By: Paul S. Marchand
Summary: Eric Holder “pwned” a petulant panel of Fifth Circuit judges with his lawyerly, professional, response to their outburst about the President’s comments on the Affordable Care Act, showing who was the adult in the discussion. Unfortunately, the panel’s conduct raises issues that may need to be investigated, or even made the subject of articles of impeachment.
On Monday, the President, addressing the issue of the Supreme Court’s review of the Affordable Care Act (“Obamacare,”) urged the Court to give deference to the fact that the legislation had been passed by majorities in both houses of Congress. Responding to a reporter’s questions, the President said "I'm confident that the Supreme Court will not take what would be an unprecedented, extraordinary step of overturning a law that was passed by a strong majority of a democratically elected Congress. And I'd just remind conservative commentators that for years what we've heard is, the biggest problem on the bench was judicial activism or a lack of judicial restraint."
As has been noted all over the mainstream media, on the Internet, and in the blogosphere, the President’s remarks apparently got under the skin of a three-judge panel of the Fifth Circuit Court of Appeals in New Orleans, hearing arguments in Physician Hospitals of America v. Sebelius.
Leading the charge, Circuit Judge Jerry Smith, ordered the government’s lawyer to submit, by noon Central Time yesterday, a letter of no less than three pages, single spaced, setting forth the Justice Department’s position on judicial review. The court’s order was not, mind you, based on any position the government had taken in the litigation, but on the basis of an extrajudicial statement, not made in the case pending before the court, that happened to have been made by President Obama.
Yesterday, Attorney General Eric Holder responded, timely, and in accordance with the directive from the bench, to the Court’s ridiculous order. The A.G.’s letter can be found on CNN at the following link http://i.cdn.turner.com/cnn/interactive/2012/04/us/doj.letter.pdf?hpt=hp_t2
The A.G.’s letter --written in a dry, professional, objective, legal tone-- contains an analysis that would be agreed to by all but the most hyper partisan right-wing legal scholars. It properly defends the president, as well as his administration, while carefully avoiding even the appearance of any form of (amply justifiable) irritation at having to waste taxpayer resources responding to a petulant and childish outburst more notable for its partisanship than for its judicial restraint.
In short, Atty. Gen. Holder’s letter resembles the patient, long-suffering response of a mature adult to an adolescent outburst. In the language (ironically enough) of adolescent computer gamers, the Fifth Circuit panel has been well and truly “pwned” by the Attorney General. Mr. Holder’s letter, though respectful to the nth degree, nevertheless demonstrates who is the professional and who are the partisans in this transaction.
Within the legal profession, both conservatives and liberals alike were taken aback by the Fifth Circuit panel’s action. Not only did the panel’s extraordinary order create an impression of inappropriate partisanship on the part of the three judges, especially given the Judge Smith’s use of the politically charged word “Obamacare,” and not only did it raise questions about the judicial temperament of the three jurists, but -- perhaps even more ominously -- it left both lawyers and laity alike wondering just whether there are any limits to the ability of the court to seek out and “punish” extrajudicial utterances that might in some way offend judicial amour propre.
A couple of points are worth considering.
First, the Constitution of the United States prohibits a federal appeals court from reviewing any matter “other than at common law.” This means, first, that a federal appeals court does not set to review factual determinations, but must confine itself to the facts that appear on the record of the trial court. Second, it should also mean that the federal appeals court does not sit to resolve legal issues that may be discussed outside of the context of the litigation before it.
In simple terms, that means the court should have no business ordering government lawyers to brief and justify the legal implications of remarks made by the President in the course of the President’s execution of his duties in that office.
Second, the power of any court to punish a contempt is strictly limited. So far, no one has argued -- at least not seriously -- that the President’s responses to reporters questions about the Supreme Court’s review of the Affordable Care Act came anywhere remotely close to constituting an actionable contempt. Nevertheless, without any apparent legal justification for doing so, the three-judge panel of the Fifth Circuit has apparently seen fit to engage in a new and highly dangerous form of judicial activism, that of inventing a new form of de facto “contempt.”
This is a concept which every American, whether lawyer or layperson, should consider extremely dangerous. Does this mean, for example, that if one of the three judges on the Fifth Circuit panel were to read this blog entry and take offense to it that I, or some lawyer arguing before the Fifth Circuit who might happen to agree with me, could be forced to perform some time wasting task similar to that inflicted upon the Justice Department?
Does the court have the right, if its amour propre has been offended, to engage in activity which has a real potential for chilling otherwise constitutionally protected speech?
Does a court have any legitimate authority, say, if a judge or judges do not like a remark uttered by the President or the Secretary of Defense, for example, concerning the prosecution of our operations in Afghanistan, to force a government lawyer to justify the President or SecDef’s remarks in a written document, and thus effectively impose judicial second-guessing on the conduct of a war?
We rely upon our courts to function as impartial “umpires,” as Chief Justice John Roberts so famously declared. It is, in the Roberts analogy, the function of a court to call balls and strikes. While it does not yet appear that that the entire federal judiciary has become politicized, it nevertheless does seem that the longstanding tradition of scrupulous nonpartisanship and impartiality may be disappearing from some of the most important tribunals of the federal judiciary.
From the Rehnquist Court’s politically motivated decision in Bush v. Gore, to the Roberts Court’s decision in Citizens United, to the apparent willingness of at least four justices to overturn the Affordable Care Act on the basis of Tea Party rhetoric, Americans have seen their Supreme Court appearing to be less interested in calling balls and strikes than in throwing the game in favor of a particular political party. Does it come as a surprise that significant majorities in polls taken on the issue believe that the Supreme Court will make his decision on the affordable Care Act on the basis of politics, not law?
Perhaps we should give the three-judge panel the benefit of some small degree of doubt; perhaps Judge Smith and his colleagues were simply being petulant. Perhaps one of them had had a poor po’boy the previous evening, or a bad beignet at breakfast, but even so, mere judicial agita should never be an excuse for judicial misconduct. But if their petulance was the kind of right wing rant it appears to have been, then such misconduct could certainly constitute potential grounds for investigation or even impeachment.
-xxx-
Paul S. Marchand is an attorney who lives and works in Cathedral City, CA, where he served two terms on the City Council. The views expressed herein are his own, and are not intended as, and should not be construed as, legal advice.
Friday, April 6, 2012
Thursday, April 5, 2012
LITTLE SNAPPERS: SANTORUM’S SWIPE AT CALIFORNIA, PRESIDENTIAL QUALIFICATIONS, Dr. KING, AND THE MISUSE OF THE APOSTROPHE.
By: Paul S. Marchand
Sometime Chief Justice Warren Burger used to write short concurrences or dissents to opinions of his Supreme Court colleagues. Though most of them were never filed, he wrote them to let off steam. He called them “little snappers.” Sometimes, we all need to let fly with a little snapper or two. These are a few of the things that have pressed my buttons of late.
SANTORUM’S SWIPE AT CALIFORNIA
Earlier this week, Rick “Google him” Santorum took a swipe at the University of California, and by extension at California, claiming --falsely, of course-- that he had heard somewhere that at one or more UC campuses American history was not taught.
