About the WordPress Rainbow…

Today I opened my WordPress account and found a rainbow at the top.

Be advised this is my last post on this internet platform.

I will attempt a full archive of all posts this afternoon, then temporarily shut the blog until I can identify a non-depraved host.

Please contact me at my yahoo email (which will also soon be closed) if you have any web host suggestions.

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We No Longer Have the Rule of Law

I spoke with a man named Limbaugh today. I thought you might want to read what we discussed.

We No Longer Have the Rule of Law


RUSH: Here’s Ted in Little Rock. Hey, Ted. Glad you waited. Great to have you on the program. Hi.

CALLER: Hey, thank you. Great pleasure being on the radio with you —

RUSH: Thank you, sir.

CALLER: — Mr. Limbaugh. To me the meaning of this latest decision of the court, the one regarding what we call Obamacare, is that the court has basically voided statutory law. Voided statutory law then, you know, I don’t need to worry about statutory law. I need to worry about what I think the tyrants, the people with guns might enforce. What they decide is the law today.

RUSH: That’s exactly right.

CALLER: And let me just finish, add one little thing here. Next up, this session of the court is common law. We’re gonna decide whether or not — or the court is gonna decide ’cause all of us individually can decide whatever we please — we’re gonna decide whether man and wife means man and wife or it means something else. And when that’s done, we don’t have statutory law, we don’t have common law. We got nothing. And then it’s everybody for himself and figuring out what the best move is gonna be based on what people who have the power to enforce —

RUSH: Hang on. I want you to emphasize that point when we get back. Hang on just a second.


RUSH: Back to Ted in Little Rock. Ted, I want you to go the common law aspect of what you said again, but would you do me a favor for people?


RUSH: Statutory law is pretty simple to understand. Statute is a statutory law passed by Congress. What do you mean by common law? You’ve given marriage as an example but give an example of a common law. For example, what’s to stop the chief? If the court accepts the Second Amendment case, given what happened today, what’s to stop the chief justice from saying it’s clear the framers really meant that only members of uniformed militia should have the right to bear arms. Nothing. Now he’s become the sole arbiter if he can get enough people to join him on the court. That’s still statutory, but what is — as you understand, common law, besides marriage? Give some other examples.

CALLER: Well, I’m a structural engineer. I design buildings. You might jokingly say I protect you from architects.

RUSH: (laughing) I understand that, by the way.

CALLER: I appreciate that. So if I am a structural engineer and there’s nothing in the code that says I should design with a particular factor of safety, then we go to what’s broadly described as customary practice or usual practice. In other words, what everybody else is doing and has been doing for a very, very long time. And hopefully that’s based on some level of reality, though occasionally we discover in my profession that, “Wow, how about that? That doesn’t really work the way we thought it did, so we’re going to change all the building codes in California after Northridge.”

So we got that kind of stuff that goes on in my profession. But, you know, if we are at the point now where that kind of argument is no longer valid, if we can’t say, whether it’s marriage or my engineering practice, “Well, everybody else has been doing it this way,” and we’ve all run under the same set of assumptions for a very, very long time, and we had no reason prior to this to believe anything was otherwise, but suddenly something’s changed, and now I’m liable for the change.

Even though I didn’t know and nobody knew at such and such a time. You might not say the same thing’s applicable to the Confederate battle flag, for that matter. Suddenly this has become a symbol of this, that, or the other. Well, you should have known it was a symbol of racism and hate and divisiveness, and, and, and, and, and. So suddenly everybody has to pull it off the shelves. Having it is proof that you are in fact a racist, and here’s the next step for battle flags as far as you want to go. I own a battle flag, therefore I’m a racist, therefore I cannot have a federal or state or local government contract.

RUSH: Okay. So the term in the example of gay marriage, common law has always said that marriage is between a man and a woman. That’s what you meant by a man and a wife. Now all of a sudden, the Supreme Court, despite the fact that we’ve never voted on this, the American people — actually there have been votes in the states. It’s been voted down. Gay marriage has been defeated just like Prop 8 in California was defeated, but here comes the Supreme Court, and they’re probably going to declare that marriage is now defined by whatever they say it’s going to be defined as.

