Thomas v. Hill: After the Storm

Don’t Mourn, Organize

By now, the Clarence Thomas affair has taken on the quality of a cat scratching for a place to bury its turds. The purring noises from the White House hid a determination to keep such matters under wraps. “I was thinking of my little grandchildren hearing some of the graphic sex allegations,” George Bush burbled late last week. How much safer to deal with such “messy situa­tions” behind closed doors. “I think some­times when you get to subjects that are sensitive, it is well to delegate to your elect­ed officials” — those same honorable men who covered up Anita Hill’s charges until a timely leak and a phalanx of women from the “lower” house forced the Senate to act.

Kicking up the kitty litter, Bush confided that he’d been “glued” to the set, but also observed that what he saw “was deeply offensive to American families.” In one breath, he acknowledged “the legitimate problem of sexual harassment,”  and in the next, disparaged “women activist feminist groups … I don’t think they speak for all women in this country.”

Here was the backlash in full force, and the Republican strategy of attack-and-deny laid bare. Its aims go well beyond the im­mediate issue, and as Thomas was sworn in, Poppy’s claws came out. Sexual secrecy was only one of his demands. While the president squatted above the fray, his min­ions called for a purge — not just of liberals, described by Thomas as “the old order,” but of feminists, especially in media.

[related_posts post_id_1=”644641″ /]

Among the targets were Nina Totenberg of National Public Radio, who had helped break the sex-harassment story, and Mau­reen Dowd of The New York Times, whose commentary brought a feminist perspective to the world’s most powerful men’s club. That must have frightened Poppy and his peers even more than Anita Hill’s charges: Here was a network of women journalists speaking truth to entrenched male power. The right lost no time in demanding their heads.

“I perceive a total perceptual split be­tween the chattering classes … and normal humans,” wrote Peggy Noonan, former speech writer for Reagan and Bush. On the Times‘s op-ed page, Noonan raised the fa­miliar specter of Republican populism — in which hard-working, family-oriented Amer­icans are pitted against a perverse and de­tached liberal elite. Warming to the task, Noonan compared a “Maybellined” wit­ness for Judge Thomas with a friend of Hill’s “who spoke with a sincere, unma­keuped face,” Noonan was echoing a pow­erful — if subliminal — tactic in the assault on feminism: dyke-baiting.

During the hearing, Senator Alan Simp­son muttered darkly of Professor Hill’s “proclivities.” Now a rumor is circulating that the Democrats had agreed not to intro­duce evidence of Thomas’s pornomania if the Republicans would sit on evidence that Hill is a lesbian. (If such evidence actually existed, this would have been one of the few deals that worked to the Democrats’ favor, since most people — including some liberals — are prepared to believe that lesbians hate men, but not that men who love porn hate women.)

Inevitably, the Thomas hearings became fodder for the roiling p.c. debate. Anyone who doubts that this word has become a cudgel for feminist-bashers should examine the Wall Street Journal’s editorial of Octo­ber 17, attacking “the state of political cor­rectness in the nation’s newsrooms.” The Times stands indicted for “total capitula­tion” by turning “its front page over to editorials by Maureen Dowd.” Elsewhere on the same editorial page, the Journal‘s Washington bureau chief challenges Nina Totenberg’s claim that she left the now-­defunct National Observer because of sexu­al harassment. (The real reason was plagia­rism, her former editor opines.) Both the Observer and the Journal are owned by Dow Jones, which may be why the editorial railed against “the catechism … that no charge of sexual harassment can ever be overblown or even plain wrong.” But male bonding, even more than any corporate tie, underlay the editorial’s defense of Juan Williams, a Washington Post writer who had slammed Thomas’s accusers, though he stands accused of sexual harassment bv sev­eral female colleagues. Quoth the Journal: “Free Juan Williams.”

[related_posts post_id_1=”720671″ /]

The right is determined to drive a wedge between “normal” women and feminism, between liberals and liberation, between sexual politics and realpolitik. The issue of sexual harassment is tailor-made for this agenda, because it plays to profound anxi­ety about changing gender relations. This shift is by no means limited to erotic eti­quette, but reforming these rites of arousal fore es men and women to confront primal insecurity and rage. Thus the confusion in the eyes of Democratic senators as they faced Clarence Thomas, as if a hooded brow could hide their empathy and the double-bind it placed them in.

Though the Democrats were widely ac­cused of wimpiness, the more enraging pos­sibility is that they were actively ambiva­lent about Anita Hill’s charges, just as the Democratic party is patently wary of femi­nism. The Republicans are just as anxious but far less held back, and the image of Alan Simpson thrashing, Orrin Hatch glar­ing, and Arlen Specter threatening, were a frieze of male panic and its reaction-forma­tion, rage.

But if feminists regard the Thomas hear­ings as a failure, the right truly will have won. In reality, this was an annunciation of a new, gender-based politics, with the po­tential to challenge the traditional configu­ration of left and right, which is based on a much older model of class. Feminism doesn’t fit into American politics as cur­rently practiced: at its most fundamental, it transcends class, defies racial and regional interests, and enters into virtually every public institution, as well as the most inti­mate interactions. No one can escape sexu­al politics — yet no one knows precisely what they are.

This suggests why the old order — not Thomas’s version but male-dominated con­servativism — was able to strike back so ef­fectively. Anita Hill’s testimony threatened not just relations between dudes and babes; it shook the very basis of American politics, and demanded that the system incorporate issues of gender along with those of race and class. No wonder the European press saw the hearings as “a great American psy­chodrama” (Le Monde), “humiliating for a great democracy” (Il Giornale of Milan): no other Western society is as willing as the United States to alter the sexual order.

[related_posts post_id_1=”728457″ /]

A truly bi-gender system world bring American politics closer to human nature. And the Thomas hearings were a gauge of just how much feminism has changed the alignment-scheme, redefining words like progressive and conservative. It’s clear from the struggle for reproductive rights, the at­tack on political correctness, and the re­sponse to sexual harassment, that the time has come to affix a new label to anti-femi­nist liberals: call them social conservatives.

This evidence of a new politics is one reason I’m convinced the Thomas hearings are a watershed for the women’s movement. Another is the emergence of a genu­ine hero: Anita Hill. Her refusal to play the victim, and her ability to withstand trial­-by-fulmination, epitomizes the dissemina­tion of feminism. Women across the coun­try, in a variety of occupational settings, now share a common sensibility. Although that perspective is most evident in the pro­fessions (as the strong support for Thomas among working-class women suggests), if feminism is true to the experience of all women, it will eventually overcome the barriers of caste.

It remains to be seen whether social con­servatives will nip the concept of sexual harassment in the bud. Polls show that most people think erotic innuendo should not be regulated by law. But the same ma­jority agrees that there is such a thing as sexual harassment, and that it ought not to be tolerated. This contradiction has yet to be resolved in laws. Meanwhile, the Thomas hearings produced a flood of complaints from women, inaugurating a great debate on the subject and its relationship to power. All of which presents a profound opportu­nity for feminists to organize women around yet another dirty secret, and in the process foster social change.

To shift the status quo — especially when it is grounded in the libido — is a monu­mental struggle. And the secret appeal of right-wing reasoning, with its conflation of freedom and male power, decency and re­pression, “common sense” and sexual or­thodoxy, can never be underestimated. But there is solace to be found in the social struggles of the past. The labor movement is in no great shakes today, but there was a time when the very idea of organizing workers was regarded as a violation of “natural law.” The propaganda was fierce, the backlash was formidable, and there was significant resistance among workers them­selves. At the darkest moment, a labor lead­er was framed for murder and sentenced to execution. He, too, was named Hill, and his last words pass easily from Joe’s mouth to Anita’s: “Don’t mourn. Organize!” ❖

From The Archives From The Archives THE FRONT ARCHIVES

Anita Hill vs. Clarence Thomas: When Conservatives Nipped the Concept of Sexual Harassment in the Bud

It was the most riveting daytime soap opera since the Watergate hearings — an all-male chorus line of U.S. senators attacking the morals and motives of Anita Hill, a conservative law professor who had accused Supreme Court nominee Clarence Thomas of sexual harassment. Thomas went on to be narrowly confirmed by the Senate, 52-48.

