“intersex is actually an umbrella that covers four parts of human biology: chromosomes, those X’s and Y’s that carry genetic information; gonads, the organs that produce eggs or sperm; the mixture of hormones coursing through a person’s veins; and what their genitalia looks like. An intersex person might have differences in one of these areas, or all of them.”
“Not only is gender a spectrum, but actual physical, biological sex is a spectrum … And so it’s impossible to fit these bodies into a single box.”
“Wong says it’s hard to know for sure what the rate of intersex traits are because there are so many differences that could be counted and because some differences go unnoticed without genetic testing — which most Americans never do. But she and Fraser worry that these laws could mandate that kind of test, say for participation in sports.”
“The distinguishing feature of “stand your ground” laws is that they eliminate the duty to retreat for people confronted by threats of violence in public places. The shooting of Ralph Yarl did not happen in a public place; it happened on the doorstep of the man who shot him. The shooting of Kaylin Gillis likewise happened on the property of the man who killed her. New York, in any event, is not one of the 28 states with “stand your ground” laws. And as Reason’s J.D. Tuccille notes, the Texas cheerleaders, Payton Washington and Heather Roth, “were chased by their assailants, which isn’t self-defense by any understanding.”
So why does NPR suggest that any of these defendants might successfully invoke a “stand your ground” defense? You got me.
A recent New York Times article that begins by citing the shootings in Missouri and New York is equally hazy on the relevance of “stand your ground” laws. Reporter Adeel Hassan compounds the confusion by mentioning a Florida jury’s 2013 acquittal of George Zimmerman, who was charged with second-degree murder and manslaughter after he shot 17-year-old Trayvon Martin.
Zimmerman argued that he reasonably feared for his life when Martin pinned him to the ground, punched him, and smacked his head against the pavement. That account was supported by physical evidence and witness testimony. Given those circumstances, the absence of a duty to retreat did not figure in Zimmerman’s defense or in the verdict.
Politico reporter Brakkton Booker nevertheless asserts that Florida’s “stand your ground” law was “central” to Zimmerman’s trial. Booker also thinks the shooting of Ralph Yarl “has all the ingredients to revive the national debate over ‘stand your ground’ laws,” although he never explains why.
Hassan at least correctly distinguishes between “the common-law ‘castle doctrine'” and “stand your ground” laws. The castle doctrine says people have no duty to retreat when they are confronted by intruders in their own homes. “Stand your ground” laws, Hassan notes, “go further” because they “apply anyplace where a person has a legal right to be, not just at home.” He cites Florida’s law as an example.”
“Texas has a similar law. It allows someone to use deadly force when he “reasonably believes” it is “immediately necessary” to protect himself against the “use or attempted use of unlawful deadly force.” It adds that “a person who has a right to be present at the location where the force is used, who has not provoked the person against whom the force is used, and who is not engaged in criminal activity at the time the force is used is not required to retreat before using force as described by this section.””
“Homicide defendants do sometimes invoke the absence of a duty to retreat in public places, although often implausibly and unsuccessfully, and there is a legitimate debate about whether that extension of self-defense law is fair and prudent. But that debate is muddied whenever news outlets bring up the controversy in contexts where it is plainly irrelevant.”
“Signed into law by Republican Gov. Ron DeSantis in April 2022, the law prohibits private employers and university professors from endorsing certain concepts related to race and other categories of identity. The statute drew lawsuits almost immediately. A number of employers and a diversity consultant challenged a provision that says private employers may not require employees to attend a training or activity that promotes any of eight listed concepts.
Chief U.S. District Judge Mark E. Walker, writing for the U.S. District Court of the Northern District of Florida, Tallahassee Division, then issued an injunction against enforcing that provision. “Normally, the First Amendment bars the state from burdening speech, while private actors may burden speech freely,” Walker wrote. “But in Florida, the First Amendment apparently bars private actors from burdening speech, while the state may burden speech freely.”
In November, Walker issued another injunction, this one blocking a similar section of the law that applies to university professors. He accused the state of essentially arguing that “professors enjoy ‘academic freedom’ so long as they express only those viewpoints of which the State approves,” a position Walker described as “positively dystopian.”
“The First Amendment does not permit the State of Florida to muzzle its university professors, impose its own orthodoxy of viewpoints, and cast us all into the dark,” he concluded.
It is this November injunction the 11th Circuit just left in place.
