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Don't Count Your Chickens

When it comes to blatant leftist power moves to thwart any vestigial resistance to cultural degeneracy, apparently you can never be too cynical. In this post, Jeff Culbreath and the rest of us sensible folk here at W4 celebrated Catholic University of America's sensible decision to re-institute single-sex dormitories.

Now, via SpeakUp University blog, I learn that some lawyer is threatening to sue CUA if it does so for allegedly violating the District of Columbia's non-discrimination laws barring discrimination in housing on the basis of sex.

What??

So, two questions (at least): First, have local laws banning housing discrimination on the basis of sex ever before been taken to require any university to have co-ed dorms? Second, is there not a religious exemption that CUA could use even if so? Mind you, a religious exemption should not be necessary. Secular universities all used to have single-sex dorms and certainly should be allowed to do so even now. Maybe some of them still do.

Hopefully this is just some crack-pot lawyer who won't get anywhere. But I'm not counting my chickens quite yet. Guess they just couldn't allow even the smallest blow to be struck against Fornication 101.

Comments (57)

So, I'm glad to see you're encouraging the formation of same-sex relationships.

Same-sex relationships, Helena, are called "friendships." When attended to by sodomy, they are something else all together. Sadly, sodomy is not actual sex--just as devouring and ingesting a piece of cardboard is not eating, since eating requires food and not just something pretending to be food. [edited, LM]

If this goes through, it'll be a sad proof of my speculations that lawsuits (and pro-lawsuit laws) created de facto bans on morally traditional institutions.

Related:
Did you know Georgetown U was forced to accept a gay rights club in the mid-1980s? See the case "Gay Rights Coalition of Georgetown University Law Center v. Georgetown University." If I have the time I'd like to dive into the activist law journals and see if there's an organized strategy based on this precedent.

All this time I'd thought Catholic universities were willing participants in subversion. Now I'm wondering how much of their subversion was a product of external judicial fiat.

f this goes through, it'll be a sad proof of my speculations that lawsuits (and pro-lawsuit laws) created de facto bans on morally traditional institutions.

Kevin, so can we come up with a law that has draconian penalties for lodging frivolous lawsuits against good sound culture (or, at the least, perfectly acceptable practices that should remain so)? Or would that be counterproductive? I am thinking of something like maybe along these lines: "Your argument is false and vapid, without a shred of foundation, and had you by some strange and terrible miscarriage succeeded in spite of your wrongness, you would have cause damage of extreme calculation. I am fining you $50 million, which is but a pittance compared to the damage you would have caused."

If the tort system can base class-wide damages on statistical regard for what they might have suffered should we not use the tort system to base frivolous suit penalties on the ill that would have resulted? Say, make the upper limit of the fine be a result of dividing the direct and indirect, long-term financial impact of your proposal (forcing all universities that have ANY single-sex dorms - even voluntary ones - to change their dorms) by the degree of coherence of the proposed claim (in this case, about .00001). Not, mind you, that I am much enamored of the tort system as it exists right now.

I think that damages jurisprudence requires actually finding something that (a) has been suffered (at least statistically expected), (b) has a financial aspect, and (c) can be computed (at least estimated). But penalty jurisprudence is I think more open, fluid, and it is more conceivable that a change in law could alter it without re-writing jurisprudence all over the place. There is no doubt that far too many lawyers (and their clients) view lawsuits as "well, we have just a little money to lose, and much to gain". If, instead, they knew that the failed lawsuit could bankrupt BOTH the legal firm AND the clients themselves, maybe they would not think that so readily. (And maybe there would be fewer lawyers, and eventually fewer laws, because you would not have people upsetting custom and forcing law to deal with what custom ought to regulate and would regulate if just LEFT ALONE, DAMMIT).

I wonder if this brave defender of gender equality will also fight the monumental injustice of men being barred from living in women's shelters!

David: or men not being able to join women's college sports teams (especially when the college does not have a men's team in that sport, but really, either way it should be fair game).

"If I have the time I'd like to dive into the activist law journals and see if there's an organized strategy based on this precedent"

Good point. Wouldn't surprise me a bit. That's what's scary about the various states SSM laws -- they can become precedents for other states, which may eventually have acceptance of SSM imposed on them by default.

It's well known that many ACLU victories come as a result of the defendants being unwilling or unable to fight back due to fear of the costs involved in doing so. I see no reason why taking advantage of this would not be a sort of SOP for the legislation-by-judiciary Left.

Tony, I'd love to figure out how to break this system, but I'm no lawyer. I just track down a few cases of interest.

Maybe we could get the BigLaw firms to help us pro bono.

Oh wait, Justice Scalia pointed out in his 1994 dissent in Romer v. Evans that all the BigLaw firms already had non-discrimination policies. Since external policy forms internal habits, they're probably cheering on this suit.

What would be the legal penalties if CUA simply refused to obey a petty judicial ruling? They'd just fine the school to death, right?