While a number of bloggers have predicted -- and perhaps rightly -- that Santorum is actually seeking to launch a new war, this one on public higher education, my objection to the Google Man’s comments is founded on my irritation at having my state once again held up as a scapegoat for all the things the right wing considers wrong with America.
You don’t even have to be a Californian patriot to be very concerned that a man who wants to be President of all of the United States thinks it okay to attack any of the United States. If, which God in His infinite mercy prevent, Rick Santorum is ever elected President, will he try to read California out of the Union with bell, book, and candle?
We know that many in red state America apparently feel a deep, even visceral, dislike for California, and wish us ill. A President of the United States ought to be above such sentiments. Santorum again disqualifies himself by playing to sectional hatred.
PRESIDENTIAL QUALIFICATIONS
In a CNN op-ed piece published earlier this week entitled “Three New Rules for US Presidents, columnist LZ Granderson proposed, among other things, requiring “military experience” as a precondition for eligibility.
Three words come to mind: damn fool notion.
The idea that only persons with so-called military experience should be allowed to be President would have prevented some of our greatest Presidents from ever seeing the inside of the White House.
Granderson would do well to remember that Franklin Delano Roosevelt, who led this country through the dark days of the Depression and to the brink of victory in World War II, never served a day in the armed forces prior to becoming commander-in-chief. Granderson should also remember that neither John Adams, Thomas Jefferson, James Madison, nor James Monroe, ever served a day in uniform, yet all are counted among our better Presidents. Indeed, so ahistorical is Granderson’s view that he tends to forget that those Presidents who have come out a lengthy military experience, such as Grant or Eisenhower, have not been ranked among America’s greatest Presidents.
Moreover, for a self identified gay man to urge the policy Granderson urges is unacceptable. Given that we have only recently seen the end of the ban on open service by LGBT members of the Armed Forces, does Granderson seriously believe that we should build a barrier to the possibility of a highly qualified GLBT candidate going to the White House simply because he or she was deterred from military service by either 123 Words or DADT?
Sometimes Granderson gets it right, but on this one, he got it grossly, egregiously wrong, and in so doing managed to insult the queer nation of which he is a member. He owes us an apology.
Dr. KING, 44 YEARS ON
Yesterday was the 44th anniversary of the assassination of Dr. Martin Luther King, Jr.. His shooting was one of the earliest events of which I have a clear memory. Since then, we seem to have made a few strides in the direction of that goal he so famously articulated, of judging one another not on the color of our skin but on the content of our character.
Yet for every step forward, there seems to be a step sideways, or worse, a step back. As I had feared, the conversation about the shooting of Trayvon Martin has begun to split along predictable red/blue, left/right lines, racially-charged. Worse, the process of demonizing a dead 17-year-old boy with nothing worse on his record than having possibly smoked a joint at some point in his life, has become a full throated right-wing juggernaut.
As this process unfolds, we must begin to entertain the possibility that there may have been widespread, systematic obstruction of justice within the very institutions that exist to enforce the law. Without relitigating the matter further, one must still ask why, after an admitted killing, no proper independent investigation was undertaken immediately after the shooting, why there seems to have been improper ex parte communication between law enforcement and prosecutors, and whether there has been some inappropriate communication between George Zimmerman’s father (a retired judge) and either police or prosecutors. Something does not pass the smell test here.
Sadly, it seems that in Sanford, Florida, judgments were reached on the basis of skin color, and not the content of character. Dr. King’s hope for a better future remains unrealized.
THOSE DAMNED APOSTROPHE’S
If you saw the apostrophe in the catchline above, and knew it was wrong, kudos to you. Let’s review something we should all have learned in basic English grammar: an apostrophe is a punctuation mark, used to indicate a contraction, the omission of a letter from a word (as in punk’d), or possession. The only time an apostrophe should ever be used to indicate plural when numerals or single, individual letters are being pluralized (as in 1950's or Q’s, for example). Even then, better style is not to use the apostrophe when numbers are being pluralized.
Unfortunately, we often see the apostrophe being used to designate plural when a simple “s” will do the job: boats, not boat’s, unless of course one is speaking of something belonging to a particular boat, as in “the sailor stood at the boat’s helm,” not “the sailor saw many boat’s in the harbor.” Yet far too often, we see the pluralizing apostrophe being used by those who ought to know better, or been taught better.
In fine, the use of the apostrophe to designate plural immediately undermines the credibility of whatever point a writer is trying to make by calling attention to that writer’s weak command of grammar and punctuation.
With that, I’ll get off the soapbox, and if there are typos (not typo’s) herein, I’ll fix my own humble pie, thank you.
Sometime Chief Justice Warren Burger used to write short concurrences or dissents to opinions of his Supreme Court colleagues. Though most of them were never filed, he wrote them to let off steam. He called them “little snappers.” Sometimes, we all need to let fly with a little snapper or two. These are a few of the things that have pressed my buttons of late.
SANTORUM’S SWIPE AT CALIFORNIA
Earlier this week, Rick “Google him” Santorum took a swipe at the University of California, and by extension at California, claiming --falsely, of course-- that he had heard somewhere that at one or more UC campuses American history was not taught.
While a number of bloggers have predicted -- and perhaps rightly -- that Santorum is actually seeking to launch a new war, this one on public higher education, my objection to the Google Man’s comments is founded on my irritation at having my state once again held up as a scapegoat for all the things the right wing considers wrong with America.
You don’t even have to be a Californian patriot to be very concerned that a man who wants to be President of all of the United States thinks it okay to attack any of the United States. If, which God in His infinite mercy prevent, Rick Santorum is ever elected President, will he try to read California out of the Union with bell, book, and candle?
We know that many in red state America apparently feel a deep, even visceral, dislike for California, and wish us ill. A President of the United States ought to be above such sentiments. Santorum again disqualifies himself by playing to sectional hatred.
PRESIDENTIAL QUALIFICATIONS
In a CNN op-ed piece published earlier this week entitled “Three New Rules for US Presidents, columnist LZ Granderson proposed, among other things, requiring “military experience” as a precondition for eligibility.
Three words come to mind: damn fool notion.
The idea that only persons with so-called military experience should be allowed to be President would have prevented some of our greatest Presidents from ever seeing the inside of the White House.
Granderson would do well to remember that Franklin Delano Roosevelt, who led this country through the dark days of the Depression and to the brink of victory in World War II, never served a day in the armed forces prior to becoming commander-in-chief. Granderson should also remember that neither John Adams, Thomas Jefferson, James Madison, nor James Monroe, ever served a day in uniform, yet all are counted among our better Presidents. Indeed, so ahistorical is Granderson’s view that he tends to forget that those Presidents who have come out a lengthy military experience, such as Grant or Eisenhower, have not been ranked among America’s greatest Presidents.
Moreover, for a self identified gay man to urge the policy Granderson urges is unacceptable. Given that we have only recently seen the end of the ban on open service by LGBT members of the Armed Forces, does Granderson seriously believe that we should build a barrier to the possibility of a highly qualified GLBT candidate going to the White House simply because he or she was deterred from military service by either 123 Words or DADT?
