption “Long Live the real King1”. And there is open rebellion within DOGE. Twenty DOGE employees have just resigned rather than carry out Musk’s insane policies.
Then over at the MAGA controlled House Speaker Mike Johnson is proposing massive cuts to Medicaid spending to compensate for a renewal of tax cuts for billionaires. But even there he is meeting resistance. Why? Because in red states cuts to federal funding for Medicaid would have real life adverse consequences.
For example, in Missouri cuts to federal Medicaid funding could have disastrous consequences for the state’s budget says the MO director of the state Medicaid program. About 70% of MO’s Medicaid funding comes from the federal government. Complicating the problem is that in 2021 voters approved a ballot measure that expanded Medicaid coverage. So that’s now in the state’s constitution. If the MAGA House were to drastically cut federal Medicaid funding MO would have to make up the difference–as much as $7.3 billion! The entire MO budget is only $53.7 billion. That means MO legislators would be faced with having to cut other funding–like for schools, road repairs, expanding internet service, funding hospitals and other important infrastructure programs. Even MAGA Senator Josh Hawley recognizes the dilemma. He says “I would not do severe cuts to Medicaid”.
So the MAGA crowd in the House and in the states are finding out what happens when you start slashing important government programs popular with the people. It results in open rebellion by voters–as we have seen in many town hall meetings around the country where MAGA House members are facing hostile questioning from voters opposing DJT’s policies. Look like even MAGA voters are rebelling against DJT’s attempted overreach. Not a good sign for DJT as he barely enters his new term on office!
@Dennis
You are a pox here, with no legal standing for any of your nonsense, and we all see it. I still can’t decide if you are just very bored, very privileged, paid, or a combination of those, but even for the left, you are a troll, furthering nothing, and I do not understand why this is a place you have chosen to haunt. Nobody cares, Dennis; you see: the rest of us actually have brains and hearts. Go back to The Wizard with your foolishness, maybe he can help.
What nonsense.
$37 trillion in debt and $120 trillion in unfunded liabilities as the onerous burden of once-free American taxpayers for unconstitutional regulation, redistribution, social engineering, affirmative action, illegal invasion, womb-to-the-tomb hand-holding and care, etc., constitutes the heinous fascism of communists.
Great post, Dennis, thoughtful and logical. Bonus points for pissing off James. Some kids can’t handle differing viewpoints.
Viewpoints. Lmao.
So Dennis comes in here with his supermarket tabloid made up horse shit, and thats just another viewpoint.
Never forget how Dennis raved about the pee tape and Alpha Bank. Just another viewpoint. Go fvck yourself lawn boy/gigi.
His world must an amazing … so many hours, days , weeks posting … well, stupid stuff.
As you are corrected on a minute-by-minute basis, members of the Trump administration must be reminded that the entirety of executive power is vested in the president exclusively and that they will respond to his exertion of that power, methodology, such as the deputization of Elon Musk, notwithstanding.
El blowhard!
Dennis: Theft, fraud and abuse of federal funds have consequences.
$37T there aren’t enough trees on planet earth to provide paper to print that amount in $100 notes.
Paper, what’s paper? Plastic!
Wow, I’m in awe. You are a god man, a god, I say. Please tell us the universal truth. Alu Akbar!
The modern left does not want discrimination to work both ways, and it’s the diametric opposite of what they used to believe; modern liberals have been asleep for at least 25 years to believe otherwise. I hope this sets precedent. We are living in mad, mad times. We are dealing with elite fascists, period, and their cries of ‘oligarchy’ are hilarious. What they really mean is that they are intrinsically superior and we should all bow down to that obvious superiority. Sounds a lot like why this country was founded in the first place. and the irony in places like modern Germany – no knife could cut through that irony.
Straight from the horse’s mouth? 🙂
😂😂😂😂😂😂,
“Be nat wrooth, my lord, though that I pleye. Ful ofte in game a sooth [truth] I have herd seye!”
Loonie.
LOL. Not a program taxpayers should ever fund. If somebody wants to create an LGBTQ charity and fund overseas projects, fine, but not on my dime. Amazing, that guy thinks(feels) he is essential🤣🤣🤣
@Oldfish
So much agreed. Regardless of cause, I would love to know how these folks ever came to believe that it was the government’s job to fund their efforts. I suspect the answer is Obama. That admin knew where their bread was buttered in terms of staying in power, and they played it like a fiddle. The likes of Carville can eff right off. Biggest, and most callous scam in American history, and spanning decades, at this point. Sorry, but we are done with that. If one’s cause is legitimate, they shouldn’t have any trouble finding grassroots support.