CALLER: Well, again, the statutory law doesn’t matter, so you’re unusually behind. What the people have voted constitutionally or the legislatures of the various states voted in, whether it’s constitutions or laws, are irrelevant, because the statutes, the legislative decisions of the people don’t matter. That’s what this court case says.

RUSH: Right.

CALLER: And so now the only thing left is common law, which is custom, which is history, which is the past, which is what we have always done, sans some decision to make the change. Well, the decision to make the change has been pulled out of the hands of the people. It’s been pulled out of the hands of the representatives of the people. It’s been pulled out of, heck, you know, the tyrants that might rule over the people. We’re down to whatever somebody says who has sufficient authority to back it up. And if the common law falls at that point, there’s nothing left. We’re done. [At this point in the transcript, I’m muted.]

RUSH: Wave bye-bye to traditions and standards and the way things have been done. Well, I know. That is one of the direct results of this ruling today. And the chief justice’s own words pretty much say so. He said (paraphrasing), “Look, I’ve gotta interpret this, and I have to use context and intent to interpret this, and it just can’t mean what it says here. I’m just gonna tell you, I mean, it doesn’t mean what it says, and I got five other judges to agree with me.”

So this is the government the left has always wanted, folks. You have an authoritarian megalomaniac like Obama ruling, not governing, ruling like a monarch. The opposition is paralyzed by fear, so they bend over. And then, according to the highest court in the land, which is supposed to provide a check and a balance against just this kind of thing, the Supreme Court comes along and says, “Well, wait a minute. This law doesn’t mean anything. The words don’t mean anything,” like Scalia said, “The words of this law, the words of this statute don’t mean anything. I’m changing what they mean to mean what I want them to mean for whatever reason I want them to mean what I want ’em to mean.”

So, therefore, there is no meaning. And so Ted’s point is that at this point there is no statutory law and therefore common law is next and so now we just have authoritarian rule. Everybody’s free to say whatever they want to say, do whatever they want to do if they have the authority to back it up. And of course people in the federal government have the authority, many ways to exercise it, to back it up.

Look, folks, I, for one, as I’ve told you earlier today, am not surprised. I thought this was gonna happen. But it’s still depressing and shocking when you see it. Knowing that it was coming and expecting that it was coming does not in any way make it palatable.


RUSH: Yeah, look, I hate to remind you again, but there’s gonna be another whole wave of Supreme Court case decisions announced tomorrow, and probably gay marriage is gonna be among them. You should probably — again, experience guided by intelligence gives you an indication of how that’s gonna be — be prepared just be frothing all over again.


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Just a Little Taste of My Vacation

I may or may not do a vacation post, but this anecdote was worth sharing.

I’m at White Water water park in Branson, spending a cloudy late afternoon poolside, when human entertainment presents itself for my amusement.

An old man is talking with his three grandkids directly before my lounge chair. They’re discussing the next activity, what they’re going to do, et cetera. There’s some good-hearted debate, and the grandfather’s a bit frustrated, though still smiling and laughing, when he turns to me, the audience for this play in one act, and asks, “Would you like some kids? You can have them for free.”

I manage to keep my face completely straight, point at the teenager, and say, “I’ll take the girl.”

The grandfather laughs and answers, “She’s the worst one!” At which point I start laughing, because from this little play so far, the girl has a sharp tongue and I judge the boys are clearly more manageable.

And so the interactive portion of the performance ends.

My wife, lounging beside me, doesn’t chastise me at all.

Thank you, Roissy. It’s a beautiful world, and you prepared me well for my first truly poolside moment.

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An Open Letter to a Closed-Minded Progressive

“Who is my neighbor?” – a lawyer

I suppose it would be nice to write this missive within a philosophical vacuum, but such vacuum simply doesn’t exist.

Curtis Yarvin wrote a very long missive entitled, An Open Letter to an Open-Minded Progressive. Much within that document is just, but the title fails. He has recently completed the experiment testing the hypothesis: is there an open-minded progressive? The result excludes the existence of such creatures.

Sure, I hear you, “Evidence of absence is not absence of evidence,” but I’m the atheist guy who still believes large portions of the Bible, so most of your arguments – Hell! – your whole ass-fucking chain of thought fails to impress me. Curtis just cold-approached a mediocre girl and got thrown out of the bar. Not a hot girl, mind you, a mediocre girl. I think he needs to read more Roissy – and frequent another bar.