“Conservatives who cheer on the Florida law should consider what liberal states—or, for that matter, a Democratic-controlled Congress—could do if allowed to engage in similar regulation,” Ilya Somin, a law professor at George Mason University, warns at The Volokh Conspiracy. “The same powers that Florida uses to target ‘woke’ employer speech can just as easily be used against conservative employers.””
“A legal market with high taxes and overly stringent regulations is still a market in which people aren’t arrested and jailed. Rules can be loosened to what people will tolerate, as they have been elsewhere. But New York officials have yet to learn that markets function based on the choices of participants. The wishes of government regulators who want to use them as social-engineering tools and ATMs don’t really matter. Marijuana markets will thrive so long as there are customers to be served. The question is whether they will thrive in the open under light taxes and regulations, or underground to escape the heavy hands of politicians.”
“Since the Dobbs decision, Wisconsin clinics have been proceeding as if abortion is now illegal in the state based on an 1849 law banning the procedure, except to save the life of the mother. However, state Attorney General Josh Kaul, a Democrat, has said he won’t enforce the ban, and Democratic Gov. Tony Evers promised to pardon any doctors convicted of performing an abortion. In fact, on Tuesday, Evers and Kaul announced a legal challenge to the 1849 ban. (Evers has also said he is considering executive action that would limit local prosecutors’ ability to enforce the law.)
But Kaul and Evers could both lose reelection in 2022. Evers’s loss would be especially consequential: Not only might doctors once again face jail time for performing abortions if the 1849 ban is determined to be operative, but also, if it is not, a Republican governor could join forces with the Republican-led legislature to pass a modern abortion ban. The opposite situation — Democrats winning the legislature and working with Evers to enact new abortion protections — is pretty much off the table, though. Wisconsin’s state-legislative maps are heavily biased toward the GOP, so Democrats do not have a realistic shot at winning either chamber.”
“Biden administration officials are now working to undo some of the harmful legal policies put in place by Trump-era attorneys general—less visible than controversial measures like the border wall and family separation, but nonetheless damaging to due process and punitive toward the people who seek asylum on American soil. Last June, Attorney General Merrick Garland scrapped rules that made it difficult for victims of domestic violence or gang violence, as well as family members of threatened individuals, to qualify for asylum.”
“Chief Justice John Roberts wrote for the majority in the case, which split the court cleanly along ideological lines. Roberts said the state’s interest in avoiding concerns about establishment of religion did not justify the policy that effectively blocked parents directing funding to religious schools.
“A neutral benefit program in which public funds flow to religious organizations through the independent choices of private benefit recipients does not offend the Establishment Clause,” Roberts wrote. “A State’s antiestablishment interest does not justify enactments that exclude some members of the community from an otherwise generally available public benefit because of their religious exercise.”
Under the Maine “tuitioning” program the court struck down on Tuesday, local governments lacking the population to run schools at a certain grade level typically pay for students to be educated at public or private schools of their choice. But, to avoid government funds being used for religious purposes, since 1981 the program has refused to pay for schools providing religious education.
In a 2020 decision on an educational aid program out of Montana, the Supreme Court ruled 5-4 that states could not exclude families or schools from student aid programs simply because the schools were backed by religious institutions.
However, that decision left open the question of whether states could block the use of their funds for explicitly religious or “sectarian” classes.
But in the case decided Tuesday, Roberts explicitly rejected Maine’ arguments that it was only targeting religious teaching and not whether a school was run by a religious group.
“Any attempt to give effect to such a distinction by scrutinizing whether and how a religious school pursues its educational mission would also raise serious concerns about state entanglement with religion and denominational favoritism,” the chief justice wrote.
In what is one of his final dissenting opinions before his planned retirement, Justice Stephen Breyer said the court seems to have lost all interest in enforcing the Constitution’s prohibition on establishment of religion.
“The First Amendment begins by forbidding the government from ‘mak[ing] [any] law respecting an establishment of religion.’ It next forbids them to make any law ‘prohibiting the free exercise thereof.’ The Court today pays almost no attention to the words in the first Clause while giving almost exclusive attention to the words in the second,” Breyer wrote.
Breyer also said the court was opening a Pandora’s box with its decision, suggesting that it was simply a way station to requiring all communities to use taxpayer funds to pay for religious schooling.
“We have never previously held what the Court holds today, namely, that a State must (not may) use state funds to pay for religious education as part of a tuition program designed to ensure the provision of free statewide public school education,” Breyer wrote.