Sometimes Granderson gets it right, but on this one, he got it grossly, egregiously wrong, and in so doing managed to insult the queer nation of which he is a member. He owes us an apology.
Dr. KING, 44 YEARS ON
Yesterday was the 44th anniversary of the assassination of Dr. Martin Luther King, Jr.. His shooting was one of the earliest events of which I have a clear memory. Since then, we seem to have made a few strides in the direction of that goal he so famously articulated, of judging one another not on the color of our skin but on the content of our character.
Yet for every step forward, there seems to be a step sideways, or worse, a step back. As I had feared, the conversation about the shooting of Trayvon Martin has begun to split along predictable red/blue, left/right lines, racially-charged. Worse, the process of demonizing a dead 17-year-old boy with nothing worse on his record than having possibly smoked a joint at some point in his life, has become a full throated right-wing juggernaut.
As this process unfolds, we must begin to entertain the possibility that there may have been widespread, systematic obstruction of justice within the very institutions that exist to enforce the law. Without relitigating the matter further, one must still ask why, after an admitted killing, no proper independent investigation was undertaken immediately after the shooting, why there seems to have been improper ex parte communication between law enforcement and prosecutors, and whether there has been some inappropriate communication between George Zimmerman’s father (a retired judge) and either police or prosecutors. Something does not pass the smell test here.
Sadly, it seems that in Sanford, Florida, judgments were reached on the basis of skin color, and not the content of character. Dr. King’s hope for a better future remains unrealized.
THOSE DAMNED APOSTROPHE’S
If you saw the apostrophe in the catchline above, and knew it was wrong, kudos to you. Let’s review something we should all have learned in basic English grammar: an apostrophe is a punctuation mark, used to indicate a contraction, the omission of a letter from a word (as in punk’d), or possession. The only time an apostrophe should ever be used to indicate plural when numerals or single, individual letters are being pluralized (as in 1950's or Q’s, for example). Even then, better style is not to use the apostrophe when numbers are being pluralized.
Unfortunately, we often see the apostrophe being used to designate plural when a simple “s” will do the job: boats, not boat’s, unless of course one is speaking of something belonging to a particular boat, as in “the sailor stood at the boat’s helm,” not “the sailor saw many boat’s in the harbor.” Yet far too often, we see the pluralizing apostrophe being used by those who ought to know better, or been taught better.
In fine, the use of the apostrophe to designate plural immediately undermines the credibility of whatever point a writer is trying to make by calling attention to that writer’s weak command of grammar and punctuation.
With that, I’ll get off the soapbox, and if there are typos (not typo’s) herein, I’ll fix my own humble pie, thank you.
-xxx-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California. He has pet peeves (not peeve's), and while the views expressed herein are his own, and not those of any other person or entity, if you have the same pet peeves, good for you. The views expressed herein are not intended as, and should not be construed as legal advice.
Friday, March 30, 2012
ON COMMEMORATING CESAR CHAVEZ
By: Paul S. Marchand
SUMMARY: On the day on which we commemorate the life and achievements of Cesar Chavez, we remember that the struggle for social justice continues, whether for the workers who sustain our economy, or for Trayvon Martin.
----------------------------------------------------------------------------------------------
In recent days, as American society seems to be dividing into two antagonistic camps --- each largely talking past, not with, the other --- over the circumstances surrounding the killing of Trayvon Martin, a day set aside to commemorate the life and achievements of Cesar Chavez seems an appropriate time for reflection on the extent to which we are living up to our best ideals and being guided by what Abraham Lincoln so famously called the better angels of our nature.
Some years ago, I attended a dinner party composed largely of damn dangerous liberals with a propensity for free ranging conversation. After the dishes had been cleared, our table talk covered a wide variety of subjects, including the so-called Protestant Work Ethic.
One of our group, who had spent time in the Benedictine Order, suggested that what we called the Protestant Work Ethic might actually be better called the Benedictine Work Ethic, as it had been St. Benedict, in his Little Rule for Beginners, formulated 1500 years ago, who had first articulated the dignity of work and workers, reminding his congregation that to work is to pray, and that work itself is a form of prayer.
Since then, we have largely delinked the idea of work from the action of prayer. Ineluctably, work has come to be seen not as part of a divine economy, but as a mathematical term in the calculus of capitalism. Unfortunately, somewhere along the way in that evolutionary process, the idea of work and workers as possessing an inherent dignity that should be honored and respected, wound up being tossed overboard.
In the last two centuries, since the coming of the Industrial Revolution, we have been engaged in an ongoing struggle to reclaim and reaffirm the dignity of work and workers. If for highly skilled industrial workers that struggle was a difficult one, it was more so by orders of magnitude for the relatively unskilled migrant agricultural workers for whose dignity both Cesar Chavez and Dolores Huerta fought so long and so tirelessly.
Unfortunately, we still have yet to liberate ourselves from the proposition that the rights of the working poor, the middle class, and those who are in some way Other, are necessarily lesser things than the rights of those who possess power, wealth, or both. We still have much work to do when someone like George Zimmerman can kill a 17-year-old like Trayvon Martin with apparent impunity, and be thought in some circles a hero for doing so.
While it may be a cliché, it is nonetheless true that the most authentic measure of any society is to be found in how it treats those who lack significant or even measurable power. The true test of our ideals is not how well we take care of the healthy, the wealthy, or the well-connected, but how well we take care of the single mother trying to raise children, or the middle-class family struggling to keep from sliding into poverty, or the middle-aged worker who can’t afford health insurance, or even the 17-year-old African-American kid whose sole offense seems to have been that of being black in a gated community.
Cesar Chavez irritated a lot of people because he dared to speak truths that defenders of dominant dispensations would have preferred remain unspoken. It never ceases to amaze me how many Anglo Californians of a certain age bracket insist passionately to me that life for California’s Latinos and working poor was so much better before Cesar Chavez began to make trouble. Life may have been better for the fortunate few, but it certainly wasn’t better for those who labored under often horrible conditions to put food on our tables.
Cesar Chavez irritated a lot of people because he dared to insist on justice for those upon whose backbreaking labor the prosperity of California depends in such large measure. Those who have been calling for justice for Trayvon Martin have certainly irritated those who would be more comfortable living under a dispensation in which Rosa Parks would have stayed the back of the bus, and Trayvon Martin would never have been allowed inside a gated community.
But if we are truly the nation Abraham Lincoln described at Gettysburg as having been “conceived in liberty and dedicated to the proposition that all men are created equal,” then our American Revolution is incomplete as long as we ignore the basic humanity of those who feed us, or those who may not look like us, love like us, work like us, worship like us, vote like us, or see the world like us.
As we remember Cesar Chavez today, I don’t think it’s much of a reach to believe that were he still with us, he, too, would be calling for justice for Trayvon Martin. Still, the work of justice continues. SÃ, se puede.
-XXX-
Paul S. Marchand is an attorney in Cathedral City, California, where he lives and works. The views expressed herein are his own, and not necessarily those of any agency or organization with which he is associated. They are not intended to constitute legal invites, and should not be so construed.
SUMMARY: On the day on which we commemorate the life and achievements of Cesar Chavez, we remember that the struggle for social justice continues, whether for the workers who sustain our economy, or for Trayvon Martin.