As Richard Goldstein reported in his postmortem in the October 29, 1991, issue of the Voice, “If feminists regard the Thomas hearings as a failure, the right truly will have won. In reality, this was an annunciation of a new, gender-based politics, with the potential to challenge the traditional configuration of left and right.” Well, as the current confirmation hearings on Brett Kavanaugh are revealing, perhaps the challenge was not strong enough. That said, Goldstein also pointed out how even back then conservatives were happy to demonize the press: “Here was a network of women journalists speaking truth to entrenched male power. The right lost no time in demanding their heads.”

[related_posts post_id_1=”639194″ /]

Amy Taubin zeroed in on the optics coming out of the hearing room: “Caught off guard, the TV people could do little more than set up their cameras and roll tape, while the White House was forced to improvise damage-control tactics that shifted daily.” The Voice film critic exposed the holes in the GOP’s script: “Understanding that TV is nothing if not narrative, the Republicans got to work like hack writers from Troma Films, tossing out one high concept after another. Friday’s script — with Hill the dupe of a satanic, left-wing conspiracy — developed second-act problems when they couldn’t work her support for [conservative judge Robert] Bork into the story line. Saturday was the spurned woman scenario; with the mention of Fatal Attraction, 11 courtesy calls became proof of erotomania. By Sunday, the scorned woman had developed delusions — possibly to cancel any weight that Hill’s successful polygraph test might carry.”

Laurie Stone asked why polls showed that a majority of women believed Thomas, even though “Hill passed a lie detector test. She had nothing to gain and everything to lose by testifying. She spoke credibly, weaving a story about Thomas he then proceeded to act out. Hill described a man who was crude, inept, driven. He asked for a date but couldn’t take no for an answer. He hammered away, wanting to know why he was being turned down. He used his authority to feel big at the expense of making a woman feel small.” Stone also discusses the social relations that got steamrolled by the male senators: “Throughout the hearings, the divided nature of human response was simplified or denied. Lost were distinctions between sexual harassment and harmless flirting. Flirting disappeared from public discussion, as if all inviting lines might conceal nasty messages. But every woman knows the difference between sex play that’s welcome and being hit on while radiating don’t. That don’t is the crux of sexual harassment.”

And finally, the absurdity of an all-male bevy of senators closing ranks around a big fan of the porn actor Long Dong Silver is captured in Lynda Barry’s “A Cock & Bull Story.”


City Unions Race to Recruit Members After High Court Ruling

The Supreme Court’s 5-4 ruling yesterday in Janus v. AFSCME Council 31 — which overturned a 41-year-old ruling that nonunion government workers in unionized workplaces have to pay fees to help cover the costs of union activities they benefit from — was a major blow to labor unions, and the latest in a string of far-right rulings since Justice Neil Gorsuch was appointed by Donald Trump. But leaders of New York City public-sector unions say that being required to represent nonmembers for nothing won’t hurt them as much as it was intended to, because they’ve been preparing for it by signing up as many members as possible.

“For the past three years, we’ve been preparing our members for this day,” says Lester Crockett, president of Civil Service Employees Association Region 2, which covers the New York City metropolitan area. The 300,000-member union has eight workers in its Albany headquarters taking phone calls from workers who want to stay, quit, or are borderline, he adds.

AFSCME District Council 37 executive director Henry Garrido told a rally at City Hall hours after the Janus decision that his union represented 28,000 nonmembers just three years ago. Today, he said, there are less than 7,000.

“We knew this was coming,” says Gloria Middleton, president of Communications Workers of America Local 1180, which represents about 8,600 city administrators. Middleton says 94 percent of these administrators are now full union members; as for the others, she says, “we let them know what they will be losing if they don’t join”: They can’t vote in union elections or to ratify contracts, aren’t eligible for union-funded education programs, and, under a state law that went into effect April 1, the union no longer has to represent them in disciplinary proceedings.

Ever since the Supreme Court’s 1977 Abood v. Detroit Board of Education ruling, public-sector unions have been unable to collect dues from nonunion workers to cover explicitly political activities such as campaign contributions. But they can charge separate “agency fees” that go toward such things as the costs of collective bargaining and representation in grievance procedures, which cover all employees, union members or otherwise.

[related_posts post_id_1=”587272″ /]

The lawsuit ruled on yesterday was filed by Illinois state employee Mark Janus with the backing of several anti-union organizations. They have argued that all activity by public-sector unions is objectively political, because it affects public spending and policies. The court upheld Janus’s claim that his free-speech rights were violated because he was forced to contribute about $45 a month to an organization that opposed slashing his pension and those of his fellow workers.

That court challenge was directly aimed at undermining public-sector unions, which now account for about half of the nation’s union members. In New York State, the most heavily unionized state in the country, about two-thirds of public-sector workers are members, compared with about 15 percent in the private sector, according to the state comptroller’s office. In 2016, according to a City University of New York study, the proportion of agency-fee payers in major city unions ranged from 4.8 percent of membership in the United Federation of Teachers to 16.5 percent in DC 37, which currently represents 125,000 city workers.

The Janus case was part of a concerted campaign to chip away at workers’ rights and unions’ power through litigation and legislation, much like the anti-abortion movement’s tactics of backing measures such as parental-consent laws, compulsory waiting periods, and intentionally burdensome safety-code regulations.

Over the last eight years, six states — Wisconsin, Michigan, Indiana, West Virginia, Kentucky, and, tentatively, Missouri — have enacted so-called right-to-work laws (called “right to work for less” by union supporters), which, like the Janus decision, allow workers to refuse to pay fees to the unions that represent them. Others have repealed “prevailing wage laws” that set floors for wages on public construction projects, and placed severe restrictions on public workers’ collective bargaining. In Wisconsin, where Governor Scott Walker pushed through a 2011 state law prohibiting public-sector unions from bargaining over anything but wage increases that don’t exceed the rate of inflation, the share of government workers who are union members fell from 50.3 percent in 2011 to 22.7 percent in 2016.

Several states, including Ohio, Indiana, Iowa, and Alabama, have prohibited local governments from setting minimum wages higher than the state’s. And Iowa in 2017 passed a law that required public-sector unions to seek recertification every time their contract expired — and to win, they had to get a majority of all workers in the bargaining unit, not just the ones who actually voted. (In recertification votes last October, Iowa unions won almost 98 percent of the vote, but lost 32 out of 468 bargaining units because of the hyper-majority mandate.)

[related_posts post_id_1=”419201″ /]

These measures, associated litigation, and anti-union propaganda campaigns have been backed by a network of far-right financiers, most notoriously the Koch brothers, but also local “little Koch brothers” such as David Humphreys and Rex Sinquefield in Missouri, packing-materials manufacturer Richard Uihlein in Illinois, and Betsy and Dick DeVos in Michigan.

At the court’s oral arguments in February, virtually all of the roughly 100 demonstrators supporting Mark Janus outside came from the Koch brothers’ Americans for Prosperity and the much lesser-known State Policy Network, a nationwide alliance of 64 state-based think tanks. In a 2016 fundraising letter, the network said that cutting off “big government” unions’ income from dues and fees would deliver the “mortal blow” that would permanently break the left’s “stranglehold on our society.” The Illinois Policy Institute, its Chicago-based affiliate, represented Janus through its litigation branch.