One of the most interesting experiences living in Glasgow was the discovery I could walk unmolested through ANY neighborhood. I can’t do that in Little Rock. Sure, I can walk (relatively) safely through any neighborhood in Little Rock, but I can’t pass unmolested. Glasgow was a different matter. I fit the entire contents of Scotland. I could approach strangers and stranger were comfortable approaching me. Trust was assumed. The closest I came to distrust was entering an “Asian” grocery and negotiating the purchase of a single banana. The man didn’t comprehend how I would only want one. Once he understood I was just hungry and had coin (literally), everybody was smiles. I think the poor guy lived in a neighborhood with bums, and I suppose I can resemble a bum after wandering a city for an afternoon. Nah, I always look like a bum. Which brings me to my other thought. I can’t walk nonchalantly into the Little Rock Country Club or Chenal Country Club without a hard hat – ’cause I look like a “bum,” or, more precisely, because I don’t look like I could pay the membership fees for a country club. [I could.] Sam Ambreen would call my experience intersectionality, but wouldn’t, because I’m white, and we don’t get to be intersection, only supremacist, which doesn’t mean what it appears to mean when you read it.

[Note: I have dined at the country club in Jonesboro, but that’s a matter of the local population’s expectations for attire.]

Curtis, tried wandering into a knitting circle, with knitting-inspected invitation in hand, except he was dressed in drag with a swastika carved in his forehead by Aldo Raine. Curtis doesn’t get to be a human being any longer; henceforth, he is only a freak show for the amusement of information technology dilettantes’. That’s a shame, really, since dilettantes usually… hell, it’s in the definition. What Curtis should do, but hasn’t, is organize his own conference inviting complex thinkers from all walks to present difficult topics that require explanation and thoughtful study to comprehend. One can dream.

The primary reason I abandoned information technology as a field of study was it’s complete and utter divorce from reality. It was only after many years apart from the industry that I realized the impact such isolation from consequence can have upon the human psyche. Imagine, if you will, that you can conceive of a three-dimensional Escher environment where walking down can take you up, ascent is descent, left is right, except when it’s left, or inside. My boy sometimes creates spaces within the confines of a Minecraft model that mimic – but do not accomplish – these feats of geometry. I can accomplish the same by “hearthing” my toon in Wow: one moment I am here, then the next I am here. Wouldn’t it be great If reality were so malleable.

“But it is!” you cry. I hear you. A man can become a woman, a wife can become single, the fat made thin, the wise made foolish, the foolish made wise (all with the assistance of Google). Tunney be praised! Or is it an illusion? Will Jenner ever really be a woman? Does the divorcee ever really become single again? Does that gastric bypass really make you thin, or merely less nourished? Did you really make Dawkins into a fool, or is your Christian or Social Justice deity just as foolish as his atheist love of Christmas Carols? Is Tunney a leader or an opportunist?

“Heresy!” you cry. “Alien! How dare you challenge our authority?” Well. dear progressive, how, will remain my secret, but I will tell you why.

I told you that I quit information technology for a reason. I chose, instead, to work in a field where reality was a the final test, with perhaps a little destructive intervention from human beings: structural engineering. You may know the field because it’s been a relentless signpost in history these last several decades. Round about the time I first started my career, a guy named Tim parked a truck filled with an improvised explosive device in front of a “federal building” in downtown Oklahoma City, then blew tens of people, and a large part of the aforementioned building, to smithereens. He claimed to be ignorant that a day care for young children was present at the building, but he did not regret the young lives lost, because he acted to avenge women and children killed at the Branch Davidian compound near Waco and the so-called white separatist family homestead at Ruby Ridge. I’m inclined to believe a man who fully expected to die for his actions, on both counts.

Not long after, a motley collection of Muslims hijacked four airplanes and killed themselves, all the passengers and crew, and a substantial portion of the occupants of the World Trade Center towers in New York City and the Pentagon in Virginia. [I am aware that there are alternative narratives involving empty planes and explosive charges; my argument withstands these.] I am fairly confident that the men who hijacked the planes fully expected to die accomplishing there goals. These mass killings were also, I should add, in revenge for killing “their” people. [Again, adjust the narrative as you see fit.. and hang with me.] So, we mobilized our “armed forces” and reigned hell upon “their” people – or a close approximation thereof – in response to that event. Or so the story goes.