----------------------------------------------------------------------------------------------
In recent days, as American society seems to be dividing into two antagonistic camps --- each largely talking past, not with, the other --- over the circumstances surrounding the killing of Trayvon Martin, a day set aside to commemorate the life and achievements of Cesar Chavez seems an appropriate time for reflection on the extent to which we are living up to our best ideals and being guided by what Abraham Lincoln so famously called the better angels of our nature.
Some years ago, I attended a dinner party composed largely of damn dangerous liberals with a propensity for free ranging conversation. After the dishes had been cleared, our table talk covered a wide variety of subjects, including the so-called Protestant Work Ethic.
One of our group, who had spent time in the Benedictine Order, suggested that what we called the Protestant Work Ethic might actually be better called the Benedictine Work Ethic, as it had been St. Benedict, in his Little Rule for Beginners, formulated 1500 years ago, who had first articulated the dignity of work and workers, reminding his congregation that to work is to pray, and that work itself is a form of prayer.
Since then, we have largely delinked the idea of work from the action of prayer. Ineluctably, work has come to be seen not as part of a divine economy, but as a mathematical term in the calculus of capitalism. Unfortunately, somewhere along the way in that evolutionary process, the idea of work and workers as possessing an inherent dignity that should be honored and respected, wound up being tossed overboard.
In the last two centuries, since the coming of the Industrial Revolution, we have been engaged in an ongoing struggle to reclaim and reaffirm the dignity of work and workers. If for highly skilled industrial workers that struggle was a difficult one, it was more so by orders of magnitude for the relatively unskilled migrant agricultural workers for whose dignity both Cesar Chavez and Dolores Huerta fought so long and so tirelessly.
Unfortunately, we still have yet to liberate ourselves from the proposition that the rights of the working poor, the middle class, and those who are in some way Other, are necessarily lesser things than the rights of those who possess power, wealth, or both. We still have much work to do when someone like George Zimmerman can kill a 17-year-old like Trayvon Martin with apparent impunity, and be thought in some circles a hero for doing so.
While it may be a cliché, it is nonetheless true that the most authentic measure of any society is to be found in how it treats those who lack significant or even measurable power. The true test of our ideals is not how well we take care of the healthy, the wealthy, or the well-connected, but how well we take care of the single mother trying to raise children, or the middle-class family struggling to keep from sliding into poverty, or the middle-aged worker who can’t afford health insurance, or even the 17-year-old African-American kid whose sole offense seems to have been that of being black in a gated community.
Cesar Chavez irritated a lot of people because he dared to speak truths that defenders of dominant dispensations would have preferred remain unspoken. It never ceases to amaze me how many Anglo Californians of a certain age bracket insist passionately to me that life for California’s Latinos and working poor was so much better before Cesar Chavez began to make trouble. Life may have been better for the fortunate few, but it certainly wasn’t better for those who labored under often horrible conditions to put food on our tables.
Cesar Chavez irritated a lot of people because he dared to insist on justice for those upon whose backbreaking labor the prosperity of California depends in such large measure. Those who have been calling for justice for Trayvon Martin have certainly irritated those who would be more comfortable living under a dispensation in which Rosa Parks would have stayed the back of the bus, and Trayvon Martin would never have been allowed inside a gated community.
But if we are truly the nation Abraham Lincoln described at Gettysburg as having been “conceived in liberty and dedicated to the proposition that all men are created equal,” then our American Revolution is incomplete as long as we ignore the basic humanity of those who feed us, or those who may not look like us, love like us, work like us, worship like us, vote like us, or see the world like us.
As we remember Cesar Chavez today, I don’t think it’s much of a reach to believe that were he still with us, he, too, would be calling for justice for Trayvon Martin. Still, the work of justice continues. SÃ, se puede.
-XXX-
Paul S. Marchand is an attorney in Cathedral City, California, where he lives and works. The views expressed herein are his own, and not necessarily those of any agency or organization with which he is associated. They are not intended to constitute legal invites, and should not be so construed.
Wednesday, March 28, 2012
TRASHING MATTHEW SHEPARD AND TRAYVON MARTIN: the Creation of a Threat Narrative
By: Paul S. Marchand
SUMMARY: The organized effort of the Sanford, FL, PD, defenders of George Zimmerman, and the right-wing noise machine to trash the memory of Trayvon Martin resembles similar efforts to besmirch the memory of Matthew Shepard. In an increasingly diverse society such as ours, such practices should frighten all of us worse than bombs.
SUMMARY: The organized effort of the Sanford, FL, PD, defenders of George Zimmerman, and the right-wing noise machine to trash the memory of Trayvon Martin resembles similar efforts to besmirch the memory of Matthew Shepard. In an increasingly diverse society such as ours, such practices should frighten all of us worse than bombs.
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If you have no case, abuse the other side. If you represent an unattractive defendant, blame the victim. Any lawyer can tell you that these are two critical tricks of the trade in our profession.
So, it is hardly surprising that as public outrage over the so-called self-defense killing of Trayvon Martin continues to grow, defenders of the shooter, together with enablers of the Sanford, Florida Police Department, should be working overtime to try to tarnish Trayvon Martin’s personality and credibility. They have been aided and abetted in their efforts by an increasingly unified and race-driven right-wing narrative that takes as its starting point the automatic postulate that anyone with dark skin must be guilty of dark deeds.
Such a postulate goes hand-in-glove with the one which deems queerfolk, of which I am one, to be an existential threat to western civilization. Thus, as I watch new developments in the Trayvon Martin case emerge with every passing day, I find myself thinking back to the murder of Matthew Shepard, almost half a generation ago.
For we saw the same dynamics unfold after Matthew Shepard was brutally beaten and left to die, strung up on a Wyoming fence post in a vicious parody of the crucifixion of Jesus Christ. While most decent Americans found themselves feeling and expressing shock and outrage, the right-wing smear machine quickly swung into action, working to present a narrative of Matthew Shepard as some kind of dangerous homosexual threat to authentic American manhood.
In both the Trayvon Martin and Matthew Shepard cases, right-wing blowhards made haste to suggest, both directly and through calculated innuendo, that both Trayvon Martin and Matthew Shepard had had it coming to them -- that they have somehow acted toward their murderers in a way that invited their own killings. Trayvon Martin ---at least according to the egregious Geraldo Rivera--- deserved what he got at least in part because he was wearing a “come shoot me” hoodie, and Matthew Shepard certainly should have known better then to “flaunt” his sexuality.
Of course the “he needed killin’” defense has its counterpart in what Rick Santorum might call the “sexual realm.” Women who have been raped are often tarred with the same kind of narrative: she asked for it. She was wearing “come f--k me pumps,” or “she was dressed provocatively.” Whatever she was saying, or wearing, in this theory, justifies sexual assault.
At all events, it does not surprise me that, as with Matthew Shepard, the memory and reputation of Trayvon Martin should have come under organized attack from a variety of usual suspects. First, of course, is the incompetent Sanford Police Department whose own version of events has now been contradicted by the damning revelation that their own investigator found George Zimmerman’s version of events unconvincing, and urged that a warrant issue for Zimmerman’s arrest on a charge of manslaughter. The series of leaks emanating from the department, all of them intended to cast aspersions on a dead 17-year-old who cannot speak for himself, raises a strong inference that the department itself is operating with a corporate consciousness of guilt.