“People like the Koch brothers and these big billionaires, if they can do anything to cause us to have less strength, they’ll do it with a smile on their face,” says the CSEA’s Crockett.

The Janus decision may also open the door to future litigation chipping away at union rights, such as that of being workers’ sole representative in negotiations over pay, benefits, and working conditions. “Designating a union as the employees’ exclusive representative substantially restricts the rights of individual employees,” Justice Alito wrote, noting that it prevents them from negotiating with their employer on their own.

While that comment is legally dicta, or not a binding part of the decision, it is the same tactic Alito used a similar tactic in his opinion in the 2014 Harris v. Quinn case — a 5-4 decision that exempted Medicaid-paid home healthcare workers from agency fees on the grounds that they were only “partial public employees” — to signal that he would welcome a challenge to Abood. In that dicta, he called the Abood precedent “questionable on several grounds,” arguing that bargaining to increase public workers’ pensions, for example, was inherently political activity.

In the meantime, union leaders are in the position of having to convince workers that they’re better off paying dues to become union members even though they’d reap the benefits of collective bargaining and grievance procedures whether or not they join. That’s left the leaders, paradoxically, to echo arguments made by anti-union forces that having dues be voluntary will compel unions to do a better job of reaching workers. “This is something we should have always been doing,” says Crockett. “We got too comfortable with money coming in automatically. We stopped talking to our members.”

“We’re in for a fight, but it’s a fight we can win,” insists Middleton. Some CWA locals in right-to-work states have 95 percent union membership among the workers they represent, she adds. “When they understand what unions are about, they join.”


Trump Court’s Ruling on Anti-Abortion Centers Could Be Start of Assault on “Roe v. Wade”

Among a flurry of decisions on Tuesday, the Supreme Court overturned California’s law requiring so-called crisis pregnancy centers — outposts set up by anti-abortion groups to dissuade pregnant women from having the procedure — to inform women about what reproductive health services they can get elsewhere, on the grounds that it violates their First Amendment rights.

Advocates for women’s health immediately assailed the decision as enabling these centers to carry on with deceptive practices they’ve been using for decades to lure in unsuspecting women and then bombard them with anti-abortion propaganda.

“Because they aren’t real medical clinics, they’re able to avoid a lot of the regulation and oversight that legitimate healthcare providers are subject to,” Pilar Herrero, the human rights counsel for the Center for Reproductive Rights, told the Voice before yesterday’s ruling. “This can make it really difficult for patients to understand what kind of care or services they’re actually able to receive at these places, and can also divert patients from accessing the real medical care that they need in a timely manner.”

The case, National Institute of Family and Life Advocates v. Becerra, took on California’s Reproductive FACT Act, passed in 2015, which required that all licensed clinics that don’t provide a full range of reproductive care to post information about state-provided affordable reproductive care, including prenatal care, birth control, and abortions. The law also mandated that unlicensed clinics with no medical provider disclose that they were not licensed medical facilities.

While California presented the FACT Act as a truth-in-advertising measure, the National Institute of Family and Life Advocates — a Virginia-based nonprofit that provides legal advice to anti-abortion centers — argued that the law violated centers’ First Amendment rights. In a 5-4 decision, the Supreme Court agreed, overturning two lower-court rulings that had upheld the California restrictions. Justice Clarence Thomas wrote for the majority that the law “targets speakers, not speech, and imposes an unduly burdensome disclosure requirement that will chill their protected speech.”

Crisis pregnancy centers, which outnumber genuine women’s clinics nationwide by a large margin, have frequently been accused of providing inaccurate medical information. A 2015 study by NARAL Pro-Choice California that sent undercover investigators into CPCs found that 91 percent of the centers told the visiting women that abortions cause breast cancer, miscarriage, infertility, or “post-abortion depression.”

[related_posts post_id_1=”562988″ /]

Christina Chang, chief external affairs officer of Planned Parenthood of New York City, told the Voice that CPCs target pregnant women who are unsure about their options, and may be confused and looking for accurate information. By providing free services such as ultrasounds and pregnancy tests, she explains, these centers attempt to convince women that they are talking to a legitimate healthcare provider: “It’s really just an excuse to try to dissuade them from getting information that they need to make the best decision for themselves.”

Elizabeth Estrada, New York field and advocacy manager at the National Latina Institute for Reproductive Health, noted that being propagandized by someone posing as a healthcare provider is especially troubling for women who are already facing cultural stigma or a lack of family support. “Being lied to by someone you think is going to support you in an already really difficult decision is hugely disappointing and hurtful,” she said.

As advocates mull over these concerns, anti-abortion organizations are applauding the decision. NIFLA celebrated the victory on its website, exclaiming, “VICTORY! The U.S. Supreme Court just handed down a 5-4 ruling on the NIFLA v. BECERRA case, overturning the coercive law that forced pro-life pregnancy centers to provide free advertising for tax-funded abortions.”

For New York City, which requires its roughly one dozen CPCs to post that they do not have a licensed medical provider on staff — a law that many of them have flouted — the impact of the Supreme Court’s decision is not immediately clear. NARAL Pro-Choice America president Ilyse Hogue noted yesterday that the court said it would consider upholding a narrower law requiring centers to post that they’re not medical providers, which would seem to provide hope that New York City’s law would pass muster.

There’s also been some discussion that this ruling could provide an avenue for organizations to challenge “informed-consent” laws that require doctors to provide state-mandated information on abortions that can at times be incorrect. The Supreme Court’s NIFLA ruling, says Amy Myrick, staff attorney for judicial strategy at the Center for Reproductive Rights, tries to set aside these restrictions by “saying that they’re related to informed consent for a medical procedure — an area in which it’s permissible for the state to mandate speech,” even though presenting false and misleading information strays far from bona fide “informed consent.”

[related_posts post_id_1=”419790″ /]

And Hogue has also noted that even if this court case was fought on strictly First Amendment grounds, it’s likely only one step in a legal battle by opponents of reproductive rights to take advantage of the Trump Supreme Court to overturn legal abortion:

Reproductive rights legal advocates are currently working to identify which cases making their way through the lower courts are likely to present the next Supreme Court challenge to abortion rights. Anthony Kennedy’s impending retirement has never seemed more pivotal.


Conservatives Take Gay Couple’s Cake, Gripe They Can’t Eat It Too

Happy Pride Month, everyone. If you’re LGBTQ et alia, rest assured that even though your rights remain under attack — as a recent Supreme Court decision showed — conservatives are still terrified of you, and have gotten no better at explaining why anyone else should be.

The week kicked off with a finding for the plaintiff in Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, reversing the commission’s finding that Masterpiece owner Jack Phillips had violated a gay couple’s rights by refusing to make and sell them a wedding cake.

News outlets explained that Justice Anthony Kennedy’s majority opinion focused on the nature of the commission’s decision — specifically that it “disparaged Phillips’ faith as despicable” and thus treated him unfairly — and was not comprehensive of all anti-gay discrimination cases. In this sense the ruling, they reported, was “narrow,” to which many conservatives on Twitter — including Donald Trump Jr. and Republican senator John Cornyn — replied, Whattaya mean narrow, the vote was 7-2! and attributed the characterization to, natch, #MediaBias.

Libertarians were expectedly sour about the narrowness of the ruling. Without an obvious First Amendment ruling in favor of bakers who refuse to make gay wedding cakes, groused Jacob Sullum at Reason, “bakers with religious objections to gay weddings will have no constitutional defense against demands that they nevertheless supply cakes for them, as long as the officials enforcing that expectation keep their prejudices under wraps.” But can liberals suppress their hatred of Christ convincingly enough to advance their gay agenda? It’ll be an effort, surely!