Of course, a lot of this traces back to that first Gulf War back in ’90-’91, the conflict where infidel troops camped in purportedly holy Arabia and Tim learned much of what he needed to know to become a bomber, but perhaps we need to look a little further, back to when Tim hadn’t yet shipped out to Arabia to serve in Iraq. See, Tim purchased a t-shirt with the slogan “White Power” at a KKK protest of black soldiers wearing t-shirts emblazoned with “black power” while on base. Tim got reprimanded for the purchase, ’cause raciss.  I wonder what happened back in Arabia to the guys who decided to trade further life for the promise of glory in heaven?

Now, all that narrative above has one particular thing in common: I couldn’t do a damn thing to stop it.

Let’s say, for sake of argument, that I design the WTC (I didn’t). Do you think I would have designed the building for an airplane hit? If you said, “No,” you’re mistaken, because it was – just not a BIG airplane. Same geos for the Murrah building. Sure, the various authorities will say things like, “…not design for progressive collapse,” but that’s bullshit: every building is designed for progressive collapse; the question is, “How much progressive collapse?” See, a St. Louis boss inherited the Little Rock office where I worked back in ‘-08 or ‘-09 (I forget). He had a good expression for the extra work that can be got from people: discretionary effort. When I’m designing a building, I am obligated to include a code-mandated safety factor. the factor of safety varies according to materials and circumstances, but it can go as low as about 1.2 for reliable materials and predictable loads. Described in terms of labor, that translates to about 8 more hours discretionary effort that an employee will provide to a reliable employer for a manageable project.

Much of life can be described with this term, discretionary effort. Does your wife cook your breakfast, or do you make it yourself? What about blow jobs? When your daughter flunks a college class and loses her scholarship, do you pay the difference and her summer session tuition, or ship her things to her apartment with a parting gift of one month’s rent? Does your daughter get her tuition paid at all? Do you play ball with your son, or watch “the game” with a beer? When your buddy asks to stay at your place, do you offer him the guest room, or couch? Or $100 for a hotel room? Or nothing? The St. Louis boss wanted to impress upon us the notion that we needed to motivate our subordinates to work the extra that was needed to complete work. He neglected to inspire me, however; so I took another assignment.

I submit to you that you have accomplished the same with Curtis and, by extension to other parts of your lives, other men like Curtis who have dared to challenge your narrative. It may be that you are right and we are wrong; that’s not really the point. The point is that, in the meantime, you rely upon us to participate with you as willing partners in life. You will find many are no longer willing. Tim eventually quit the Army when they discovered he didn’t fit the mental profile for an “elite soldier.” Until today, I always found it confusing that this evaluation did not justify his immediate expulsion from the Army, but I had overlooked a critical truth embedded in the lie: Tim was a good enough soldier. he was good enough for a modest investment and shooting things, so long as the commanders of the Army needn’t rely upon him to not stop and think differently. Tim had already begun to think differently.

Curtis thinks differently. The danger inherent in this difference is dramatic. If Curtis does not believe, as you do, that either

(a) all human beings are born with identical talents and inclinations.


(b) human beings may be born with different talents and inclinations, but these talents and inclinations are distributed identically across all living populations.

then you and Curtis have reached an impasse. To obtain Curtis’ participation in your schemes for directing capital for the Greater Good, you must obtain his concurrence that there is a Greater Good. Curtis, I suspect, comprehends that there is not a Greater Good, or more precisely, that the Greater Good has very little to do with him. Hence the preamble to his dilemma,

Frankly, I’m actually considering recanting. Who wouldn’t rather be Galileo than Giordano Bruno? But recanting is a serious matter – it’s the sort of thing you need to get right the first time.

To appear at future conferences without my fellow speakers worrying that I’ll enslave them or kick off Holocaust 2.0, it’d be ideal if someone can tell me what I have to believe.

But it goes further than that. Tim didn’t necessarily reject that either a) or b); Tim merely believed that you punished dissent from your narrative, e.g.: black military personnel publicly wearing “black power” t-shirts is ok but whites purchasing “white power” t-shirts is forbidden. It is impossible to reconcile the equality narrative while pursuing a tactic designed to promote inequality. Since Tim’s life ended, you’ve developed your narrative to include concepts such as “social justice” and “institutional racism,” but these merely sidestep Tim’s objections. You are still often reduced to the accusation,

I think you should also consider the possibility that some past emotional experience is driving all these rationalizations.