What would be the legal penalties if CUA simply refused to obey a petty judicial ruling? They'd just fine the school to death, right?

Well, I imagine that fines would be involved, but at some point the judge would declare the university officials (president, at least, and perhaps a dean or two) to be in contempt of court, and have them put in jail. The sheriff (or bailiff ?) would have to carry it out, so if you managed to get a good solid Catholic sheriff who knows his business properly, he might manage to "not be able to locate them, sir" or something equally non-compliant. But it wouldn't last. You would have to have the entire system support the university in the face of the court to make it work, and even for a truly contemptible court ruling, you will get some goody-2-shoes saying he has to follow "rule of law" basics and "let it be fought in the courts", not comprehending that it is precisely in the courts that the injustice is being perpetrated.

I'm guessing that even in the co-ed dorms they had separate men's and women's rooms. Some schools have separate men's and women's floors. It's still an avant garde idea (though one that I know some schools are starting to go along with) to assign students to _rooms_ randomly on the basis of sex. Is he going to sue all the schools that separate rooms by sex?

The thing is, I can't help thinking that there is some aspect to such laws that means that they were never meant to apply to college dorms at all--perhaps even a precedent or a test case that says that they aren't relevant to college dorms. I suppose with something called the "Human Rights Law" in the District of Columbia anything is possible, but back when women were added to non-discrimination laws in the 60's (which has plenty of problems even on its original intention) there was _certainly_ no intention to ban single-sex dorms. I'd like to know what his chances of success are and if there are any precedents on this.

What would be the legal penalties if CUA simply refused to obey a petty judicial ruling? They'd just fine the school to death, right?

The way this would work, assuming the crackpot plaintiff wins, is the court would issue an injunction requiring CUA to return to its former residence policy. Failure to obey an injunction is, indeed, contemptible activity. The plaintiff could then return to court and move for the school to be held in civil or criminal contempt, or both: somewhat oversimplified, criminal contempt would result in heavy fines, civil contempt would probably result in some school official being incarcerated until he complied (since the defendant is an institution that seems unlikely). If the school declined to comply with a contempt judgment, the District could seize university assets and sell them at auction to satisfy it (just like a bank foreclosing on a mortgaged house).

Kevin, so can we come up with a law that has draconian penalties for lodging frivolous lawsuits against good sound culture (or, at the least, perfectly acceptable practices that should remain so)?

The Rules of Civil Procedure already provide potentially stiff penalties for filing patently frivolous lawsuits. See Fed. R. Civ. Pro. 11. The reasons that rule doesn't do what is suggested here, however, are two fold. One, they allow a litigant to make a good-faith argument for an extension of the law. So if you can dredge up a decision that has reasoning in the ballpark of what you want, and construct a halfway (or quarter-way) logical argument to extend that reasoning to cover the current facts, you can dodge sanctions. Two, there isn't, and under well-established First Amendment jurisprudence probably can't be, any control on the substantive aims of litigation. Rule 11 does prohibit filing papers for "improper purposes," but that means a reason other than securing an available remedy from the court (e.g. just making the other party spend money to defend itself). The courts don't view themselves as capable of making judgments about the normative cultural or social merits of their decisions: not any more, at least not very often. And since there's a pretty good body of caselaw indicating that the right to bring a non-frivolous lawsuit is guaranteed by the First Amendment, substantive limitations of this type probably wouldn't fly anyways.

First, have local laws banning housing discrimination on the basis of sex ever before been taken to require any university to have co-ed dorms? Second, is there not a religious exemption that CUA could use even if so?

One, I don't know. Not that I've ever heard of.
Two, probably not.
Bottom Line: Plaintiff probably doesn't have a case. First, he lacks standing, since he's not getting a room at CUA. Second, the university's policy is not any different in kind from its old policy, since it was already segregating the sexes by floor. Since CUA isn't going to be denying accommodations (or putting anyone in substandard accommodations) based on sex, there's no claim here.

The logical response to this is for CUA to work with a men's rights organization like the one run by Glenn Sacks to sue a prominent liberal-run women's shelter claiming gender discrimination because they won't take in men who have been on the receiving end of domestic violence. If we're going to demand equality uber alles, then let's just run wild with it.

Since CUA isn't going to be denying accommodations (or putting anyone in substandard accommodations) based on sex, there's no claim here.

I agree. That ought to be their response. Of course, this crazy lawyer is analogizing it to dividing students by race, which I'm sure they wouldn't be allowed to do. But this seems the obvious response.

It was, however, somewhat unwise for the president to say in his article announcing the change that they now won't be able to ignore gender in admitting their incoming class anymore because of limits in accommodations. Presumably a lawsuit would refer to that as an admission that they are denying students admission based on sex if the dorms for that sex are filled up.

As far as standing goes, he'll have to find someone to represent who claims to have been discriminated against. In this world, I'm afraid he'll be able to find someone.