[related_posts post_id_1=”591099″ /]

But generally conservatives were happy that Phillips and Masterpiece didn’t have to make a wedding cake for the gays, and some expressed hope that someday anyone could say, “We don’t serve your kind here,” and get away with it.

National Review’s David French — longtime hardcore religious-right opponent not only of the gay marriage–legalizing Obergefell v. Hodges, but also of the birth control–legalizing Griswold v. Connecticut — said the ruling “strikes a blow for the dignity of the faithful,” and cheered that, though the court “essentially punted on the question” of Phillips’s First Amendment rights, it still found “Colorado was motivated by anti-religious animus” and, thus, “any ruling the commission imposes will have to apply on the same basis to different litigants, regardless of faith and regardless of the subjective ‘offensiveness’ of the message.… The Court not only prohibited favoritism, it imposed a high cost on censorship.”

If you’re wondering why that’s so exciting to French — whose obvious interest is not stopping censorship, but reversing gay rights — consider that the decision clears a path for other non–gay marriage cake-message court cases, any one of which could reopen the Masterpiece argument and perhaps win broader discrimination rights for anti–gay marriage businesses.

And maybe not just anti-gay businesses: Ben Shapiro, editor-in-chief of the Daily Wire and, according to the New York Times, right-wing dreamboat, was pissed the decision didn’t address the “freedom of association” aspect of the case: “The Constitution was long understood to guarantee people the right to do business with whomever they chose,” Shapiro wrote. “That right has been abrogated in recent decades by anti-discrimination law — well-intentioned, but burdensome.”

If you’re wondering if Shapiro knows what this implies about the Civil Rights Act and public accommodation, I regret to tell you he does: “I think it’s idiotic not to bake a cake for a gay person, a black person, a Jew, or whomever,” Shapiro went on. “But I also think that’s an issue the government has no role policing, since I have no right to anyone else’s services at the outset. Capitalism does a rather fantastic job of policing such discrimination, given that other shopkeepers can cater to everyone…”

Well, at least he’s not trying to sugarcoat it. Nor was South Dakota state representative Michael Clark, who celebrated the Masterpiece decision by posting on Facebook, “If [a businessman] wants to turn away people of color, then that [sic] his choice.” (Clark, unlike Shapiro, later apologized.)

The American Conservative’s Rod Dreherevery bit as anti–gay rights as French, and then some — announced himself “stunned” and “grateful” at the decision, but also worried: “How would this ruling have gone if the Colorado commissioners had not been so blatantly bigoted in their comments about the Masterpiece case?… Masking your bigotry in that way is not hard to do, you know.” (If that’s the case, I wonder why Dreher doesn’t put more effort into it.)

Despite their SCOTUS victory, conservatives, being the drama queens they are, portrayed themselves as victims of an oppressive regime bent on forcing them to treat gay people like everyone else rather than pariahs as their religions demand.

When another court ruled against calligraphers who refused to do gay wedding invitations, Rod Dreher cried, “Thus is another Christian business severely damaged by gay bullies out to punish the wicked…gays and their allies are going to seek to destroy the livelihoods of all Christians who fail to give them what they want,” etc.

“Only an ignorant person could fail to see that over the last half-dozen years it is the opponents of sexual liberation who have become the outcasts,” cried R.R. Reno at First Things. “The rich and powerful have adopted the LGBT agenda as their most beloved cause. Corporate America lends its wealth and power. Higher education does as well. Just days before the Supreme Court handed down its decision, the FBI and CIA announced June 2018 as ‘LGBT Pride Month.’ ” The FBI! What would J. Edgar Hoover think?

Also, the gay couple in Masterpiece “do not belong to a vulnerable class of Americans,” scoffed Reno: “IRS data show that male-male married couples filing jointly have dramatically higher family incomes than other married couples, to say nothing of the disintegrating working-class families who don’t enjoy the benefits of marriage.” Rich homosexuals sneering out the window of their luxury cars at straight, salt-of-the-earth “working-class families” clustered in America’s creek bottoms: I predict that’ll be the next big Jon McNaughton painting.

[related_posts post_id_1=”591565″ /]

Later, when a CrossFit franchise in Indianapolis collapsed because employees and members quit in protest of the cancellation of a Gay Pride event — and CrossFit executive Russell Berger, who supported the cancellation, tweeted that “celebrating ‘pride’ is a sin” and denounced the “intolerance of the LGBTQ ideology,” and got fired for it — conservatives reacted as you might expect.

“If [CrossFit] are proud of you ‘no matter’ who you love, then why were they singling out their gay clients for a special workout?” asked RedState’s Alex Parker. “Sadly, CF’s respectful diversity does not apply to the only type that actually matters — diversity of thought.” Which is crucial to any exercise business. Parker also complained about “the crackdown of cultural Marxism — so-called ‘political correctness’ — onto what has become an intellectual police state,” whatever that means.

“Gay activists and their supporters among the gym’s employees destroyed this Christian’s business,” declared, you guessed it, Rod Dreher, who compared the situation to Czechoslovakia under Soviet tyranny. (“Those who ‘live within a lie,’ says [Vaclav] Havel, collaborate with the system and compromise their full humanity,” Dreher quoted from his own book The Benedict Option.)

Later Dreher carried a report, allegedly from one of his readers, that Tulsa, Oklahoma, had “renamed four blocks of a street in the city ‘Pride Street’ in honor of the LGBTQ community there,” and said he’d heard from “an old liberal friend” that “gay couples are now going to prom together” even in counties carried by Trump. “Questions to readers living in Red America,” he asked: “How certain are you that you see what’s happening right under your nose, among the young people in your kids’ school?”

Still later, in a post called “Coming Next: Woke Pederasty,” Dreher lamented, “Now, normalizing drag queens for children is the big woke thing. We’ve had Drag Queen Story Hours in libraries nationwide. Now Netflix is turning drag queens into animated superheroes, and RuPaul’s streaming service is turning drag queens into child superheroes.… Can’t you see what’s happening?… Law and politics cannot possibly be enough to keep sanity alive as Weimar America descends further into decadence.… Yeah, I know, ha-ha, the right-wing Christian is freaking out again. Fine, laugh. Doesn’t bother me…”

Now, these aren’t great days for tolerance in general, and it’s true that in the Age of Trump we can’t be sure that dumb, overheated rhetoric against any minority won’t catch fire with enough citizens to do real damage. But at this point and in this case, at least, we can take some comfort that the dumb, overheated rhetoric is coming from people who couldn’t lead flies to a hog lot.


Dee Farmer Won a Landmark Supreme Court Case on Inmate Rights. But that’s Not the Half of It.

Dee Farmer gets a fan letter every now and then.

She’s legally blind, so someone reads her mail to her. The notes come from all over, from people thanking her for what she did to protect them.

Farmer says she doesn’t keep the letters. “I would like for my legacy to be that I changed injustices for a multitude of people who were or would have suffered unjustly,” she tells the Voice in an email.

January 12 marked 20 years since the U.S. Supreme Court heard the landmark case that bears her name: Farmer v. Brennan. The story made national headlines in 1994. “Prison’s Intolerable Horror,” blared the Miami Herald. “Federal Inmate Contends Prison Rape Violated Constitutional Rights,” the Associated Press announced. “Rape of Transsexual Inmate Raises Issue of Prison Liability,” declared the Washington Post.

Long before Orange is the New Black portrayed a transgender convict as the new norm, there was Dee Farmer. From a prison cell, she instigated a high-level legal argument that would recalibrate our reading of the Bill of Rights.

Because the Eighth Amendment to the U.S. Constitution forbids cruel and unusual punishment, Farmer contended, prison officials had a legal duty to protect inmates from harm.

Six months later, in June 1994, all nine justices of the Supreme Court concurred.