Which may be stated more concisely as, “Seek help; you’re crazy,” followed by shunning, or in Tim’s case, since he decisively declared his opposition, death.

That, I think is the crux of the matter for personally. I practice a regulated profession. It is conceivable that a sufficiently aggressive progressive could strip me of my earned privilege based upon my opinions unrelated to that privilege. Except, you don’t think my privilege, or my suffrage, is unrelated to my religion. I am confident that you consider these two one and the same. What is freedom of conscience if acting according to conscience is forbidden, if expressing that conscience results in shunning? If you rob a man of his livelihood by requiring that he violate that conscience by expressing agreement with your religion, does he have freedom of religion? This, ultimately, is the natural expression of your religion: dissent falsifies your narrative so it cannot be permitted.

I do not believe that explosive devices were installed in the World Trade Center and exploded; this does not require that I shun people who believe otherwise because the consequence of our disagreement can be mediated by reality, and in any case, our difference of opinion impacts our transactions very little, if at all. You, in contrast, must shun men such as Curtis from discussions unrelated to his religious opinions because your religion relies upon consensus to endure.

We hold these truths to be self-evident: that all men are created equal, that they are endowed by their creator with certain inalienable right, among these are life, liberty, and the pursuit of happiness.

I feel for you; I truly do. Here’s another one.

For God so loved the world, that he gave his only begotten Son, that whosoever believeth in him should not perish, but have everlasting life. For God sent not his Son into the world to condemn the world; but that the world through him might be saved. He that believeth on him is not condemned: but he that believeth not is condemned already, because he hath not believed in the name of the only begotten Son of God. And this is the condemnation, that light is come into the world, and men loved darkness rather than light, because their deeds were evil. For every one that doeth evil hateth the light, neither cometh to the light, lest his deeds should be reproved. But he that doeth truth cometh to the light, that his deeds may be made manifest, that they are wrought in God.

If you’re a true progressive, it’s likely you’ve abandoned that little fantasy. As Dawkins would say, “You’re an atheist, too. I’ve just gone one more god than you.” What Curtis asks of you is not that you agree with him; that really doesn’t matter. All he asks of you is that you tell him what he must believe. But that won’t work, and you know it, don’t you? If you say, “Believe on the Lord Jesus Christ, and thou shalt be saved, and thy house,” you’d be lying, wouldn’t you? Your religion is more malleable than that, isn’t it? “Believe what we believe, even as we come to believe differently, and you might be saved, you alone, for as long as you are useful.” That’s a bit closer to the truth, isn’t’ it? More likely he’s committed the unforgivable sin: he pointed, and laughed.

I can’t speak for Curtis: he must live his own life and manage the consequences of his own decisions. I can tell you that I am no longer willing to abide by the terms you present for a feeble promise of potential salvation from the sins you’ve invented for profit. I am not a sinner, and if I were, I would determine the scope of my own sin.

I will leave you with one more thought; you may wish to consider it a final warning.

“A certain man went down from Jerusalem to Jericho, and fell among thieves, which stripped him of his raiment, and wounded him, and departed, leaving him half dead. And by chance there came down a certain priest that way: and when he saw him, he passed by on the other side. And likewise a Levite, when he was at the place, came and looked on him, and passed by on the other side. But a certain Samaritan, as he journeyed, came where he was: and when he saw him, he had compassion on him, And went to him, and bound up his wounds, pouring in oil and wine, and set him on his own beast, and brought him to an inn, and took care of him. And on the morrow when he departed, he took out two pence, and gave them to the host, and said unto him, ‘Take care of him; and whatsoever thou spendest more, when I come again, I will repay thee.’

“Which now of these three, thinkest thou, was neighbour unto him that fell among the thieves?” And [the lawyer] said, “He that shewed mercy on him.” Then said Jesus unto him, “Go, and do thou likewise.”

If you read that parable as I did for many years, you read an answer to the questions, “Who is my neighbor?” and the plain answer is, “The Samaritan,” but that’s not what’s in the text. The words are, “He that shewed mercy on him.” You’ve got to circle back to the lawyer’s original answer to Jesus question, “What is written in the law?”