But it's possible this is an entirely idle threat that he won't actually pursue but is just trying as a bullying tactic.

Re: the legal standing to sue

I can't find my source now (a comment in a Law Blog) but apparently it's a quirk of DC's Human Rights Act that anyone in the district can bring a lawsuit under it, even if they are not directly affected.

Depending on the devil's ministers to do God's good work is a policy sure to fail. And making appeals to our system of justice to execute justice looks like a fool's errand, but I suppose it must be tried, because even in our judiciary might be found a fool or two for Christ. This is what we are reduced to: bringing a case into the system in the hopes that it meets the odd Christian in the system, who knows how to obfuscate his Christianity in making judgments.

Off the top of my head, the California law allows religious organizations to discriminate (except on race and national origin) on its non-commercial housing. All housing laws I'm aware of allow distinctions to be made, in certain circumstances, on sex distinctions.

This is from the DC law,

"(b) Nothing in this chapter shall be construed to bar any religious or political organization, or any organization operated for charitable or educational purposes, which is operated, supervised or controlled by or in connection with a religious or political organization, from limiting employment, or admission to or giving preference to persons of the same religion or political persuasion as is calculated by the organization to promote the religious or political principles for which it is established or maintained."

"§ 2-1402.41. Prohibitions.
It is an unlawful discriminatory practice, subject to the exemptions in § 2-1401.03(b), for an educational institution:
(3) Notwithstanding any other provision of the laws of the District of Columbia, it shall not be an unlawful discriminatory practice in the District of Columbia for any educational institution that is affiliated with a religious organization or closely associated with the tenets of a religious organization to deny, restrict, abridge, or condition -
(A) The use of any fund, service, facility, or benefit; or
(B) The granting of any endorsement, approval, or recognition, to any person or persons that are organized for, or engaged in, promoting, encouraging, or condoning any homosexual act, lifestyle, orientation, or belief."

"§ 2-1402.42. Exceptions regarding sex discrimination and age.
(a) Nothing in this chapter regarding sex discrimination in admission policy shall apply to any private undergraduate college or to any private preschool, elementary or secondary school; except that, when any of the above exempted colleges offers a course nowhere else available in the District, opportunity for admission to that course must be open to students of both sexes who otherwise meet lawful requirements for admission.

Apparently the professor is using a separate but equal argument and the university is claiming "business necessity" exemption. Without seeing any case law, and given the quoted and other exemptions for religious institutions as well as the history of separate but equal as a racial issue, the university likely has a better case and has broad latitude in moral issues.

There is nothing inherently "leftist" here; all we seem to have is a single professor with a hobby horse to ride.

Apparently the professor is using a separate but equal argument and the university is claiming "business necessity" exemption.

One of the funny little ironies of this case is that feminists should applaud the university's decision to make sure men and women are separated because it reduces the risk of sexual assault. It doesn't take much imagination to think of all sorts of things that could do wrong with coed "platonic" roommates where one or both come home from parties drunk, get in bed then happen to notice the other is starting to look pretty good...

I can't find my source now (a comment in a Law Blog) but apparently it's a quirk of DC's Human Rights Act that anyone in the district can bring a lawsuit under it, even if they are not directly affected.

I'm not surprised that DC has such a bizarre law, but that doesn't mean he can walk into a federal court on that basis. Standing in federal courts is controlled by federal law with constitutional overtones, which (for a nice change) actually makes quite a bit of sense.

Of course, this crazy lawyer is analogizing it to dividing students by race, which I'm sure they wouldn't be allowed to do.

Dog won't hunt: even the Court's Grand High Termagant, Ginsburg, hasn't been able to get sex discrimination into the strict-scrutiny category, at least not officially. So the race comparison doesn't get you much anywhere.

Actually, though, Al, as I read the religious exemptions you quote, none of them directly address the issue of housing and gender.

P.S. for Al:

The quoted DC statutes don't address the situation here (except insofar as the university would have to change its admissions formulae). Also, the professor's hobby horse is a very leftist sort of equine: it doesn't like traditional distinctions based on sex and is hostile to religious institutions and publicly visible religiously motivated activity. The second has been standard leftist fare since the 18th century, the first for at least fifty years. So let's not be silly in claiming that this is just an idiosyncratic, cranky academic with no ideological inclinations whatsoever.

Titus, I think he's planning to sue directly under the DC act--presumably in some local court, not in federal court. Apparently (based on one of the stories linked from the SpeakUp entry) he makes a hobby of bringing cases under this Human Rights Act.

Oh, yeah, Al: This has _nothing_ to do with left or right. I'm sure Lawyer Banzhaf is as likely to be a member of Opus Dei or the Tea Party as of any left-wing organization.

Titus, I think he's planning to sue directly under the DC act--presumably in some local court

Local courts in DC are federal courts: the District isn't a state and doesn't have any authority to establish a judiciary except under Congressional mandate. I must admit to not being sure to what extent the appellate courts have permitted the "local" DC courts to adopt their own procedural and common law.