Born Douglas Coleman Farmer in Baltimore, Maryland, Dee Farmer grew up in a loving, religious home.

She says she always identified as female.

“I was pretty much a loner and didn’t play with other children or have many friends,” Farmer, now 48, says. “I felt I was ‘different’ and that I didn’t fit in due to my effeminate nature.”

Other kids mocked her. So did grown-ups. “I don’t want that little faggot in my car,” her uncle hollered as a group of kids caught rides to the beach.

Farmer began hormone therapy in her teens and wore women’s clothes. Around age 16, she fell in love with an older woman and dropped her female identity, but when the relationship ended a year later, she resumed life as a woman, eventually changing her name to Dee Deirdre Farmer.

Though she had considered a career as an airline stewardess (her words), Farmer had never worked a job where she’d earned an honest dollar when a judge sentenced her to two decades in federal prison in 1986 for credit card fraud.

Housed with male inmates, Farmer stood out. There were the silicone breast implants. The makeup. Her predilection for wearing her uniform shirt off one shoulder. Smuggled-in estrogen pills smoothed her skin. She’d undergone an unsuccessful black-market operation to remove her testicles — a botched job she attempted to complete while behind bars, with a razor blade. She was also HIV-positive.

By 1989, prison officials in Oxford, Wisconsin, had had enough of Farmer. Her case manager noted in a deposition that she’d been involved in a “sexual act” in the recreation yard. And she had participated in a scheme in which she’d used the prison phone and someone else’s credit card to have flowers and fruit baskets sent to the facility. (A holiday prank, one of her former attorneys recalls.) So the Federal Bureau of Prisons transferred Farmer to a maximum-security prison in Indiana, placing her — a young, nonviolent woman — within a violent male population.

She had been in her new cell in Terre Haute for a little more than a week on April 1, 1989. It was on that day, Farmer would allege, that a fellow inmate approached her and demanded sex. When she refused, he punched and kicked her, revealing a homemade knife stowed in his sneaker. The attacker tore off her clothes, held her down on the bed, and raped her, and threatened to murder her if she told.

Farmer told.

Prison officials moved her out of the facility’s general population to await a hearing about her HIV-positive status. She was later moved to a medium-security prison where there would be “no continuing threat of physical injury,” according to the deputy solicitor general’s subsequent oral arguments before the high court.

“The rape kept repeating itself over and over again in my mind, and I knew that I had to try and do something,” Farmer remembers.

With no attorney representing her, she filed suit in federal court in 1991 against the officials who transferred her and those who failed to protect her, alleging that her Eighth Amendment rights had been violated and seeking compensation for mental anguish, as well as for “a swollen face, cuts and bruises to her mouth and lips and a cut to her back, as well as some bleeding,” according to her complaint.

All but one official denied any knowledge of the risk of sexual assault Farmer faced at Terre Haute.

When the case was dismissed a year later, Farmer filed an appeal, which was denied. After she petitioned the Supreme Court, lawyers from the American Civil Liberties Union’s National Prison Project stepped in to help.


“I never really expected it to be granted,” Farmer says now. “I was mostly going through the motions.”

ACLU attorney Elizabeth Alexander made the decision to refer to Farmer as “she” when she argued the case in 1994.

“At that time, the understanding of gay and bisexual and transgender was just so limited compared to where we are now,” notes Farmer.

But the attorney’s semantic choice was more strategic than sensitive. Using the feminine pronoun permitted Alexander to emphasize that prison officials never would have placed a woman among a violent male population.

“Once she was left in that cell, it’s not at all surprising that the assault happened,” Alexander says today. “Treating prison rape as a joke was far more ingrained in the culture then.”

On the other side, the attorneys for the United States used “he.”

In delivering the court’s unanimous opinion, then Justice David H. Souter performed grammatical gymnastics and avoided using either pronoun in referring to Farmer. (Souter declined to comment for this story.) The moderate-turned-liberal Justice Harry Blackmun, in his concurring opinion, employed the masculine pronoun.

Alexander says the decision marked only the second time the nation’s highest court addressed the issue of prison rape.

Writing at a time when the escalating incidence of HIV and AIDS in prisons raised the gallows for victims of sexual assault, Souter asserted that “having stripped [inmates] of virtually every means of self-protection and foreclosed their access to outside aid, the government and its officials are not free to let the state of nature take its course.” Souter, whom George H.W. Bush had appointed four years prior, went on to condemn the specter of “gratuitously allowing the beating or rape of one prisoner by another.”

Farmer built on two previous Supreme Court decisions, Estelle v. Gamble and Wilson v. Seiter (the latter of which Alexander also argued). Besides reaffirming the rights of the incarcerated, the 1994 ruling’s main impact was to address how prison officials can be liable for harm suffered under their watch, and, more specifically, the concept of “deliberate indifference.”

As an attorney who advocates for prisoners’ rights, Alexander says, she has mixed feelings about Farmer‘s intentionally narrow scope. “It’s a really tough standard,” she says. Though the court’s findings may have encouraged corrections officials to “hear no evil” in order to avoid liability, “It’s a case in which prisoners can sometimes win.”

Within three months of the decision, Farmer had been cited in about three dozen cases nationwide. To this day, the ruling serves as a user’s manual for jailhouse lawyers to argue constitutional violations behind bars, defining complex legal terms like “subjective recklessness” and mapping out what it takes to prevail. In addition, Farmer helped spawn Congress’s Prison Rape Elimination Act of 2003.

The Bureau of Justice Statistics reported in 2012 that nearly 10 percent of former inmates in prisons, jails, and other adult correctional facilities had been sexually abused. Another BJS survey released this month shows allegations of sexual victimization in prisons, jails, and other adult correctional facilities have increased every year between 2005 and 2011.

“There is no aspect of our criminal justice system that says part of your sentence is to be sexually abused, and Farmer was the first place where that was said with authority,” says Chris Daley, deputy executive director for Just Detention International, a human-rights organization that seeks to end sexual abuse in all forms of incarceration.

Farmer’s ordeal also served as a cautionary tale of sorts: In the two decades since the ruling, a handful of jurisdictions have begun using women’s facilities to house transgender inmates who identify as female.

Yet the majority of correctional facilities follow no such practice, placing prisoners according to their biological sex. Farmer herself was always incarcerated with men.

“She’s a character,” says Wisconsin attorney Michael Gonring, who represented Farmer after her case was remanded and denied again by the lower court. “A classic.”

Though Farmer has racked up more than a dozen convictions related to fraud, theft, and sundry other dishonest acts, the career criminal likely could have been a career lawyer.

For decades, Farmer has operated a de facto legal practice behind bars. When Gonring met her in the mid-1990s, she had 13 lawsuits going simultaneously. A recent search of her name as a party in a federal court database yielded 122 results, including 88 civil cases and 27 appeals. She also kept state courts busy. A former clerk for the Maryland Attorney General’s Office remembers crates upon crates of files devoted to her.

Most often, the crux of Farmer’s complaints concerns her own physical well-being. She fought the Federal Bureau of Prisons over hormone therapy, eventually losing on the grounds that the treatments exacerbated her AIDS, which had developed from her HIV.


“The vast majority of transgender people who are incarcerated are either completely locked out of transition-related care or have to fight for even the most basic care,” observes Daley. “The fact that Dee stood up for herself and said that this is a basic medical right — she was one of a handful of people across the country who were fighting this.”

One federal appeals court decision from 1993 casts Farmer as a seasoned veteran of the legal process: “Besides being an experienced litigator, Farmer has a history of fraud, arguing the possession of an intelligence superior to that of a criminal who relies on brawn rather than brains. The transcript of the trial discloses a shrewd cross-examination by Farmer of one of the defendants on the issue of forgery, bringing out all the contradictions and implausibilities in that defendant’s testimony,” reads the decision, authored by famed judge and legal theorist Richard Posner. Farmer lost her appeal.