The lawyer replies, “Thou shalt love …thy neighbor as thyself.”

Jesus praises, “You are right.”

The lawyer persists, “Who is my neighbor?”

And Jesus replies, “The man who shows mercy.”

Jesus admonition is not to love men that leave you dying by the side of the road. Such men are not your neighbors. Jesus instructed to love men who will aid you when you are in need of salvation. The lawyer wanted to know, “Who is my neighbor?” not so he might expand that category to include all people, but so that he might narrow that category to a reasonable expectation. Jesus supplied that discrimination.

Curtis is lying on the side of the road. Ya’ll passed by him. More: you shunned him. That’s alright. it’s your choice. We all hear you loud and clear. You are not our neighbor.

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The Wisdom of Leeuwenhoek, Janitor and Dry Goods Proprietor, Courtesy of Paul De Kruif

Regarding the advancement of science by universities.

The professors and students of the University of Leydon were long ago dazzled by my discoveries; they hired three lens grinders to come to teach the students, but what came of it? Nothing, so far as I can judge, for almost all of the courses they teach are for the purpose of getting money through knowledge or for gaining the respect of the world by showing people how learned you are, and these things have nothing to do with the discovering of things that are buried from our eyes. I am convinced that of a thousand people not one is capable of carrying out such studies, because endless time is needed and much money is spilled and because a man has always to be busy with his thoughts if anything is to be accomplished…

On the burdens of instructing others.

I never taught a [student], because if I taught one, I’d have to teach others… I would give myself over to slavery, whereas I want to stay a free man.

Regarding truth

My determination is not to remain stubbornly with my own ideas but I’ll leave them and go over to others as soon as I am shown plausible reasons which I can grasp. This is the more true since I have no other purpose that to place truth before my eyes so far as it is in my power to embrace it; and to use the little talent I have received to draw the wolrd away from its old heathenish superstitions and to go over to the truth and to stick to it.

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The Nation Appears Confused About the Meaning of Freedom

In the news today are two interesting bits of jurist imprudence accomplished by the Supreme Court of the United States of America.

First up is a decision potentially exonerating a man for composing poetry (rap) threatening his ex-wife and posting it online. Dispensing with the background of the case, the relevant portion of the decision may be quoted thus.

 …”wrongdoing must be conscious to be criminal,” and that a defendant must be “blameworthy in mind” before he can be found guilty. [case law reference omitted]. The “general rule” is that a guilty mind is “a necessary element in the indictment and proof of every crime.”

-from Elonis v United States, syllabus

This was a surprisingly united court decision, effectively 8-1, actually 7-2 upon closer inspection. Ultimately, the majority justices seemed to agree that a crime without intent to commit a crime, a threat without intent to threaten, is not in fact a crime. GamerGaters rejoice; just don’t troll anybody with plain threats, which brings us to Thomas’ dissent. [Forgive the long quote; it is difficult to abridge Thomas’.]

Save two, every Circuit to have considered the issue—11 in total—has held that this provision demands proof only of general intent, which here requires no more than that a defendant knew he transmitted a communication, knew the words used in that communication, and understood the ordinary meaning of those words in the relevant context. The outliers are the Ninth and Tenth Circuits, which have concluded that proof of an intent to threaten was necessary for conviction. …

Rather than resolve the conflict, the Court casts aside the approach used in nine Circuits and leaves nothing in its place. Lower courts are thus left to guess at the appropriate mental state for §875(c). All they know after today’s decision is that a requirement of general intent will not do. But they can safely infer that a majority of this Court would not adopt an intent-to-threaten requirement, as the opinion carefully leaves open the possibility that recklessness may be enough.

This failure to decide throws everyone from appellate judges to everyday Facebook users into a state of uncertainty. This uncertainty could have been avoided had we simply adhered to the background rule of the common law favoring general intent. Although I am sympathetic to my colleagues’ policy concerns about the risks associated with threat prosecutions, the answer to such fears is not to discard our traditional approach to state-of-mind requirements in criminal law. Because the Court of Appeals properly applied the general-intent standard, and because the communications transmitted by Elonis were “true threats” unprotected by the First Amendment, I would affirm the judgment…

In other words, “If this that Elonis wrote isn’t a threat, what the fuck is?” I encourage you to read the entire court opinion, especially the summary of events leading to Elonis eventual arrest and conviction.