USAID’s mission has transformed from soft power to cultural imperialism in recent years.
I don’t think that we should be funding cultural imperialism. It just strikes me as undemocratic.
Please label this as AI-generated satire. People might think it’s legit.
This court has allowed majority plaintiffs to rely on the McDonnell Douglas criteria to prove a prima facie case of intentionally disparate treatment when background circumstances support the suspicion that the defendant is that unusual employer who discriminates against the majority.
Parker v. Baltimore & O. R. Co., 652 F.2d 1012, 1017 (D.C. Cir. 1981).
This is the genesis of the “unusual employer” language that has been picked up and repeated by other federal courts, including five federal circuit courts of appeals.
But how do we know how usual or unusual it is for an employer to discriminate against the majority? If it’s not very unusual, then the assumed factual basis for the extra requirement disappears. So . . . on what did the Parker court base its assumption or factual finding that such discrimination is “unusual”?
I looked, and the answer is: nothing. The court just said it, as if saying it made it true – a classic ipse dixit.
The Court has been doing this since Marbury. But “Because we say so” doesn’t make everything it says Constitutional. On this point our friend, original George, keeps harping. While he is repetitive and redundant, he has a point.
What I find objectionable is that the “unusual” descriptor is a statement of fact: that only a tiny fraction of discriminatory employment decision fall into that category. That assumed fact is then relied on to form a rule of law (the plaintiff must additionally demonstrate background circumstances, whereas other plaintiffs need not do so).
I would have hoped the court had some evidence in the record to support it’s crucial fact, but no, it didn’t.
This whole case a big game of telephone. The circuit “split” is really more linguistic than substantive. In weighing the circumstances, it is entirely reasonable to emphasize the need for certain background circumstances – such as the identity of the person in charge of hiring/firing – when evaluating the strength of the claim.
That quote got morphed into a different burden required to prove reverse discrimination. That is wrong and will be narrowly overturned. That will not have any bearing on the actual evaluation of the prima facie case, however. Ames will not prevail once the narrow decision gets remanded. And that’s how the process is supposed to work.
The circuit court denied her Title VII discrimination claim based on its conclusion that she failed to satisfy the one and only prong that is imposed on her due to her not being a minority. The legal issue raised is whether that prong even should be part of the test of a viable Title VII claim. If Scotus says it should not be, then the lower federal courts will have to apply a more lenient test, which she may satisfy.
Scotus does not take cases with issues that are not outcome-determinative. To do so would be to issue an advisory opinion. I believe the folks at Scotus are capable of detecting whether the issue they accept for review is outcome determinative. The fact that they granted cert in this case shows that Ames could prevail on remand if they rule that the extra requirement for non-minorities is not in Title VII.
That is blatantly false. SCOTUS remands cases all the time, and often the party that wins was not the one that won in the specific issue raised before SCOTUS.
That is not what an advisory opinion means by the way.
Given the increasing number of mixed race individuals as well as the disparate experience between immigrants and native born populations, the “added burden for those individuals who are part of a majority group” makes less and less sense, Income surveys show that Indian Americans are on-the-average significantly better paid than any other demographic group. The added burden perhaps served its purpose at that time (1970s) but 50 years later this is a much different social and economic climate. I hope that the Supreme Court will simplify the law as practiced.
What good is law?
America was illicitly and unconstitutionally conquered and “fundamentally transformed.”
Secession was fully constitutional and only “free white persons” were to be admitted to become citizens per the direct immigration law of the men who founded America; it doesn’t get any more absolute than that.
In 1860, the president unilaterally and illegally declared a war and martial law, suspended habeas corpus, and nullified and ignored all fundamental and statutory law at his pleasure.
All of which means, the next tyrant and dictator can and will do whatever he chooses, such as facilitate a foreign invasion and make the immutably abnormal normal, as but one example.
While you are correct about 1860 and the singular incident of secession of states, there has been little done to initiate another tyrant until FDR and his socialist cabal that started this nation on the path of destruction. If you are looking for would-be tyrants I would suggest you start with woodrow wilson and include the “I have a pen and a phone” obama and the totally unconstitutional acts of biden (or whomever was actually running the government for 4 years) if you are afraid of a tyrannical overthrow of our government. After all, it is always the far left that spews their hatred of this nation and burns its flag and sympathizes with our enemies. Yes, I am fearful that if Trump does not disinfect our government in time we will succumb to the worst progressive despotism possible – and then we are finished as a nation.