And I had forgotten about the DC Human Rights Commission itself: if there's something to watch out for, it's administrative proceedings there. Little fake administrative courts like that are always the most dangerous (and often aren't bound by basic rules like standing, thus the "anyone can file a complaint" nonsense).

"Actually, though, Al, as I read the religious exemptions you quote, none of them directly address the issue of housing and gender."

True, but if we take the business exemption and the religious exemptions along with the lack of a parallel between race and sex, I would guess a tilt towards the university. A business has to prove a non-economic reason for a particular matter. If the university says we tried co-ed dorms and we find them to be inconsistent with our mission as a religious institution so we are doing the status quo ante thing, how does the court rule against that? Perhaps our professor is just rolling the dice here.

I find Ginsburg's arguments on sex and equal protection persuasive but this is different. Separation by race gets us into the whole badges and incidents thing; not so much for separation by sex in matters of dorm housing in a private institution.
Again, it would be useful to see the relevant case law.

"Oh, yeah, Al: This has _nothing_ to do with left or right. I'm sure Lawyer Banzhaf is as likely to be a member of Opus Dei or the Tea Party as of any left-wing organization."

Given the context, Opus Dei was probably a poor choice but I understand your point despite the example of Ted Olson. The likelihood that the professor is on the left is a different matter entirely than co-ed dorms as anything other than a niche issue for some sub-set of folks who may be on the left. This is the sort of issue that is time sensitive. My sense is that social libertarianism is stronger than in the past on both the left and right (gay marriage, etc.). That works to the universities advantage. Just don't see where the by now ritual denunciation serves any purpose, that's all.

Titus, one linked story says he claims to have served them with an intent-to-sue. Would that have to mean a DC court (hence, as you rightly correct me and point out, federal) or could it refer to the Human Rights Commission?

But I'm not counting my chickens quite yet.

Even if you were, some of them are wearing masks so your tally will be off.

What about the blatant discriminatory behavior of all those women out there who refuse to engage in sexual activity with me, just because they are "in a relationship" -- or worse, just because they don't want to? Surely, we can all agree that such behavior and attitudes violate all our most cherished ideals of non-discrimination?!

Don't Count Your Chickens???

Couldn't you have picked on turkeys? At least you would have been describing the lawyer's character. You might be visited by a representative for Chicken's Hoping to Eliminate Embarrassment to Poultry (CHEEP).

As for single-sex dorms, I say, not all discrimination is either bad or unreasonable. I am an anti-discrimination discriminator.

The Chicken

Isn't non-discrimination an oxymoron? Isn't non-discrimination discrimination against those who discriminate? They should call it what it is: I-want-my-way-and-I-want-it-NOW. IWMWAIWIN - IWMWA I WIN.

The Chicken

"Chapter: 4-8 COMPLIANCE RULES AND REGULATIONS REGARDING GENDER IDENTITY OR EXPRESSION"

"802 RESTROOMS AND OTHER GENDER SPECIFIC FACILITIES"

"802.1 All entities covered under the Act, as amended, shall allow individuals the right to use gender-specific restrooms and other gender-specific facilities such as dressing rooms, homeless shelters, and group homes that are consistent with their gender identity or expression"

http://www.dcregs.dc.gov/Gateway/ChapterHome.aspx?ChapterNumber=4-8

If gender-specific group homes are allowed, why wouldn't gender-specific dorms be allowed?

As for single-sex dorms, I say, not all discrimination is either bad or unreasonable.

It makes perfect sense that MC believes in a pecking order.

Titus, one linked story says he claims to have served them with an intent-to-sue. Would that have to mean a DC court (hence, as you rightly correct me and point out, federal) or could it refer to the Human Rights Commission?

There's no such thing as an "intent-to-sue" letter. That's just a polite term for a "drop dead" or "do as I say" (or even "go to hell") letter that lawyers send to try and badger a potential opponent into compliance without incurring the expense of filing a lawsuit (or because the lawsuit itself would prove unwinnable). In a few rare cases such letters can be a useful manner of settling legitimate claims. But usually they're either pointless or bullying. And they have no more binding effect on his choice of forum than if he spray-painted his gripe on the sidewalk.

If gender-specific group homes are allowed, why wouldn't gender-specific dorms be allowed?

Expressio unius est exclusio alterius. Besides, that provision doesn't give a license to operate single-sex accommodations, it forces them to let individuals into whatever such accommodations do exist based not on objective criteria but on the individual's own "gender identity or expression." That's a pretty weak source for a defense.

A business has to prove a non-economic reason for a particular matter. If the university says we tried co-ed dorms and we find them to be inconsistent with our mission as a religious institution . . . I find Ginsburg's arguments on sex and equal protection persuasive but this is different. Separation by race gets us into the whole badges and incidents thing . . . Again, it would be useful to see the relevant case law.