She once won a claim under the Americans with Disabilities Act, arguing that as a blind person she was denied equal access to the prison law library. In another discrimination case, Farmer brought a class-action suit against then U.S. Attorney General Janet Reno and the director of the Federal Bureau of Prisons for (among other things) failing to offer African-American hair- and skincare products “while similar products designed for use by other races are available.”

Farmer lost that one; the court determined that she had failed to show Reno or the director was aware of the allegedly unconstitutional conditions. And she lost an equal-protection lawsuit that she filed after being forbidden to work in food service owing to her HIV-positive status.

In fact, she also wound up losing the suit that led to her landmark Supreme Court case.

The ruling in Farmer v. Brennan only remanded the case for retrial.

That’s where Gonring came in.

“I felt sorry for her being in the position she was, being female in an environment where she didn’t want to be,” he says now. “I was still reserved,” the attorney adds, “because she made a living fooling people.”

Gonring was surprised to find his client warm and engaging. As they prepared to make their case to the jury, he and a colleague did their best to accommodate Farmer, asking the Dane County, Wisconsin, Sheriff’s Office to allow her to have makeup brought to her in jail.

The response, as Gonring remembers it: “The only foundation in this building is in the walls.”

The jury found for the defendants.

“The bottom line was the jury never believed she was raped,” Gonring says.

After the trial, Gonring and Farmer parted ways, returning to their respective caseloads. Months later, though, his office began receiving bills for copying services involving his former client’s other cases.

He didn’t pay them.

“I was amused by it more than anything else,” Gonring says.

A year later, Farmer sent him a Valentine’s Day card. When he opened it, thousands of tiny metallic hearts tumbled forth, dousing his desk in red sparkles.

Gonring says he still finds a shiny remnant from time to time and smiles.

A few years back, Elizabeth Alexander heard Dee Farmer had died.

She admits she hadn’t kept up with her over the years. In fact, she has never met Farmer.

“I really didn’t focus on her as a person,” Alexander explains. “I was really focused on trying to figure out a way to pull this out for all prisoners.”

It turned out the news about Farmer’s passing was a red herring floated by Farmer herself.

Not that she wasn’t seriously ill. She has a history of psychosis, bipolar disorder, hearing voices (including the Devil’s, according to her lawyer in a federal court transcript). She has suffered from hepatitis, anxiety, and depression (the latter two of which worsened, she once argued in a civil-rights complaint, when officials transferred her to a so-called supermax facility; prosecutors noted Farmer was transferred because officials suspected she had participated in an identity-theft scheme to obtain credit in the names of the wardens).

AIDS had taken such a toll on her body that in 2005 a judge freed her from prison, sending her home to, as he put it, “meet his maker.”

“She was having extreme difficulty seeing and looked to be very frail and in ill health,” says Nicholas Szokoly, who represented Farmer during her release.

Farmer went home and participated in a clinical trial for AIDS patients at Johns Hopkins Hospital.

She had gained back some weight by the time authorities in an unmarked car pulled up to her elderly mother’s row house in northeast Baltimore in 2006. They hauled her away in handcuffs, her face angled down at the pavement. She pleaded guilty to obstruction of justice and misuse of a death certificate.


Less than two weeks into her 18-month sentence, Farmer wrote a letter to a federal court in Maryland complaining that correctional medical services had failed to give her AIDS medication. She later stated in a response to the court that the “medication that the [Johns Hopkins] doctor prescribed I receive some of it some of the time and none of it the rest of the time. It is difficult to tell.”

Seven years later, a member of Farmer’s current legal team says her face shows signs of stubble and dreariness. She’s tall, topping six feet, and wears her hair in tight braids. Her voice is high-pitched but not decidedly womanly. She considers herself asexual.

Farmer, who has taken up Bible study and listens to gospel music, likens her situation to that of the Old Testament’s beleaguered Job.

She says she is on a reprieve from death.

“He gave me the time to right some wrongs and to, by His Grace, impact the lives of others,” Farmer writes in an email — one that, like all of her correspondence with the Voice, originates from the Metropolitan Correctional Center in Brooklyn. (Corrections officials denied the Voice‘s request to visit Farmer at the facility.)

Some things, however, haven’t changed.

Earlier this month she was sentenced for a crime she committed while behind bars.

In January 2012, security officers had confronted Farmer, free at the time, and her brother as they were attempting to purchase about $10,000 worth of handbags from a Nordstrom in Paramus, New Jersey, using other people’s charge accounts, prosecutors allege. While she was detained in Brooklyn pending a trial, federal prosecutors uncovered email evidence that she had forged a judge’s signature on a fake subpoena seeking credit reports for 37 people.

The emails indicated she’d done it as a favor for a friend.

Before her sentence was handed down this week, Louis Fasulo, the New York–based attorney who heads up Farmer’s legal team, told the Voice, “No matter what sentence Dee receives, he has already received a life sentence in a way. Even though the price Dee paid has mentally and physically scarred him in a way he might never escape, his perseverance and bravery has improved conditions for thousands. In a way, the anniversary of this case is more of a day of mourning and remembrance than celebration.”


Arguendo Is Full of Supremely Naughty Charm

Who knew Supreme Court justices have such complicated, libidinous inner lives? Anthony Kennedy muses on adults-only car washes. Sandra Day O’Connor contemplates pornographic videos. Antonin Scalia obsesses over nude opera. These racy reveries appear in Arguendo, a verbatim theater piece from Elevator Repair Service at the Public Theater.

As in the celebrated Gatz, a seven-hour epic that included every word of The Great Gatsby, the troupe again stages a text in its entirety: the oral arguments of a 1991 First Amendment case centered on a statute requiring exotic dancers to wear G-strings. The court had to decide whether such dance constitutes expressive speech or merely lewdness for profit.

This is a cheeky subject for any theater company working to reconcile art and ticket sales. The arguments presented by the five-member cast are funny, weird, and deeply dull, so director John Collins gooses the action with swivel-chair dance routines and an eye-searing striptease, while designer Ben Rubin’s projections take a dizzyingly kinetic approach to precedent. If this piece lacks the sneaky pathos of ERS’s best work, it has a naughty charm, happy to reduce the highest court in the land to a series of dirty jokes.


ERS’s John Collins Explores a Sexy Supreme Court Case

One thing you could say about John Collins: He likes an oral challenge.

Under his direction, the New York–based ensemble Elevator Repair Service (ERS) has staged, among other things, three modern American novels—usually recited in their entirety. First came Gatz in 2006, a seven-hour marathon incorporating an enactment and complete reading of F. Scott Fitzgerald’s The Great Gatsby. The group followed that up in 2008 with The Sound and the Fury (April Seventh, 1928) from William Faulkner’s opus, and The Select (The Sun Also Rises), a full 2010 rendering of Hemingway’s classic.

Now they’re taking on the U.S. Supreme Court.

For Arguendo, the ensemble’s newest verbatim performance, opening September 10 at the Public Theater, the group will stage the complete oral arguments presented in the 1991 case Barnes v. Glen Theatre. In case you’ve forgotten, that’s the one in which the highest court in the land debated whether or not erotic dancing might be protected by the First Amendment. The dialogue between the justices and the opposing attorneys made for unusually lively jurisprudence: Imagine Antonin Scalia, Anthony Kennedy, and Sandra Day O’Connor discussing whether the Kitty Kat Lounge in South Bend, Indiana, should or should not require its dancers to wear pasties and g-strings.