@whimsicalmama
I would suggest the same, but we are not dealing with educated people anymore, only the indoctrinated, who think history began the day they were born and that their own personal desires supersede anything else another might think or believe. This is evident now in Congress with the too young idiots that have been ‘elected’ on the left. We do not et to relax. The fight for restoring our freedoms has just begun, and it will be resisted mightily after decades of complacency.
The American Founders established a nation, its laws, and its population.
The Constitution of the American Founders provided maximal freedom to individuals and severely limited and restricted government.
The immigration law of the American Founders required those admitted to become citizens to be “free white persons.”
_________________________________________________________________________________________________________________________________
“A DISCORDANT INTERMIXTURE MUST HAVE AN INJURIOUS TENDENCY.”
“The influx of foreigners must, therefore, tend to produce a heterogeneous compound; to change and corrupt the national spirit; to complicate and confound public opinion; to introduce foreign propensities. In the composition of society, the harmony of the ingredients is all-important, and whatever tends to a discordant intermixture must have an injurious tendency.”
– Alexander Hamilton
_________________________
The Founders “secured the Blessings of Liberty to Ourselves and Our Posterity.”
The America of its Founders and American freedom persisted for a mere 71 years.
Something in America went terribly wrong.
It was Karl Marx and his fellow traveler, Abraham Lincoln.
Every act of Lincoln was invalid, illegitimate, illicit and unconstitutional.
Every act of Lincoln and his socialist-cum-communist successors, all inclusive, must be abrogated, revoked and rescinded, immediately and with extreme prejudice, beginning with the purely communist “Reconstitution Amendments.”
_______________________________________________________
“These capitalists generally act harmoniously and in concert, to fleece the people.”
– Abraham Lincoln, from his first speech as an Illinois state legislator, 1837
__________________________________________________________
“Everyone now is more or less a Socialist.”
– Charles Dana, managing editor of the New York Tribune, and Lincoln’s assistant secretary of war, 1848
__________________________________________________________________________________
“The goal of Socialism is Communism.”
– Vladimir Ilyich Lenin
_________________
“The workingmen of Europe…consider that it fell to…Abraham Lincoln…to lead his country through…the RECONSTRUCTION of a social world.”
– Karl Marx and the First International Workingmen’s Association to Lincoln, 1864 https://www.marxists.org/archive/marx/iwma/documents/1864/lincoln-letter.htm
Good for Marlean Ames, Not because she’s Hetro but because the Juris currently weighed standard(s) are maligned with the reality.
Her pleading to the Courts that “How You see it, isn’t the way it is” in the epistemological-jurisprudence is valid. In addition it not only applies to discrimination of Sexuality, but Ethnicity, Religious, Racial, … and speaks to Creed.
Creed being the most significant in this case, ‘On and Between Creeds’.
creed /krēd/ noun
noun: creed; plural noun: creeds
a system of Christian or other religious belief; a faith.
“people of many creeds and cultures”
a formal statement of Christian beliefs, especially the Apostles’ Creed or the Nicene Creed.
noun: Creed; noun: the Creed
“the godparents will then swear that they believe in the Creed and the Commandments”
a set of beliefs or aims which guide someone’s actions.
“not everyone follows a creed of acceptance and understanding”
–
This is not the first time the Argument has been brought to the SCOTUS. Catharine A. MacKinnon brought it in Amica years ago (7th Dist. 1984 ish).
SEE: MacKinnon, Pornography, Civil Rights and Speech
342 GOLDEN GATE UNIVERSITY LAW REVIEW [Vol. 17:297 1987] PORNOGRAPHY
Page 48-49 ~ Golden Gate Law Review
236. MacKinnon, Pornography, Civil Rights and Speech, supra note 4, at 27-28.
The harm of pornography, broadly speaking, is the harm of
the civil inequality of the sexes made invisible as harm be-
cause it has become accepted as the sex difference …. [I]f
you see women as just different, even or especially if you don’t
know that you do, subordination will not look like subordina-
tion at all, much less like harm. It will merely look like an
appropriate recognition of the sex difference …. Pornography
does treat the sexes differently …. [But] the major argument
does not turn on mistaken differentiation . . . . The salient
quality of a distinction between the top and the bottom in a
hierarchy is not difference, although top is certainly different
from bottom; it is power. So the major argument is:
Subordinate but equal is not equal.