I'm not sure what you're driving at with the non-economic reason language, Al. Usually it's economic reasons that get businesses out from under discrimination suits ("I didn't do it because I dislike X group, I did it because it's good business" won't win every time, but it's a good start). "Inconsistent with our religious mission" is good in a lot of contexts, but it can get dicey when you're not talking about employment decisions. It should fly and it might, but it's not guaranteed.

As for Ginsburg's arguments on sex and EP, she'd eat this up: conforming to traditional norms, reinforcing gender roles, relying on stereotypes, etc.: quite similar to the badges and incidents analysis. Just regurgitate her opinion in United States v. VMI (which is fitting, since it one of the more vomitous caricatures of jurisprudence I've ever seen) and you have more than enough language with which to argue against CUA's policy, or any other law or policy that recognizes that there are such things as women in nature but doesn't provide them with birth control, abortions, or college sports nobody cares about.

I'm not being doom and gloom here: I still don't think the loon has a case. But I also don't think Al can simultaneously praise Ginsburg's EP jurisprudence and claim that CUA has a self-evident defense. Maybe the state-actor doctrine does that much in VMI, but it's proved pretty slippery for schools taking federal money (i.e. everyone but Hillsdale).

Lydia,

Slightly OT, an interesting fact I learned today from the radio show "A Closer Look". The guest was this guy from the website "LifeSiteNews.Com":

http://www.lifesitenews.com/author/jhwesten/

Mr. Westen is Canadian and argued on the show that many of the legal strategies the crazed gay rights, abortion rights, and generally left activists use are tried in Canada and then imported here to the U.S. I thought it was interesting what he had to say. For example, in Canada when gay "marriage" laws were passed protections were written for religious organizations and activists said it was ridiculous that they would ever go after churches or religious institutions. What happened? They started going after churches and religious institutions.

Here's the problem in a nutshell: politics, like nature, abhors a vacuum. Liberalism promises a vacuum, a public place in which a variety of worldviews can interact harmoniously without disturbing the fundamental principles of justice. But guess what happens? Some of these worldviews differ on what constitutes the proper application of these principles of justice, since their differences concern the natural order and the nature of civil society, precisely in those areas in which worldviews are supposed to offer illumination. Thus, questions concerning human sexuality--and the proper relationship between the sexes--cannot be answered by appealing to liberal principles of justice without smuggling in substantive beliefs about the natural order and civil society that, ironically, liberalism has promised us must be excluded from the public space. So, what to do? Tyrannically equate one's contested worldview--that happens to be comprehensive liberalism--as an entailment of political liberalism. In that sense, comprehensive liberalism takes over more and more "neutral" real estate while claiming to be advancing "principles of justice" that are worldview independent.

Of course, Catholic University--under any respectable construal of liberalism--should have the right to make its own student living arrangements consistent with its understanding of the good life. But we don't live in a politically liberal regime anymore. We live in a comprehensive liberal regime in politically liberal drag.

Liberalism promises a vacuum, a public place in which a variety of worldviews can interact harmoniously without disturbing the fundamental principles of justice.

Color me woefully ignorant, Dr. Beckwith, but what exactly are these "worldview-independent liberal principles of justice," and how can they possibly be worldview independent to begin with?

I ask because, as I currently see things, any fleshed-out conception of justice presupposes some sort of moral system, which presupposes some sort of moral order, which in turn presupposes some sort of overarching metaphysical vision of reality - i.e. a worldview. It's exceedingly odd to me how any liberal philosopher can advance an idea that, right off the bat, seems to collapse under the weight of incoherence.

Jeff, good point about Canada, and I wd. connect it to what Titus said above about "little fake administrative courts." We've heard of those in Canada.

So now I'm saying to myself, "Congress set up one of those for the District of Columbia? How much power does it have? And what were the members of Congress smoking when they voted for it?"

Frank, well-said. I don't see how anyone can really believe that a vacuum is possible. _Some_ notion of right and wrong is required if we are not to have anarchy. Used to be there was a "least common denominator" that served okay. But not anymore, because ideologue comprehensive liberals won't let it rest at that.

Shierke, your point _is_ Dr. Beckwith's point. As for this,

It's exceedingly odd to me how any liberal philosopher can advance an idea that, right off the bat, seems to collapse under the weight of incoherence.

You'd be amazed.


"We live in a comprehensive liberal regime in politically liberal drag."

Or, we merely live in a nation with a legal system which is easy to access - especially if one has a degree in law and experience in litigation. In a nation of 300 + millions we can find at least one person who will believe anything. As Orly Taitz has demonstrated, that and the will to litigate is all it takes; is Orly part of "a comprehensive liberal regime in politically liberal drag"?

For the record, I found the original comment about standing in the comments from the ABA journal:

looks like anyone has standing to file a complaint under the HRA.

§ 2-1403.04. Filing of complaints and mediation.