Over burgers and bourbons around the corner from the company’s East Village studio, Collins recalled chancing upon the case while researching copyright law during the group’s long struggle to secure permission from the Fitzgerald estate to perform Gatz in New York. (For years, the show had toured the U.S. and Europe, becoming the group’s signature piece while Collins tried to get clearance for a hometown run; the estate eventually relented, but by that time, the rest of the world had seen it before New York.)

“I got excited because I discovered that, with a lot of cases, you could listen to the oral argument,” says Collins, who scrapped an intended law career after college. “You could go online, download it, and actually follow it. So I got kind of hooked on oral argument—which is much less interesting, I guess, than if I had gotten hooked on naked dancing.”

Don’t expect standard-issue courtroom drama. “It’s just not meant for the stage,” Collins says of Arguendo‘s legal-eagle source material. “It comes from another universe. It gives us all kinds of problems that we have to solve in staging it—and that’s good.”

It helped that the transcript was loaded with one-liners that kept Washington, D.C., observers laughing out loud during the original session. Plus, the case was basically about performance, and offered a glimpse of historic government deliberations over art during the 1980s and ’90s NEA/Mapplethorpe culture wars. (If nude dancing were intended as “expression,” it would be, essentially, a protected form of speech; but if baring it all were merely “behavior,” then it could be subject to decency restrictions.)

“How low can the ‘low’ art go before it loses the protections that we automatically assume the ‘high’ art has?” muses the director, who connects that question to the ensemble’s own ethos. “We’ve always been interested in what the edges of the performance are. When does it stop being a performance and start being something that’s just happening?” Barnes v. Glen seemed to parallel the downtowners’ aesthetic investigations, but from a legal standpoint.

In the end, the Supreme Court effectively upheld the state of Indiana’s right to pass a law banning public nudity: The dancers had to cover up. But Collins sees little consensus on why in the ruling—and the court’s loopy thought process, brimming with far-out hypotheticals, attracts him. “To try to get at a sensible, straightforward answer to some of these questions, they take it to some absurd places,” he says of the judges. (At various points they wonder if dancing has to be rhythmic and whether nudity is inherently expressive conduct.)

Arguendo‘s title is a legal term from Latin, meaning “for the sake of argument,” and for Collins, that’s the heart of the matter. He sees no easy answers to any of the questions as posed. He hopes to steer the show “into that strange marginal world between fact and fiction, between something that’s more documentary and something that’s made up—and really tests the question of what is truth.” (ERS has scheduled a special series of post-show discussions with legal experts so the audience can keep talking about the case, rather than just asking questions about how the show got made.)

A few of the group’s tactics could be seen at a recent afternoon rehearsal. Some of the proceeding’s technical portions happen simultaneously with other scenes. Collins frames the hearing with a C-SPAN broadcast interview outside the courthouse with a nude dancer from Michigan. Cascades of text project onto an upstage screen, zooming in and out of documents as attorneys cite them. And, of course, there is some undressing. And maybe provocative dancing. Nude.

Above all, the ERS performers seem to relish freewheeling with an ostensibly serious debate; the show is full of antics inspired by their research visit to the Supreme Court this year. As Collins points out, the transcript just covers what was said; it’s up to the group to imagine the rest.

The Court has changed since 1991, the same year the ensemble was founded. So has ERS. Collaborators have come and gone, and thanks to their success with Gatz, the shows—larger, fuller, more polished—now tour throughout a network of presenting partners.

Still, Collins says he’s trying to keep things fresh and resist pressures to manufacture another hit. The company’s been collaborating with a living playwright, Sibyl Kempson, who has created a text for them to stage this year at the Walker Art Center in Minneapolis. The director also toys with the thought of a future piece based on Congressional debates over the 14th Amendment (“it doesn’t have the nice, concise quality of a one-hour oral argument”). And he wonders if ERS could do something with Shakespeare or Chekhov, those titans of world theater repertory.

But mainly, regardless of the author or source, Collins wants audiences always to wonder: “‘Is this a pre-imagined performance, something that was already written down and planned, or is this something that is just happening right now?’ Which,” he adds, “is the province of theater.”


Constant Deportations Lead to Days of Rage

Today in America, one in four Latino voters knows someone in deportation proceedings.

The justices of the U.S. Supreme Court don’t care.

What else can be concluded from their questions and comments during oral arguments over Senate Bill 1070, Arizona’s notorious stab at ethnic cleansing?

And Latinos shouldn’t expect any succor from our deporter-in-chief, President Barack Obama.

Recently, Obama told a Univision reporter that he hoped to tackle comprehensive immigration reform in the first year of his second term.

Obama made the exact promise in 2008 for the first year of his first term. It didn’t happen.

Instead, four years of Obama has meant 1.5 million individuals deported, more than were sent home by his Republican predecessor in eight years.

In other words, it is time for a ride in the souped-up DeLorean back to the 1950s. Instead of blacks relegated to second-class status, it will be browns.

If the Supreme Court rules as many predict and upholds 1070, anyone who even resembles a Latino in states adopting similar statutes better get used to the third degree.

The president has the power to halt all deportations by executive fiat. A recent letter to Obama signed by 90 immigration-law professors detailed how he could legally do this on behalf of students who would benefit from proposed DREAM Act legislation.

But our prevaricating POTUS will not issue any such executive order. He doesn’t need to politically.

Meanwhile, the president’s rival, Mitt Romney, has signed off on “self-deportation,” the equivalent to 1070’s stated intent of “attrition through enforcement.”

Generous with the lip service Obama may be, but he doesn’t have to care. With Romney as the alternative, Latinos have no choice but to vote for him.

Indeed, Obama’s immigration polices look like a fulfillment of Operation Endgame, a notorious (and supposedly defunct) plan hatched post-9/11 by ICE’s Office of Detention and Removal, setting as its “golden measure of success” the removal of “all removable aliens” by 2012.

We’re off by a few years, but the goal remains the same. Another term for Obama means four more years of massive deportations, and all the family disruption, human tragedy, and unjust incarceration that accompanies them.

So if the Supreme Court heads in the direction it seems to be heading later this month, the question for immigrants and their advocates and allies becomes how do we make the political establishment care?

The answer? By making it pay through disruption, rebellion, and resistance.

That combination of anger and action was building to a crescendo throughout 2010. But U.S. District Court Judge Susan R. Bolton’s injunction against the most offensive parts of 1070 on July 28 of that year hit the pause button.

On July 29, because groups inside and outside Arizona had mobilized and organized for the day 1070 was scheduled to go into effect, massive civil disobedience created public chaos.

Scores of people were arrested and jailed for taking over streets, disobeying police orders, and locking their arms together in PVC pipe, a move known as the “sleeping dragon.”

Leading up to that day had been numerous acts of protest and demonstration: marches, rallies, students chaining themselves to the Arizona Capitol building, as well as acts of defiance organized by smaller groups.

Perhaps the boldest action was taken by six activists who occupied the U.S. Border Patrol’s offices at Davis-Monthan Air Force Base in Tucson. In a sleeping dragon, with U-shaped bicycle locks joining their necks, the activists refused to move, leaving the Border Patrol helpless to respond.

For pro-immigrant activist Alex Soto, a member of the Tohono O’odham Nation and the hip-hop duo Shining Soul, the action was a means of striking back at an enemy that effectively occupies O’odham land, where Border Patrol vehicles are as common as cacti.

“They’re already escalating,” Soto says of the increased militarization of the U.S.-Mexico border. “I understand the necessity [of working for change by registering more Latino voters, for instance]. On the other hand, anger is not bad. . . .”

SB 1070 is just one way immigrants are criminalized, Soto says.

The Border Patrol he rails against operates in 100-mile swaths of what the American Civil Liberties Union refers to as “constitution-free zones,” extending out from the border.

Within these zones, it sets up checkpoints, operates unmanned drones, and patrols public transportation, all the time subjecting non-whites to heightened scrutiny.