231. MacKinnon, Pornography, Civil Rights and Speech, supra note 4, at 3-4.
Having power means, among other things, that when someone
says, “this is how it is,” it is taken as that way…. Speaking
socially, the beliefs of the powerful become proof, in part, be-
cause the world actually arranges itself to affirm what the
powerful want to see. If you perceive this as a process, you
might call it force, or at least pressure or socialization or what
money can buy. If it is imperceptible as a process, you may
consider it voluntary, or consensual, or free will, or human na-
ture, or just the way things are …. Powerlessness means that
when you say “this is how it is,” it is not taken as being that
way. This makes articulating silence, perceiving the presence
of absence, believing those who have been socially stripped of
credibility, critically contextualizing what passes for simple
fact, necessary to the epistemology of a politics of the
powerless
NOTES:
See generally, MacKinnon, Difference and Dominance, supra note 201.
MacKinnon, Pornography, Civil Rights and Speech, supra note 4, at 27-28.
DOING ETHICS Moral Reasoning, Theory, and Contemporary Issues by Lewis Vaughn – Page 304
https://etica.uazuay.edu.ec/sites/etica.uazuay.edu.ec/files/public/Doing%2520Ethics_%2520Moral%2520Reasoning%2520and%2520Contemporary%2520Issues%2520%2528Fourth%2520Edition%2529%2520%2528%2520PDFDrive%2520%2529.pdf&ved=2ahUKEwio5cixg9-GAxVdTDABHWvNAsEQFnoECEQQAQ&usg=AOvVaw3QYLTXHqcyHe5BAgeH81yn
—
MacKinnon, Pornography, Civil Rights and Speech
Pornography, Civil Rights, and Speech”
Michigan Law Authors
Catharine A. MacKinnon
Areas of Interest: Civil Rights
Publish Date: 1985
Publication: Harvard Civil Rights-Civil Liberties Law Review
Publication Type: Journal Article
20 Harv. C.R.-C.L. L. Rev., No. 1 (Winter 1985)
—
(Sorry I don’t have access to the current online libraries anymore, If anyone can post a PDF to MacKinnon, Pornography, Civil Rights and Speech link it would be appreciated, Worse yet I had dropped an external backup drive and lost a lot of valuable work from that era)
Years and Years ago I wrote this for a Moot Court Case at Univ. of Toledo.
My modified argument of MacKinnon’s cuts to the chase:
” … When ever there is an assertion that there is discrimination, this court applies three tiers of test to qualify the charges, Arguments by; Principle, Policy, and Practices, are interpreted by the Court to provide for a venue of solutions. It is the opinion of this Moot Court that this practice has been expanded to include a fourth tier that being, Arguments by Inclusion . This requires the use of a new test in which the law must find the single most unifying apportionment means available to achieve a compelling argument that avoids malapportionment of justice that may violate the Equal protection Clause of the Fourteenth Amendment. Which brings the issue of equality around full circle and whole in principle, and acts as an end as well as a means to equality.
This Moot Court believes that in judicial contest the weight of this argument lies on the issue of women lives & opportunities (harm) and their rights to free exercise, over the cost/benefit analysis of the pornographers rights. We contend that if the perspective is accepted that there is a difference between male paradigms, and the female paradigms, then this acceptable relationship makes the harm of civil inequality invisible. Broadly speaking the harm made invisible as harm because it has become accepted as the sex difference. In Frontiero v. Richardson, 411 U.S. 677, 684-685) (1973). Customs of earlier times were ” no longer tenable” to exclude women from injuries. Again in 1973 the Court ruled that publications which presented ‘Male Interest” and “Female Interest” are prohibited , in Pittsburgh Press Co. v. Human Rel. Comm’n, 413 U.S. 367, 392 (1973). Title VII of the Civil Rights Act of 1964 is not limited to economic or “tangible” discrimination. A claim of “hostile environment” because of sexual harassment is a valid basis, in Meritor Savings Bank v. Vonson, 477 U.S. 57 (1986).
[My own new Forth Test/Prong below:]
In the interest of demonstrating the Rational Principle Test of the ‘Arguments by Inclusion’, consider the following analogy:
If you see Black (sic: Straight People) people as different, there is no harm to segregation; it is merely a recognition of that difference. To neutral principles, separate but equal was equal. The injury of racial separation to Blacks arises ‘solely because [they] choose to put construction upon it. ‘ Epistemologically translated: how you see it is not the way it is.’ Similarly, if you see women as just different, even or especially if you don’t know that you do, subordination will not look like subordination at all, much less like harm. It will merely look like an appropriate recognition of the sex difference.
This test is to insure that what precludes us from reaching an effective law is not ‘tainted moral fabric’ from within our society.