Second on the docket was a little ditty about a muslima in a head-scarf.

Held: To prevail in a disparate-treatment claim, an applicant need show only that [her] need for an accommodation was a motivating factor in the employer’s decision, not that the employer had knowledge of [her] need.

Let’s just go ahead and call this the crypto-Jew decision. Here’s the background.

Samantha Elauf is a practicing Muslim who, consistent with her understanding of her religion’s requirements, wears a headscarf. She applied for a position in an Abercrombie store, and was interviewed by Heather Cooke, the store’s assistant manager. Using Abercrombie’s ordinary system for evaluating applicants, Cooke gave Elauf a rating that qualified her to be hired; Cooke was concerned, however, that Elauf ’s headscarf would conflict with the store’s Look Policy.

Cooke sought the store manager’s guidance to clarify whether the headscarf was a forbidden “cap.” When this yielded no answer, Cooke turned to Randall Johnson, the district manager. Cooke informed Johnson that she believed Elauf wore her headscarf because of her faith. Johnson told Cooke that Elauf ’s headscarf would violate the Look Policy, as would all other headwear, religious or otherwise, and directed Cooke not to hire Elauf.

The [Equal Employment Opportunity Commission] sued Abercrombie on Elauf ’s behalf, …

Again, let’s hearken to Thomas’ dissent.

Unlike the majority, I adhere to what I had thought before today was an undisputed proposition: Mere application of a neutral policy cannot constitute “intentional discrimination.”

…the majority expands the meaning of “intentional discrimination” to include a refusal to give a religious applicant “favored treatment.”

At first glance, the phrase “because of such individual’s religious practice” could mean one of two things. Under one reading, it could prohibit taking an action because of the religious nature of an employee’s particular practice. Under the alternative reading, it could prohibit taking an action because of an employee’s practice that happens to be religious.

The distinction is perhaps best understood by example. Suppose an employer with a neutral grooming policy forbidding facial hair refuses to hire a Muslim who [maintains unshaven] a beard for religious reasons. Assuming the employer applied the neutral grooming policy to all applicants, the motivation behind the refusal to hire the Muslim applicant would not be the religious nature of his beard, but its existence. Under the first reading, then, the Muslim applicant would lack an intentional-discrimination claim, as he was not refused employment “because of ” the religious nature of his practice. But under the second reading, he would have such a claim, as he was refused employment “because of ” a practice that happens to be religious in nature.

One problem with the second, more expansive reading is that it would punish employers who have no discriminatory motive. If the phrase “because of such individual’s religious practice” sweeps in any case in which an employer takes an adverse action because of a practice that hap- pens to be religious in nature, an employer who had no idea that a particular practice was religious would be penalized. That strict-liability view is plainly at odds with the concept of intentional discrimination….

Thomas, a nigger, continues his excellent argument, effectively convincing me that if he’s all we have left to defend the nation at the Supreme Court, conservative diversity hires may be our best hope for the future of these United States.

For purposes of today’s decision, however, the majority opts for a compromise, albeit one that lacks a foothold in the text and fares no better under our precedents. The majority construes [statute] to punish employers who refuse to accommodate applicants under neutral policies when they act “with the motive of avoiding accommodation.” … But an employer who is aware that strictly applying a neutral policy will have an adverse effect on a religious group, and applies the policy anyway, is not engaged in intentional discrimination, at least as that term has traditionally been understood. As the Court explained many decades ago, “‘Discriminatory purpose’”— i.e., the purpose necessary for a claim of intentional discrimination—demands “more than . . . awareness of consequences. It implies that the decision maker . . . selected or reaffirmed a particular course of action at least in part ‘because of,’ not merely ‘in spite of,’ its adverse effects upon an identifiable group.” …

I do not dispute that a refusal to accommodate can, in some circumstances, constitute intentional discrimination. If an employer declines to accommodate a particular religious practice, yet accommodates a similar secular (or other denominational) practice, then that may be proof that he has “treated a particular person less favorably than others because of [a religious practice].” …But merely refusing to create an exception to a neutral policy for a religious practice cannot be described as treating a particular applicant “less favorably than others.” …

The majority’s novel theory of intentional discrimination is also inconsistent with the history of this area of employment discrimination law. As that history shows, cases arising out of the application of a neutral policy absent religious accommodations have traditionally been understood to involve only disparate-impact liability.