“What happens once ‘may’ becomes ‘must’? Does that transformation mean that a school district that pays for public schools must pay equivalent funds to parents who wish to send their children to religious schools?” Breyer asked. “Does it mean that school districts that give vouchers for use at charter schools must pay equivalent funds to parents who wish to give their children a religious education?”
Justice Sonia Sotomayor also dissented, lamenting what she sees as a series of decisions bringing the government closer to direct sponsorship of religious activity.
“This Court continues to dismantle the wall of separation between church and state that the Framers fought to build,” Sotomayor warned. “It is irrational for this Court to hold that the Free Exercise Clause bars Maine from giving money to parents to fund the only type of education the State may provide consistent with the Establishment Clause: a religiously neutral one. Nothing in the Constitution requires today’s result.”
“Forcing American taxpayers to fund private religious education — even when those private schools fail to meet education standards, intentionally discriminate against students, or use public funds to promote religious training, worship, and instruction — erodes the foundation of our democracy and harms students,” NEA President Becky Pringle said in a statement.
A national campaign sponsored by the Education Law Center and Southern Poverty Law Center meanwhile promised to pressure Maine’s legislature into repealing the state tuition program.
Still, the decision’s short-term reach appears to be limited — even if it creates new legal quandaries over the long term.
“Has anything enormous changed? No,” Derek Black, an education and civil rights professor at the University of South Carolina School of Law, said of Tuesday’s decision. “But what we are seeing is that all gray and ambiguous or open questions are being resolved to the benefit of religion.”
In the immediate aftermath, Black said the ruling poses serious challenges for states such as Maine and Vermont that have instituted private school voucher programs that prohibit funds from going to religious schools.”
“Noting that “the Constitution makes no reference to abortion,” Alito argues that “no such right is implicitly protected by any constitutional provision, including the one on which the defenders of Roe and Casey now chiefly rely—the Due Process Clause of the Fourteenth Amendment.” Although “that provision has been held to guarantee some rights that are not mentioned in the Constitution,” he says, “any such right must be ‘deeply rooted in this Nation’s history and tradition’ and ‘implicit in the concept of ordered liberty.'” Alito concludes that “the right to an abortion does not fall within this category.”
That analysis falls short in at least two crucial ways.
First, Alito fails to grapple with the argument that the right to terminate a pregnancy can be understood as a subset of the right to bodily integrity. As the legal scholar Sheldon Gelman detailed in a 1994 Minnesota Law Review article, the right to bodily integrity can be traced back to the Magna Carta. That makes it one of the many rights “retained by the people” (in the words of the Ninth Amendment) that were imported into the Constitution from English law. That right, in other words, is “deeply rooted” in American history and tradition.
Second, Alito’s draft opinion distorts the relevant legal history and thus misstates the historical pedigree of abortion rights. “When the United States was founded and for many subsequent decades, Americans relied on the English common law,” explains an amicus brief that the American Historical Association and the Organization of American Historians filed in Dobbs. “The common law did not regulate abortion in early pregnancy. Indeed, the common law did not even recognize abortion as occurring at that stage. That is because the common law did not legally acknowledge a fetus as existing separately from a pregnant woman until the woman felt fetal movement, called ‘quickening,’ which could occur as late as the 25th week of pregnancy.”
A survey of founding-era legal authorities confirms this view. William Blackstone’s widely read Commentaries on the Laws of England, first published in 1765, noted that life “begins in contemplation of law as soon as an infant is able to stir in the mother’s womb.” Under the common law, Blackstone explained, legal penalties for abortion applied only “if a woman is quick with child, and by a potion, or otherwise, killeth it in her womb.” That means abortion was legal in the early stages of pregnancy under the common law.
Blackstone’s writings had an important influence on America’s founding generation. In his 1790 Of the Natural Rights of Individuals, for example, James Wilson, a driving force at the Constitutional Convention in Philadelphia and a leading voice for ratification at Pennsylvania’s convention, repeated Blackstone’s gloss. “In the contemplation of law,” Wilson wrote, “life begins when the infant is first able to stir in the womb.”
At the time of the founding, no American state had the lawful power to prohibit abortion before quickening because the states adhered to the common law as described by Blackstone and Wilson. We might call this the original understanding of the states’ regulatory powers. That original understanding contradicts Alito’s assertion that abortion rights—at least during the early stages of pregnancy—lack deep roots in American history.”