Second, the various attempts of such Zimmerman defenders as Joe Oliver --- whose self-destructive interview performance last night with MSNBC’s Lawrence O’Donnell was painful to watch --- to try to prehabilitate Zimmerman against the possibility that he will, at some point, be charged, arrested, and tried, also suggests a sense within the Zimmerman camp that Zimmerman himself is not merely an unattractive potential defendant, but a positive danger to society whose image needs some polishing before he can be presented to a jury of his peers.
Finally, like Matthew Shepard’s presence in a honky-tonk bar in a small Wyoming town, Trayvon Martin’s presence in a gated condominium community in Florida represented perhaps the ultimate transgressive challenge to right-wing culture warriors’ views of How Things Ought To Be. Both Matthew Shepard and Trayvon Martin represented an Other, whose presences in that honky-tonk bar or gated community were so apparently counterintuitive as to trigger homicidal responses. Nonetheless, being a stranger or Other in a counterintuitive place is never, in itself, a justification for murder.
Thus, in order to excuse otherwise inexcusable violence against the stranger/Other, right-wing culture warriors must create a threat narrative, in which the stranger, whether Matthew Shepard or Trayvon Martin, is presented not merely as a cultural outsider, but as an existential threat. Thus it was that the right wing tried ---rather without supporting evidence--- to present both young men as “aggressors,” and made much of the fact that Matthew Shepard had recently tested positive for HIV, or that --- shock of shocks --- Trayvon Martin might have been associated with smoking pot.
In a previous post, I suggested that those of us who are in some way Other have once again been reminded that our place in the Commonwealth remains equivocal. In light of what has been happening, and in light of what happened after Matthew Shepard was murdered, we Others must also remind ourselves that if we are the subject of violence on account of our race, our religion, our gender, or our sexuality, there will always be right-wing defenders of regressive social and political dispensations who will line up to trash our reputations as we are alive and to malign our memory if we are dead, to turn us into the aggressors and to try to claim the mantle of victimhood for our tormentors.
It should not have mattered that Matthew Shepard was gay and HIV-positive, nor should it matter that Trayvon Martin was African-American and might have smoked pot. What should have mattered is that both were victims of violence apparently directed against them on account of their being Other. The message that has been coming from the right since Trayvon Martin’s death is the same as the message that came from them after Matthew Shepard was murdered: being Other can still be a capital crime in which any weedy loser with a gun and a bad attitude is entitled to act as judge, jury, and executioner.
In a country composed of every sort and condition of human being, such a notion ought to frighten us worse than bombs.
-xxx-
PAUL S. MARCHAND is an attorney who lives and works in Cathedral City, California, where he served two terms as a city councilmember. The views expressed herein are his own, and do not necessarily reflect the views of any organization with which he is associated. They are not intended, and should not be construed as, legal advice.
If you have no case, abuse the other side. If you represent an unattractive defendant, blame the victim. Any lawyer can tell you that these are two critical tricks of the trade in our profession.
So, it is hardly surprising that as public outrage over the so-called self-defense killing of Trayvon Martin continues to grow, defenders of the shooter, together with enablers of the Sanford, Florida Police Department, should be working overtime to try to tarnish Trayvon Martin’s personality and credibility. They have been aided and abetted in their efforts by an increasingly unified and race-driven right-wing narrative that takes as its starting point the automatic postulate that anyone with dark skin must be guilty of dark deeds.
Such a postulate goes hand-in-glove with the one which deems queerfolk, of which I am one, to be an existential threat to western civilization. Thus, as I watch new developments in the Trayvon Martin case emerge with every passing day, I find myself thinking back to the murder of Matthew Shepard, almost half a generation ago.
For we saw the same dynamics unfold after Matthew Shepard was brutally beaten and left to die, strung up on a Wyoming fence post in a vicious parody of the crucifixion of Jesus Christ. While most decent Americans found themselves feeling and expressing shock and outrage, the right-wing smear machine quickly swung into action, working to present a narrative of Matthew Shepard as some kind of dangerous homosexual threat to authentic American manhood.
In both the Trayvon Martin and Matthew Shepard cases, right-wing blowhards made haste to suggest, both directly and through calculated innuendo, that both Trayvon Martin and Matthew Shepard had had it coming to them -- that they have somehow acted toward their murderers in a way that invited their own killings. Trayvon Martin ---at least according to the egregious Geraldo Rivera--- deserved what he got at least in part because he was wearing a “come shoot me” hoodie, and Matthew Shepard certainly should have known better then to “flaunt” his sexuality.
Of course the “he needed killin’” defense has its counterpart in what Rick Santorum might call the “sexual realm.” Women who have been raped are often tarred with the same kind of narrative: she asked for it. She was wearing “come f--k me pumps,” or “she was dressed provocatively.” Whatever she was saying, or wearing, in this theory, justifies sexual assault.
At all events, it does not surprise me that, as with Matthew Shepard, the memory and reputation of Trayvon Martin should have come under organized attack from a variety of usual suspects. First, of course, is the incompetent Sanford Police Department whose own version of events has now been contradicted by the damning revelation that their own investigator found George Zimmerman’s version of events unconvincing, and urged that a warrant issue for Zimmerman’s arrest on a charge of manslaughter. The series of leaks emanating from the department, all of them intended to cast aspersions on a dead 17-year-old who cannot speak for himself, raises a strong inference that the department itself is operating with a corporate consciousness of guilt.
Second, the various attempts of such Zimmerman defenders as Joe Oliver --- whose self-destructive interview performance last night with MSNBC’s Lawrence O’Donnell was painful to watch --- to try to prehabilitate Zimmerman against the possibility that he will, at some point, be charged, arrested, and tried, also suggests a sense within the Zimmerman camp that Zimmerman himself is not merely an unattractive potential defendant, but a positive danger to society whose image needs some polishing before he can be presented to a jury of his peers.
Finally, like Matthew Shepard’s presence in a honky-tonk bar in a small Wyoming town, Trayvon Martin’s presence in a gated condominium community in Florida represented perhaps the ultimate transgressive challenge to right-wing culture warriors’ views of How Things Ought To Be. Both Matthew Shepard and Trayvon Martin represented an Other, whose presences in that honky-tonk bar or gated community were so apparently counterintuitive as to trigger homicidal responses. Nonetheless, being a stranger or Other in a counterintuitive place is never, in itself, a justification for murder.
Thus, in order to excuse otherwise inexcusable violence against the stranger/Other, right-wing culture warriors must create a threat narrative, in which the stranger, whether Matthew Shepard or Trayvon Martin, is presented not merely as a cultural outsider, but as an existential threat. Thus it was that the right wing tried ---rather without supporting evidence--- to present both young men as “aggressors,” and made much of the fact that Matthew Shepard had recently tested positive for HIV, or that --- shock of shocks --- Trayvon Martin might have been associated with smoking pot.