When Title VII was enacted in 1964, it prohibited discrimination “because of . . . religion” and did not include the current definition of “religion” encompassing “religious observance and practice” that was added to the statute in 1972. …Shortly thereafter, the EEOC issued guidelines purporting to create “an obligation on the part of the employer to accommodate to the religious needs of employees.” …From an early date, the EEOC defended this obligation under a disparate-impact theory. …Courts and commentators at the time took the same view. …

This Court’s first decision to discuss a refusal to accommodate a religious practice, Trans World Airlines, Inc. v. Hardison, 432 U. S. 63 (1977), similarly did not treat such conduct as intentional discrimination. Hardison involved a conflict between an employer’s neutral seniority system for assigning shifts and an employee’s observance of a Saturday Sabbath. The employer denied the employee an accommodation, so he refused to show up for work on Saturdays and was fired. …This Court held that the employer was not liable under Title VII because the proposed accommodations would have imposed an undue hardship on the employer. …To bolster its conclusion that there was no statutory violation, the Court relied on a provision of Title VII shielding the application of a “‘bona fide seniority or merit system’” from challenge unless that application is “‘the result of an intention to discriminate because of . . . religion.’” …But if the majority’s view were correct—if a mere refusal to accommodate a religious practice under a neutral policy could constitute intentional discrimination—then the Court in Hardison should never have engaged in such reasoning. After all, the employer in Hardison knew of the employee’s religious practice and refused to make an exception to its neutral seniority system, just as Abercrombie arguably knew of Elauf ’s religious practice and refused to make an exception to its neutral Look Policy.

Alright, I know that’s a lot to read all at once, so I’ll break it down for you as an example.

Kramer observes an obscure religion that requires he fast once a week for two particular days of each week. His employer, a mason, requires employees to work during good weather, regardless of which day of the week good weather occurs. The work is rigorous and cannot be safely accomplished concurrent with a two-day fast. Kramer tells the potential employer that he fasts two particular days each week and cannot work those two days. The employer suspects that this is a religious habit, but Kramer has not requested an accommodation, and even if Kramer asked, the employer does not think it would be possible to provide the accommodation without endangering other masons who would be obliged to work short one man in a crew. Kramer is denied employment, and the EEOC sues, and wins, against the mason, contrary to previous case law which permitted employers to make hiring decisions based upon business exigencies. The only thing that matters for the opinion of the majority is that “an applicant need show only that his need for an accommodation was a motivating factor in the employer’s decision…”

I hope Thomas’ closing does not elude your comprehension.

The Court today rightly puts to rest the notion that Title VII creates a freestanding religious-accommodation claim, but creates in its stead an entirely new form of liability: the disparate-treatment-based-on-equal-treatment claim. Because I do not think that Congress’ 1972 redefinition of “religion” also redefined “intentional discrimination,” …I respectfully dissent from the portions of the majority’s decision that take the contrary view.

Καλώς μονάρχες ξένο σας

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Strange Observations from LinkedIn

I received a random (to me) invitation to “connect” on LinkedIn from a concrete contractor. I don’t think I know the man, so I’ll probably let the invitation sit for a while just to be sure his name doesn’t appear somewhere on a submittal, but for now I’m not expecting anything.

While checking the contractor’s bio on LinkedIn, I also happened to notice a Russian/Ukrainian whose invitation I’d accepted (his posted thoughts regarding BIM were enlightening) is now enlisted in the Ukrainian army. This begs the question, “Is he enlisted or conscripted?” The difference is not trivial. As a scion of a long line of conscripts, the notion of fighting for some remote aristocracy administered by a tyrannical bureaucracy does not appeal to me. Despite my brother’s loud defense of Ukrainian interests, my instinct is that Ukraine is a doomed nation, and any person choosing military service in its cause without force of coercion has discarded both his future and the future of his scions. I could be wrong, of course.

In further LinkedIn news, a former nanny for my children is now a leasing agent (her career seems to return there). I noticed she also finally graduated college with a BA in sociology with a minor in history. It’s too bad the law prohibits her use of sociology or history when leasing property.

Don’t let the nanny thing mislead you: I’m not that wealthy. I was out of the country at the time.

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