(a) Any person or organization, whether or not an aggrieved party, may file with the Office a complaint of a violation of the provisions of this chapter, including a complaint of general discrimination, unrelated to a specific person or instance.


Titus writes of a " letter that lawyers send to try and badger a potential opponent into compliance without incurring the expense of filing a lawsuit."

The lawyer in this case might not only be thinking of CUA. Perhaps he is trying to do his bit to pressure any other university from reconsidering its housing policy.

Al. Access to remedies for private and criminal injustices is essential to our legal system, to be sure. But it seems that in this case, the "remedy" sought is not for the purpose of vindicating an injustice done to the plaintiff, but rather, an attempt on the part of the plaintiff to punish a Catholic institution for having the temerity to put into practice--after many years of non-practice--what it believes to be true. Essentially, the law is being conscripted here as a club by a private citizen to inflict harm on a religious institution for exercising its fundamental liberties that arise as a matter of conscience informed by its moral theology. To coin a phrase, "How does Christian chastity harm this lawyer's erotic life?" Count me as puzzled, but is not chastity an act between consenting adults? It seems only fair that chastity should be considered as sacred a choice in our regime as is hooking-up. You are pro-choice, are you not?

Great comment, Frank!

Al, what you refer to as "a legal system which is easy to access" is in actual practice a system of (a) legal extortion, and (b) a system of cranks shooting potshots at the culture without any prospect of having to duck from return fire. The legal extortion comes in lawsuits that companies (including insurance companies) choose to settle even when they know that they have the law on their side, because they cannot trust the justice system to uphold the law: they know that there are too many judges out there who won't submit to upholding the law because they think the law gives an unsatisfactory result. Potshots at good, sound, wholesome culture, like the current discussion's case, are being thrown around all the time because the thrower perceives there is no risk or downside to being found to have been completely silly, and because (see prior point) there is always a judge around somewhere that will think an argument is at least worthy of being heard out in full, instead of being (literally) laughed out of court with penalty. Penalties for taking potshots at the culture ought to be much more common, and much stiffer, than what actually happens in practice.

Dr. Beckwith, I don't see how we can assign any motives to the lawyer with the information we have. He has sued everyone from the tobacco companies to the prosecutor in the Duke Rape case. He sues a lot of people. He has been compared to Ralph Nader and seems to be an odd character - like Ralph. He may well have reasons that have nothing to do with religion or chasity and everything to do with some other agenda.

Much as you and others would like to fit this into some kind of ideological template, the evidence just isn't there. The culture wars are important to you all. However one may feel about co-ed dorms, it just isn't important enough to get worked up about - unless one is a right liberal, I guess.

Again, I don't see a case here.

Yes, I'm pro choice - Biola has a right to set certain standards for those who choose to attend, Catholic University has a right to change their minds on co-ed dorms, same sex couples have a right to choose civil marriage, religious organizations have the right to define marriage within their organizations, and women have the right to control their bodies.

Titus, I don't see any way in the VMI decision to get to the present case. I understood the reasoning in the Virginia case to be that the state, having an elite male only school which attendance at and graduation from conferred benefits which were not available from the offered alternative, engaged in an equal protection violation. That it was a state school was central.

Saeual differences can still be taken into account,

"The heightened review standard our precedent establishes does not make sex a proscribed classification. Supposed "inherent differences" are no longer accepted as a ground for race or national origin classifications. See Loving v. Virginia, 388 U.S. 1 (1967). Physical differences between men and women, however, are enduring: "[T]he two sexes are not fungible; a community made up exclusively of one [sex] is different from a community composed of both." Ballard v. United States, 329 U.S. 187, 193 (1946)."

"Inherent differences" between men and women, we have come to appreciate, remain cause for celebration, but not for denigration of the members of either sex or for artificial constraints on an individual's opportunity. Sex classifications may be used to compensate women "for particular economic disabilities [they have] suffered," Califano v. Webster, 430 U.S. 313, 320 (1977) (per curiam), to "promot[e] equal employment opportunity," see California Federal Sav. & Loan Assn. v. Guerra, 479 U.S. 272, 289 (1987), to advance full development of the talent and capacities of our Nation's people. [n.7] But such classifications may not be used, as they once were, see Goesaert, 335 U. S., at 467, to create or perpetuate the legal, social, and economic inferiority of women."

Given the existence of fraternities and sororities, I don't see how Catholic University's dorm policy "[denigrates] the members of either sex or [puts] artificial constraints on an individual's opportunity". I just don't see a case here.

I just don't see a case here.

I commend you. There is no case here, that's why you don't see one. 99 chances out of 100, though, the judge will not levy a penalty for a frivolous suit, because HE won't say, as do all of the rational civilians and legally trained people with no axe to grind within hearing "there ain't no case and never could have been even remotely."