Then there’s ICE, part of the U.S. Department of Homeland Security (as is the Border Patrol).

ICE administers the government’s Orwellian Secure Communities program, which operates in jails nationwide and is supposed to check the immigration statuses of all those booked.

But Latinos are run through at higher rates than non-Latinos. So far, 3,600 American citizens have been wrongly arrested through the program.

ICE has begun to phase out its 287(g) program, which cross-deputizes local law enforcement as federal immigration agents. None other than Sheriff Joe Arpaio once maintained the largest 287(g) force in the nation.


Ironically, it was with this force that Arpaio wreaked terror on Latino communities in Maricopa County through immigrant-hunting sweeps using racial-profiling tactics that, in turn, led to Arpaio’s 287(g) contract getting discontinued.

It led also to a lawsuit filed by the U.S. Department of Justice this year, aimed at the sheriff’s widespread discriminatory policing.

All this makes it obvious that increased civil disobedience is necessary to get the point across to the Obama administration.

“There needs to be a show of force,” Soto says. “Meaning we’re not going to let [the government] operate the way [it] wants to operate. Whatever that means, whatever that looks like.”

Isabel Garcia of the Tucson human rights organization Coalición de Derechos Humanos agrees that Latinos and their supporters must ramp up public protests.

“At some point . . . there will have to be a call for mass disobedience,” she notes.

Garcia fears that what she calls the “Tucson model” will become standard throughout the country.

Tucson is 60 miles north of the border, within the Border Patrol’s constitution-free zone of operations. When Tucson cops run across someone they believe is undocumented, they call the Border Patrol, and the suspected illegal immigrant is carted away in a truck that looks like a dog kennel.

“Here [in Tucson], you can be back across that border in an hour, and your family doesn’t know anything,” Garcia says. “It’s really brutal.”

If the Supreme Court rules as predicted, Arizona law enforcement will have an “absolute license” to practice racial profiling, she adds.

Pablo Alvarado, director of the Los Angeles–based National Day Laborer Organizing Network, says his immigrant-rights coalition will “push back, hard” if the Supreme Court upholds the “papers, please” portion of 1070.

That push back will take many forms: legally (Alvarado’s group already is a plaintiff in one of the lawsuits against 1070); by supporting anti-1070 legislation, such as California’s proposed TRUST Act; through political pressure to create new “sanctuary cities”; and by taking it to the streets.

“We will create a [moral] dilemma for everyone, friends or foes,” Alvarado promises of the coming wave of protest.

His organization plans a Freedom Ride–style bus tour through states with 1070-like laws. In the bus will be scores of undocumented families who will present themselves to local and federal authorities in different cities and dare law enforcement to arrest them.

Alvarado said the idea was inspired by students agitating for the DREAM Act nationwide. In Alabama, D.C., Florida, and Arizona, these activists, brought to this country when they were children, have declared themselves “undocumented and unafraid,” while participating in acts of civil disobedience.

One of the more daring examples of DREAM Act civil disobedience occurred in March, when 150 student protesters blocked a street in west Phoenix. Six undocumented students chose not to move from the center of the street and were arrested, thus risking deportation.

In a YouTube clip released to coincide with her arrest with the others, Daniela Cruz explained how she and fellow DREAMers were fed up with living in a limbo where they cannot legally work or go to college at an in-state tuition rate. America is the only home they’ve ever known, and they demonstrated that they are through being victims.

“I’m willing to risk everything I have,” Cruz told her audience. “I’m willing to risk being deported, because I’m done seeing people be scared.”

To the surprise of both her and her jailers, ICE holds on Cruz and her cohorts were mysteriously lifted during their 28-hour stay in Joe Arpaio’s Fourth Avenue Jail. They were released on misdemeanor charges.

Cruz and her pals quickly became heroes in the Latino community.

“One day, we’ll be reading about them in history books!” declares Arizona state senator Steve Gallardo, who is pushing for repeal of 1070.

Gallardo predicts increased public protests in the wake of the expected Supreme Court ruling. “I’ll be right there with them,” he says.

A demonstration by the Phoenix human rights group Puente scheduled for June 23 will target Arpaio’s infamous Tent City. Hundreds of Unitarian Universalists who will convene in Phoenix during that weekend for a national conference will participate in the protest.

The Unitarians and Puente teamed up in 2010 for a show of anti-1070 civil disobedience that rocked Phoenix.

Puente’s Carlos Garcia cites the example set by the DREAM Act kids as one to emulate.

“When undocumented people confront the system, it crumbles,” he says. “And it becomes clear that they are more afraid of us than we are of them.”

Given the status quo—a deadlocked Congress, an indifferent Supreme Court, and a president who’s playing politics at the expense of his Latino constituency—what’s needed this election year is the type of unrest this country hasn’t seen since the 1970s, something on par with the 2011 student protests in Chile, where thousands took over Santiago to protest the education system.


A refrain from the Shining Soul song “Papers” sums up the situation Latinos find themselves in—once again.

“Click-clack/Where your papers at?/We under attack/Fight back/It’s war.”

Stephen Lemons is a staff writer and columnist for Phoenix New Times.


New York AG Chimes In On Arizona’s Breathing While Brown Immigration Law

The constitutionality of Arizona’s controversial immigration law currently is being reviewed by the United States Supreme Court — and for some reason New York Attorney General Eric Schneiderman decided to chime in in the form of a friend-of-the-court brief filed with the SCOTUS this morning.

If you’re unfamiliar with SB 1070 — Arizona’s controversial law — it basically gives local law enforcement agencies in Arizona the authority to ask the immigration status of its citizens and enforce federal immigration laws. Unfortunately for Arizona, enforcing immigration laws is the responsibility of the federal government — not the states — and there in lies the problem.

“The Arizona law improperly displaces and supplants federal authority
over the removal of undocumented immigrants, a subject that the
Constitution leaves to Congress, and that Congress delegated to the
discretion and exclusive oversight of federal executive officials. This
measure obstructs and impedes federal efforts to establish national
priorities for the removal of undocumented immigrants,” Schneiderman

He goes on to say that “Overzealous and indiscriminate attempts to
identify and remove undocumented immigrants also pose many risks for
civil-rights violations–risks that spill over to legal residents.
Enforcement measures targeted at ‘removable’ immigrants–such as
documentation checks or other investigatory measures–therefore threaten
to sweep in many legal immigrants and U.S. citizens who simply share the
same race, ethnicity, or cultural markers as undocumented immigrants
common to a particular area.”

So, how is challenging an Arizona law any of the New York
attorney general’s business? Well, aside from it being a nice feather in
Schneiderman’s cap come election time in a “progressive” state like New
York, the AG claims that because New York has a large population of
both legal and illegal immigrants, it’s his job to make sure laws like
SB 1070 don’t spread to the Empire State (Arizona-esque laws already
have been proposed in several other — mostly “red” — states).

Schneiderman also claims that if states are allowed to come up with their own immigration policies, other states will be effected because the federal government will be bothered with the tasks of responding to “Arizona officers’ information requests and determin[ing] what to do with individuals detained by Arizona.” Schneiderman claims “this would divert federal resources from the priority areas set by Congress, including protecting the public from dangerous felons and terrorists, not only in Arizona but elsewhere.”

Those in favor of Arizona’s law argue that the federal government has
failed to enforce immigration laws — which has led to an invasion of illegal immigrants in Southwester states — and if the feds won’t do the job,
the state will.

Schneiderman’s entered New York into a coalition of 11 states —
which also includes California, Connecticut, Hawaii, Illinois, Iowa,
Maryland, Massachusetts, Oregon, Rhode Island, and Vermont — publicly
opposing Arizona’s law.

The Supreme Court is expected to make a ruling on Arizona’s law by the end of June.