In a previous post, I suggested that those of us who are in some way Other have once again been reminded that our place in the Commonwealth remains equivocal. In light of what has been happening, and in light of what happened after Matthew Shepard was murdered, we Others must also remind ourselves that if we are the subject of violence on account of our race, our religion, our gender, or our sexuality, there will always be right-wing defenders of regressive social and political dispensations who will line up to trash our reputations as we are alive and to malign our memory if we are dead, to turn us into the aggressors and to try to claim the mantle of victimhood for our tormentors.
It should not have mattered that Matthew Shepard was gay and HIV-positive, nor should it matter that Trayvon Martin was African-American and might have smoked pot. What should have mattered is that both were victims of violence apparently directed against them on account of their being Other. The message that has been coming from the right since Trayvon Martin’s death is the same as the message that came from them after Matthew Shepard was murdered: being Other can still be a capital crime in which any weedy loser with a gun and a bad attitude is entitled to act as judge, jury, and executioner.
In a country composed of every sort and condition of human being, such a notion ought to frighten us worse than bombs.
-xxx-
PAUL S. MARCHAND is an attorney who lives and works in Cathedral City, California, where he served two terms as a city councilmember. The views expressed herein are his own, and do not necessarily reflect the views of any organization with which he is associated. They are not intended, and should not be construed as, legal advice.
Monday, March 26, 2012
UPDATED: I STILL Believe Anita Hill
UPDATE: The controversy over Arizona House Bill 2625, which would give employers the right to refuse to cover control or other forms of contraception for women in their health insurance plans if they claim a religious objection to providing contraception, continues.
The bill says nothing about ED medications or vasectomies.
Once again, we seem to be confronting a mentality as old as the Book of Genesis, in which all of the onus of reproductive responsibility lies with women, while men remain free to sow their wild oats as they see fit.
The bill says nothing about ED medications or vasectomies.
Once again, we seem to be confronting a mentality as old as the Book of Genesis, in which all of the onus of reproductive responsibility lies with women, while men remain free to sow their wild oats as they see fit.
Can you say “patriarchy?”
Apparently, as much as it was okay for Clarence Thomas to create a sexually hostile working environment for Anita Hill, it is okay for supporters of HB 2625 to create a sexually hostile working environment for every woman in every Arizona workplace.
And the hits keep on coming. You can't make this stuff up.
And that's why it's still important to remember why so many of us believed Anita Hill.
With that in mind, I repost what I wrote a little while ago on the subject.
-------------------------------------------------------------------------------------
With that in mind, I repost what I wrote a little while ago on the subject.
-------------------------------------------------------------------------------------
"I believe Anita Hill."
As I was going through some storage boxes in my office last week (on international women’s Day, it so happens) I came across a cache of old political buttons.
One of them contained the simple message “I believe Anita Hill.”
The confrontation between Anita Hill and Clarence Thomas occurred almost a generation ago; there are political activists in our Coachella Valley today who were either toddlers or yet unborn when Anita Hill’s testimony painted an unflattering portrait of Clarence Thomas is a man who personifies and exemplifies Lord Acton’s famous dictum that “power tends to corrupt, and absolute power corrupts absolutely.”
As I held the “I believe Anita Hill” button in my hand, I recalled a somewhat unfortunate conversation I have had with a former friend of mine, like me, a gay man. What ended our friendship was his statement to me that women’s issues, which he described in a tone that can best be characterized as dismissive, did not matter at all to him.
Was his position simply the misogyny that sometimes crops up among certain isolated individuals in our own gay community? Or was it an indicator of a larger problem? Are we men, as men, so complacently accustomed to the idea of male privilege that, irrespective of our sexual orientation, we don’t feel as if we have a dog in the hunt?
As I was going through some storage boxes in my office last week (on international women’s Day, it so happens) I came across a cache of old political buttons.
One of them contained the simple message “I believe Anita Hill.”
The confrontation between Anita Hill and Clarence Thomas occurred almost a generation ago; there are political activists in our Coachella Valley today who were either toddlers or yet unborn when Anita Hill’s testimony painted an unflattering portrait of Clarence Thomas is a man who personifies and exemplifies Lord Acton’s famous dictum that “power tends to corrupt, and absolute power corrupts absolutely.”
As I held the “I believe Anita Hill” button in my hand, I recalled a somewhat unfortunate conversation I have had with a former friend of mine, like me, a gay man. What ended our friendship was his statement to me that women’s issues, which he described in a tone that can best be characterized as dismissive, did not matter at all to him.
Was his position simply the misogyny that sometimes crops up among certain isolated individuals in our own gay community? Or was it an indicator of a larger problem? Are we men, as men, so complacently accustomed to the idea of male privilege that, irrespective of our sexual orientation, we don’t feel as if we have a dog in the hunt?
If so, we need to disabuse ourselves of that notion.
A generation ago, when Anita Hill was courageously calling out Clarence Thomas for his misbehavior, it probably would have been fair to say that there existed a consensus that the tide of history was moving in favor of full and unequivocal recognition of women’s first-class citizenship in the American Commonwealth. Despite setbacks such as the failure of the equal rights amendment, it did appear that within a relatively short time, women would finally be recognized as the authentic owners of their own bodies, receive equal compensation for work of equal worth, and be fully acknowledged in law as possessing rights coextensive with those of men.
Oh boy, were we ever wrong.
If anything, women in America have come under attacks of such force and magnitude as to justify comparisons between their attackers and the Taliban. Issues we had thought settled and closed, such as access to contraception, are now being re-litigated by social conservatives and presidential wannabes like Rick “Google Problem” Santorum. A woman’s right to make reproductive choices without state intervention is under coordinated attack across the country, and some right-wing commentators have even gone so far as to question whether women should have the right to vote.
So, you may ask, what do these issues have to do with us guys?
The short answer is: an awful lot.
Full disclosure: I may have a somewhat skewed perspective. When I first entered the workforce as a teenager, my supervisors were all women. It was not until I started working as a summer law clerk that I actually was supervised by a man. Several of my close female relatives, including my own mother, are or were in highly responsible executive positions. No woman in my extended family can ever be said to have been barefoot, pregnant, and in the kitchen.
I may also have a skewed perspective because, in a socially conservative University in a socially conservative town in a socially conservative state during the Reagan administration, there were a number of us who were unafraid to be vocally and actively pro-choice; we understood and accepted the risk that standing out in freezing rain defending the Porter County Planned Parenthood facility in Valparaiso, Indiana proclaiming “this clinic stays open” might expose us to a certain degree of calumny from the anti-choice contingent.
And calumny we got.
I know what it’s like to be called “baby killer,” and to have my death prayed for; the thick skin I had to develop stood me in good stead during the years I spent on the City Council in Cathedral City, were being belabored was simply part and parcel of life for my colleagues and me.
For me, the issues at stake have less to do with pregnancy and contraception per se than with basic personal autonomy. As a man, I can’t get pregnant; as a gay man, I can state with some confidence that the likelihood of a pregnancy resulting out of some sexual encounter of mine is probably quite small, nay, nonexistent. But what I understand at a visceral level is that as and to the extent any government can control a woman’s bodily autonomy, whether by forcing her to carry an unwanted or unplanned pregnancy to term, or worse, depriving her of the ability to control through contraception whether a pregnancy even begins, that government can also control the extent to which I am able to live my life openly as an out gay man in the Commonwealth. The same people who want to abolish reproductive choice are those who would happily compass my vanishing under color of a verse in Leviticus.