If the perspective is accepted that there is a difference between male (sic: Straight People) paradigms, and the female (sic: Gay People) paradigms, then this acceptable relationship makes the harm of civil inequality invisible. Pornography dose treat the sexes differently, so the case for sex differentiation can be made here. Men as a group (although some individuals may be) do not tend to be treated the way women are in pornography. As a social group, men are not hurt by pornography the way women as a social group are. Their social status is not defined as less by it. So the major argument dose not turn on mistaken differentiation, particularly since the treatment of women according to pornography’s dictates make it all too often accurate. The salient quality of a distinction between the top and the bottom in a hierarchy is not difference, although top is certainly different from bottom; it is power. Thus the major argument is: subordinate but equal is not equal. ….”
– Have at it Kiddos! –
#74. Nice try at putting that into words.
You’re really getting at the blindspot created by normatives perhaps. Good try…
The singular American failure is the judicial branch, with emphasis on the Supreme Court.
The Civil Rights Act of 1964 is unconstitutional.
The Civil Rights Act of 1964 is an illicit, unconstitutional, and improperly ratified amendment to the Constitution.
The Civil Rights Act of 1964 denies multiple constitutional rights and freedoms of individuals regarding choice and preference, the right to private property et al.
The Civil Rights Act of 1964 unconstitutionally compels particular opinions and beliefs and acceptance of particular behaviors.
The Ohio Laws & Administrative Rules vest power in managing officers and other employees.
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Ohio Laws & Administrative Rules
Section 5139.02 | Appointment of managing officers.
(2) Each division established by the director of youth services shall consist of managing officers and other employees, including those employed in institutions and regions as necessary to perform the functions assigned to them. The director or appropriate deputy director or managing officer of the department shall supervise the work of each division and determine general policies governing the exercise of powers vested in the department and assigned to each division. The appropriate managing officer or deputy director is responsible to the director for the organization, direction, and supervision of the work of the division or unit and for the exercise of the powers and the performance of the duties of the department assigned to it and, with the director’s approval, may establish bureaus or other administrative units within the department.
The appropriate managing officer or deputy director is responsible to the director for the organization, direction, and supervision of the work of the division or unit and for the exercise of the powers and the performance of the duties of the department assigned to it and, with the director’s approval, may establish bureaus or other administrative units within the department.
(C) Each person appointed as a managing officer shall have received special training and shall have experience in the type of work that the person’s division is required to perform. Each managing officer, under the supervision of the director, has entire charge of the division, institution, unit, or region for which the managing officer is appointed and, with the director’s approval, shall appoint necessary employees and may remove them for cause.
As a more enlightened now senior domestically born intellectually, politically and religiously independent American citizen of American citizen parents, if SCOTUS were to apply the complete ‘letter of the law’ to all cases brought before them they would have to make their decisions at least in accordance with these nine questions, based upon the intentions, principles, purposes and spirit of the Founders in the Preamble to the US Constitution (coloring, flavoring and establishing legal context for all that follows): 1) does it favor the majority of ” We the People,” 2) does it maintain “Order,” 3) does it favor “perfection” (e.g., moderation, balance and stability), 4) does it establish “Justice” (not specified to be only criminal justice), 5) does it ‘ensure’ “domestic tranquillity” (not specifying prescription medications), 6) does it “provide for the common defense” (not specified to be only militarily), 7) does it “promote the general Welfare” (not specifying direct payments to any unfortunate minority), 8) does it “secure the Blessings of Liberty to ourselves and our Posterity” (not specified to include corporate subsidiaries; not “people”) and 9) is it consistent with the rest of the Constitution? And, no precedent setting should be allowed unless ultimately amended into the Constitution for permanence; mitigating ambiguity.
Furthermore, as the Founders appear to have had a great ‘leap from faith’ between the writing of the Declaration of Independence and the Constitution, the Justices probably should factor-it-in that charity, morality, spectator sports (e.g., KJV: Judges 16: 25-27, minimally) and spirituality are all within the domain and purview of the Church; establishments of religion. In addition to the ‘letter of the law’ as per the Founders, I found through secular mind power methods that, intentionally or not, they embedded some of the higher laws of God and/or nature (my preference) in the Preamble (minimally, probably just a holdover of former beliefs until the reality of war struck them in their brains). Add to it that the rich never pay their fair share of taxes (e.g., the more one has to lose the more they should contribute to preserve it) and continue to exert undue influence in all matters of law, order and taxation, we now have the failed and failing unconstitutional America of today. If there is to be a ‘reset’ of any kind, it should be back to the Constitution of the United States of America of 1787, as ratified and lawfully amended and modified (e.g., valid treaties; no other precedents) since. Anything else is just slaves serving their rich masters.