But then, there was no case for VMI either. Just because a judge found a case, and convinced 4 more, doesn't mean that's what the law was supposed to mean. It is not a matter putting an end to "perpetuating" the inferiority of women to say (a) they have just as much right to attend VMI as males do, and then say (b) but you have to adjust the physical regimen for women because they cannot meet that of men. That's STUPID. Plain and simple.

Even aside from that, Virginia (as does the rest of the country) has a legitimate interest in reserving the immediate evils of warfare to men and protecting women therefrom - even if SOME women don't want to be protected from them. The consequences of reserving the immediate evils of warfare to men are manifold, and an incidental one is connections that result when men serve side by side. You cannot call such an incidental connection "perpetuating" the inferiority of women in any sense that the law ought to notice. You might just as well call the connections that people make at UVA "perpetuating" the inferiority of all those Virginians who have not been accepted to UVA, because they are excluded from the fraternal associations gained by attending UVA. Stupidity squared.

It wasn't an injustice that women were excluded from being trained to serve militarily when it serves a cultural good to have women not serve militarily. The lawsuit against VMI was, in essence, a suit against the cultural value of protecting women from being enmeshed in killing people. The courts had no business deciding that such a cultural value ought to be set aside - judges are not the arbiters of the culture in that way. In fact, most judges these days (i.e. mostly liberal) seem to say they aren't supposed to take a stand for or against the culture - which is of itself a disqualifying defect for a judge, since all of the government ought ought to promote the culture as a default - but in practice what these activist liberal judges do is to take a stand against the culture whenever they feel like it because they don't think the traditions of the culture ought to be respected.

I'm going to make a prediction: If this case, instead of being sent up as a test balloon by a single lawyer and, hopefully, shot down, had somehow been brought in federal court and had wended its way up and up and finally been adjudged by SCOTUS to rule out single-sex dorms as unconstitutional, Al would have agreed with the majority and would have a completely different take on it.

Just my guess. I think it's partly a matter of the prestige of the lawyer or band of lawyers making the argument (or "argument").

No Lydia, you lose. I would probably agree with many if not most of the suits Banzhaf has brought (certainly the Duke one and the tobacco cases) but when one is wrong, one is wrong. Also, Citizens United was terribly wrong as was Carhart II. When the SC majority is wrong, it is wrong. Why not just accept that your stereotypes about liberalism are out of touch with reality? The left is currently way less ideological and monolithic than the right.

The left is currently way less ideological and monolithic than the right.

Well, it was only a prediction, Al, and hopefully we'll never know, but I do find your allusion to Carhart II amusing as an intended illustration of the non-monolithic and non-ideological nature of the left. Choke, chuckle. Oh, wait! I know! You think Carhart II was wrongly decided because it didn't overturn Roe v. Wade while it was at it. Okay, maybe not.

in lawsuits that companies (including insurance companies) choose to settle even when they know that they have the law on their side, because they cannot trust the justice system to uphold the law: they know that there are too many judges out there who won't submit to upholding the law because they think the law gives an unsatisfactory result.

Insurance companies are rarely this philosophical. In the U.S., there are few opportunities to collect your attorneys' fees from a losing opponent. That means, as a defendant, that you have to sink $X (and experienced counsel can tell you what X will be in a given case) simply to defend a case you're likely to win. Cases are settled at that point when the sunk cost of defending them through the next dispositive stage exceeds the amount for which they can be settled. And concerns about the law are rare: if businesses get harassed it's because the law itself has been tortured, frequently but not invariably by voters or the legislature, to create inane causes of action. See the ADA. What really drives pre-trial settlement is concern about juries, which really are unpredictable.

The lawsuit against VMI was, in essence, a suit against the cultural value of protecting women from being enmeshed in killing people.

The Termagant's opinion makes this quite clear: she is explicit about it.

looks like anyone has standing to file a complaint under the HRA.

Yeah, because it's not a court, standing rules don't apply. It's Katie-bar-the-door in a forum like that.

And Dr. Beckwith is absolutely correct, but my comment is over-long already.

But we don't live in a politically liberal regime anymore.

You never did. Reality has a well-known liberal bias, Saint Colbert observed this truth years ago.

As Orly Taitz has demonstrated, that and the will to litigate is all it takes; is Orly part of "a comprehensive liberal regime in politically liberal drag"?

Orly Taitz looks like someone in drag, that must count for something.

The left is currently way less ideological and monolithic than the right.

That is true but it is also bad.
http://fivethirtyeight.blogs.nytimes.com/2011/07/07/why-the-g-o-p-cannot-compromise/

That means, as a defendant, that you have to sink $X (and experienced counsel can tell you what X will be in a given case) simply to defend a case you're likely to win. Cases are settled at that point when the sunk cost of defending them through the next dispositive stage exceeds the amount for which they can be settled. And concerns about the law are rare: if businesses get harassed it's because the law itself has been tortured, frequently but not invariably by voters or the legislature, to create inane causes of action. See the ADA. What really drives pre-trial settlement is concern about juries, which really are unpredictable.