Sadly, that’s an equation which some in our community don’t seem to get. Fortunately, most of us do, but it remains incumbent on all of us to be forthright in acknowledging that, as a matter of both principle and well considered self-interest, men, gay or straight, need to be with our sisters at the barricades supporting a woman’s basic right to be the mistress of her own body.
When Anita Hill dared to confront Clarence Thomas, she dared to take on an aspect of male privilege that depends for its existence upon an uncritical acceptance of the proposition that men have and should enjoy carte blanche to control women not merely by their actions, but also by their words. Clarence Thomas’ documented acts of inappropriate sexual harassment link him ineluctably to Rush Limbaugh’s slut-shaming of Georgetown law student Sandra Fluke. In both cases, the conduct in question reflected an atavistic assertion of straight male privilege to which the rest of us should take the strongest exception.
And while decent people throughout America have taken exception to Limbaugh’s despicable conduct, the fact that he felt emboldened enough to engage in it at all tells us that we --- especially men --- have a lot more work to do. As presumptive holders of a societal privilege that even now tends to attach more to men than to women, we have a heightened moral responsibility to call out the Clarence Thomases and Rush Limbaughs in our society who believe that being male constitutes a license to engage in what amounts to the verbal equivalent of rape.
Because almost twenty years on, because I still remember the truth-telling courage it took for her to confront Clarence Thomas, I still believe Anita Hill.
-XXX-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California. The views expressed herein are his own, and do not constitute legal advice. He STILL believes Anita Hill.
Sunday, March 25, 2012
IF THE HOODIE FITS: REFLECTIONS ON THE TRAGEDY OF TRAYVON MARTIN
By: Paul S. Marchand
SUMMARY: In addition to inflicting unimaginable suffering on his family, the senseless killing of Trayvon Martin has also become one local government’s worst nightmare, as well as reminding all of us in the commonwealth who are somehow Other just how equivocal our status in that commonwealth really is.
SUMMARY: In addition to inflicting unimaginable suffering on his family, the senseless killing of Trayvon Martin has also become one local government’s worst nightmare, as well as reminding all of us in the commonwealth who are somehow Other just how equivocal our status in that commonwealth really is.
ARE WE TRAYVON MARTIN? Does the hoodie fit?
Like millions of Americans, I have been watching the tragedy of Trayvon Martin --- the black kid whose hoodie, Arizona Iced Tea and Skittles apparently frightened George Zimmerman so badly that Zimmerman shot him to death --- unfold like a slow-moving train wreck. I’ve watched the coverage, and I’ve heard the emerging battle cry “I am Trayvon Martin.” As both a former elected public official, and as a gay man, I find the drama playing out in Sanford, Florida deeply troubling.
Having served eight years as an elected public official, I know at first hand what chaos an event like this can cause in local government. Every mayor, council member, and city manager wants and hopes for good publicity for their community. Failing that, those of us who have been in public life can attest that the next best outcome is to stay out of the news altogether.
But a senseless killing, like that of Trayvon Martin, is a local government’s worst nightmare. The negative publicity, the microscopic coverage by local, regional, and national/international news media can undo, in one short news cycle, years of confidence and reputation-building. Moreover, a single ill considered word can make an already difficult situation orders of magnitude worse.
Thus, I could actually empathize with embattled Sanford city manager Norton Bonaparte as he gave interviews to MSNBC’s Lawrence O’Donnell and Al Sharpton. I could --- to borrow President Clinton’s sentiments --- feel Mr. Bonaparte’s pain as he tried to walk a fine line between uttering necessary words of consolation and condolence to a family bereaved by the senseless loss of a beloved child, while simultaneously avoiding saying anything that could either prejudice an ongoing investigation, mislead the public, or be construed as an admission of some kind of municipal liability.
Having spent a good part of my adult life either in the legal profession or in public service, where we are under a constant obligation to choose our words with exquisite care, I could understand Mr. Bonaparte’s felt need to steer clear of Scylla, while avoiding Charybdis.
Unfortunately, to a public demanding answers, a public official’s careful attempt to evade the clutches of the devil while not falling into a deep blue sea often comes across not as a careful stewardship of the public trust, but more as a pusillanimous effort to avoid telling what others have already decided is the truth. Though there is a compelling case to be made for exercising care in utterance at so delicate a time as this, even the most carefully crafted statements on the issue will invariably come across as contrived and untruthful, especially inasmuch as the Sanford Police Department’s mishandling of the case has already preconditioned a skeptical American public to question the motives and good faith not only of the Department, but of the city government to which it answers. No matter how hard local government tries to apply some form of emollient, or how hard it tries to appease the situation, no good deed on the part of Sanford city government is likely to go unpunished.
If the nightmare now confronting the city fathers and mothers in Sanford, Florida leaves me with a somewhat cynical feeling of “there, but for the grace of God, goes my own community,” it also leaves me with that uncomfortable feeling that comes over any member of the American Commonwealth who is in some manner Other.
There is certainly more than probable cause to believe that Trayvon Martin may well have paid with his life for the “offense” of having the “wrong” skin color for the gated community where George Zimmerman shot him to death. For to be black in America, almost 150 years after Abraham Lincoln signed the Emancipation Proclamation, is still to live in an equivocal and probationary state, in which one’s mere presence in certain parts of the community is enough to excite suspicion, paranoia, and even homicidal tendencies.
As a gay man, I have a luxury, a faculty of negotiating and navigating in the larger world, that my fellow citizens like Trayvon Martin and Barack Obama do not. Because my mark of differencing is not immediately obvious, I can assume the protective coloration of white, male, heterosexual privilege if I need to. Like many gay men of my age, I know how to engage in “straight acting” behaviors; unless I choose to be fairly obvious, “dropping hairpins” to reveal my sexuality, I can usually fly below the gaydar of all but the most sensitive of my straight neighbors.
Nonetheless, the instant I choose to be forthright and honest about who and what I am, the entire architecture of privilege within which I can hide myself by remaining silent collapses. Once I choose to open the closet door and step out into the light, my Otherness can become as dangerous to me as Trayvon Martin’s Otherness was to him.
For even in the 21st century, being Other in America still carries with it not only a kind of stigma, but also a pervasive suspicion of criminality. As much as many African-American parents at some point have “The Talk” with their sons, about what they should and should not do when out and about, the queer community also has a way of educating incoming members about what is and is not safe to say or do in a society where large numbers of individuals, including presidential candidates, preachers, and even Supreme Court justices, would all happily compass our vanishing under color of a Levitical proscription.
The murder --- to use the word Norton Bonaparte himself used --- of Trayvon Martin forces us to confront anew the oft-ignored reality so eloquently expressed by President John F. Kennedy, that the rights of all men are diminished when the rights of one are threatened. If Trayvon Martin can be shot out of hand for being black, or a queer person can be beaten to the point of death for holding his boyfriend’s hand, something is still wrong in our Commonwealth, and all of us who are in some way Other in that commonwealth need to stand together and make common cause. Whether our mark of differencing inheres in our skin color, our spirituality, or the hardwiring of our intimacies, all of us are in danger when any one of us, whether in a suit, club wear, or just a hoodie, is regarded as a legitimate target simply because of our Otherness.
Yes, the hoodie fits. We are Trayvon Martin.
-xxx-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California. He served on the city council there from 2002 through 2010. The views expressed herein are his own, and not necessarily those of any organization or entity with which he is associated. They are not intended as, and should not be construed as, legal advice.
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Sunday, March 11, 2012
I STILL Believe Anita Hill
"I believe Anita Hill."
As I was going through storage boxes in my office last week (on international women’s Day, it so happens) I came across a cache of old political buttons.
One of them contained the simple message “I believe Anita Hill.”
The confrontation between Anita Hill and Clarence Thomas occurred almost a generation ago; there are political activists in our Coachella Valley today who were either toddlers or yet unborn when Anita Hill’s testimony painted an unflattering portrait of Clarence Thomas is a man who personifies and exemplifies Lord Acton’s famous dictum that “power tends to corrupt, and absolute power corrupts absolutely.”
As I held the “I believe Anita Hill” button in my hand, I recalled a somewhat unfortunate conversation I have had with a former friend of mine, like me, a gay man. What ended our friendship was his statement to me that women’s issues, which he described in a tone that can best be characterized as dismissive, did not matter at all to him.
Was his position simply the misogyny that sometimes crops up among certain isolated individuals in our own gay community? Or was it an indicator of a larger problem? Are we men, as men, so complacently accustomed to the idea of male privilege that, irrespective of our sexual orientation, we don’t feel as if we have a dog in the hunt?
As I was going through storage boxes in my office last week (on international women’s Day, it so happens) I came across a cache of old political buttons.
One of them contained the simple message “I believe Anita Hill.”
The confrontation between Anita Hill and Clarence Thomas occurred almost a generation ago; there are political activists in our Coachella Valley today who were either toddlers or yet unborn when Anita Hill’s testimony painted an unflattering portrait of Clarence Thomas is a man who personifies and exemplifies Lord Acton’s famous dictum that “power tends to corrupt, and absolute power corrupts absolutely.”
As I held the “I believe Anita Hill” button in my hand, I recalled a somewhat unfortunate conversation I have had with a former friend of mine, like me, a gay man. What ended our friendship was his statement to me that women’s issues, which he described in a tone that can best be characterized as dismissive, did not matter at all to him.
Was his position simply the misogyny that sometimes crops up among certain isolated individuals in our own gay community? Or was it an indicator of a larger problem? Are we men, as men, so complacently accustomed to the idea of male privilege that, irrespective of our sexual orientation, we don’t feel as if we have a dog in the hunt?
If so, we need to disabuse ourselves of that notion.
A generation ago, when Anita Hill was courageously calling out Clarence Thomas for his misbehavior, it probably would have been fair to say that there existed a consensus that the tide of history was moving in favor of full and unequivocal recognition of women’s first-class citizenship in the American Commonwealth. Despite setbacks such as the failure of the equal rights amendment, it did appear that within a relatively short time, women would finally be recognized as the authentic owners of their own bodies, receive equal compensation for work of equal worth, and be fully acknowledged in law as possessing rights coextensive with those of men.
Oh boy, were we ever wrong.
If anything, women in America have come under attacks of such force and magnitude as to justify comparisons between their attackers and the Taliban. Issues we had thought settled and closed, such as access to contraception, are now being re-litigated by social conservatives and presidential wannabes like Rick “Google Problem” Santorum. A woman’s right to make reproductive choices without state intervention is under coordinated attack across the country, and some right-wing commentators have even gone so far as to question whether women should have the right to vote.
So, you may ask, what do these issues have to do with us guys?
The short answer is: an awful lot.
Full disclosure: I may have a somewhat skewed perspective. When I first entered the workforce as a teenager, my supervisors were all women. It was not until I started working as a summer law clerk that I actually was supervised by a man. Several of my close female relatives, including my own mother, are or were in highly responsible executive positions. No woman in my extended family can ever be said to have been barefoot, pregnant, and in the kitchen.
I may also have a skewed perspective because, in a socially conservative University in a socially conservative town in a socially conservative state during the Reagan administration, there were a number of us who were unafraid to be vocally and actively pro-choice; we understood and accepted the risk that standing out in freezing rain defending the Porter County Planned Parenthood facility in Valparaiso, Indiana proclaiming “this clinic stays open” might expose us to a certain degree of calumny from the anti-choice contingent.
And calumny we got.
I know what it’s like to be called “baby killer,” and to have my death prayed for; the thick skin I had to develop stood me in good stead during the years I spent on the City Council in Cathedral City, were being belabored was simply part and parcel of life for my colleagues and me.
For me, the issues at stake have less to do with pregnancy and contraception per se than with basic personal autonomy. As a man, I can’t get pregnant; as a gay man, I can state with some confidence that the likelihood of a pregnancy resulting out of some sexual encounter of mine is probably quite small, nay, nonexistent. But what I understand at a visceral level is that as and to the extent any government can control a woman’s bodily autonomy, whether by forcing her to carry an unwanted or unplanned pregnancy to term, or worse, depriving her of the ability to control through contraception whether a pregnancy even begins, that government can also control the extent to which I am able to live my life openly as an out gay man in the Commonwealth. The same people who want to abolish reproductive choice are those who would happily compass my vanishing under color of a verse in Leviticus.
Sadly, that’s an equation which some in our community don’t seem to get. Fortunately, most of us do, but it remains incumbent on all of us to be forthright in acknowledging that, as a matter of both principle and well considered self-interest, men, gay or straight, need to be with our sisters at the barricades supporting a woman’s basic right to be the mistress of her own body.
When Anita Hill dared to confront Clarence Thomas, she dared to take on an aspect of male privilege that depends for its existence upon an uncritical acceptance of the proposition that men have and should enjoy carte blanche to control women not merely by their actions, but also by their words. Clarence Thomas’ documented acts of inappropriate sexual harassment link him ineluctably to Rush Limbaugh’s slut-shaming of Georgetown law student Sandra Fluke. In both cases, the conduct in question reflected an atavistic assertion of straight male privilege to which the rest of us should take the strongest exception.
And while decent people throughout America have taken exception to Limbaugh’s despicable conduct, the fact that he felt emboldened enough to engage in it at all tells us that we --- especially men --- have a lot more work to do. As presumptive holders of a societal privilege that even now tends to attach more to men than to women, we have a heightened moral responsibility to call out the Clarence Thomases and Rush Limbaughs in our society who believe that being male constitutes a license to engage in what amounts to the verbal equivalent of rape.
Because almost twenty years on, because I still remember the truth-telling courage it took for her to confront Clarence Thomas, I still believe Anita Hill.
-XXX-
Paul S. Marchand is an attorney who lives and works in Cathedral City, California. The views expressed herein are his own, and do not constitute legal advice. He STILL believes Anita Hill.
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