Titus, I agree with much of that, but I tend to think (without, admittedly, being able to prove it) that much more of the danger that companies are wary of is from courts than from laws or voters. If juries are a problem because they are so unpredictable, it may be because the laws are so wacky that any unpredictable result is contained within the laws, but I think it more realistic to say that the jurisprudence has made the capacity to understand what a jury will make of the laws is unpredictable. Take, for example, courtroom rules of evidence: if a policeman doesn't have a warrant to enter your home, the illegal X he finds there, or even the smoking gun, is thrown out as it were no evidence at all. Why cannot the jury be told, instead, that the policeman's failure to follow the law may discount the value of the evidence by some degree (a matter up to the jury), instead of the court taking the entire judgment out of the hands of the jury as if the policeman's claim of finding X were a non-entity. The rules of evidence are, basically, opposed to reason and conflict with reality, so it is not surprising that juries' actions based on them are impossible to predict. Same with testimony.

Take, for example, courtroom rules of evidence: if a policeman doesn't have a warrant to enter your home, the illegal X he finds there, or even the smoking gun, is thrown out as it were no evidence at all.

That is because the state has to have a legal justification to search your property. Evidence also gets thrown out if the police can't prove a constant chain of custody. To anyone without a blind faith in police conduct and anyone who thinks the state needs a high bar to prove guilt instead of the assumption of guilt and proving innocence, those rules are reasonable protection from prosecutorial and police misconduct. Unfortunately, a majority on the Supreme Court are busy eroding the exclusionary rule, so you may get your wish.

Tony, the exclusionary rule has, as far as I can tell, nigh-zero to do with any actual reduction in evidential value of the evidence collected and everything to do with dis-incentivizing police and prosecutorial gathering of evidence in violation (or what is held to be violation) of constitutional rights. In other words, the idea seems to be that if the evidence were given to the jury, this would provide a perverse incentive for police misconduct to secure a conviction. I suppose if a person were actually tortured or threatened, then one could make an argument that the evidence thus collected was unreliable. But if it's merely a matter of collecting evidence with a warrantless search, then the idea isn't that the evidence is unreliable but that the police should be, in essence, punished for collecting it in that fashion so they won't do so anymore.

I haven't fully made up my mind what I think of it. At the risk of being OT, I have to say that it's pretty rich in light of what we put up with from the TSA (the complete loss there of ordinary 4th amendment rights) that our local law enforcement has to worry so much about the 4th amendment that if they look through an open window and see the dealer bagging his cocaine, without a warrant, the evidence is inadmissable. Talk about double standards.

"The left is currently way less ideological and monolithic than the right."

That's a 'my dad can beat up your dad' statement if ever I heard one.

If juries are a problem because they are so unpredictable, it may be because the laws are so wacky that any unpredictable result is contained within the laws, but I think it more realistic to say that the jurisprudence has made the capacity to understand what a jury will make of the laws is unpredictable.

This is certainly the case: modern laws are often overly complex and unintuitive in their proscription of conduct. We've also come to expect much greater precision from juries, an end towards which they were not traditionally oriented. But yes, in general, it's true that crazy innovations in the law make possible crazy results from juries. No disputing that, although it's probably because a bad law requires a bad outcome and we sometimes are spared that outcome by discretion than that the law lends itself to unpredictability.

The rules of evidence are, basically, opposed to reason and conflict with reality, so it is not surprising that juries' actions based on them are impossible to predict. Same with testimony.

I am going to disagree with the criticism of the rules of evidence. (And at the risk of venturing into overly esoteric internecine legal debates, I'm not sure the exclusionary rule is actually a rule of evidence.) The jury is a longstanding, important, and very powerful tool. It is one of the Common Law's best traditions. And it's interesting to note that originally, there was no evidence offered in trials: counsel argued outside the presence of the jury, one specific jury question was formulated based on those arguments, and that question was then posed to the jury, which was meant to be self-informing (on the philosophy that whatever they're saying in the village is probably true). It's hard to tell how well that worked. If you read the old reports you can certainly see that it made litigation highly susceptible to skilled gamesmanship by counsel. But it tells us a thing or two about the rules of evidence that came later: the jury doesn't come into the box as a blank slate. Rather, its members bring beliefs, preconceptions, and common knowledge, much of which would interfere with the rendition of a verdict based solely on the presented evidence.

For instance, common perception suggests that past conduct is predictive of future conduct. But it's not logically probative of a defendant's conduct at any given point: so to protect defendants from the common perception, evidence of their other acts is generally excluded. Likewise, some evidence rules reflect balanced judgments about trustworthiness, like hearsay. Hearsay might be perfectly reliable, but there's not any good way to tell in any given case. So it all gets excluded, since the system needs to be consistent. Rules directed at excluding unreliable evidence and directing the deliberations of the jury are reasonable, and eminently so.

Of course, I don't think the exclusionary rule is such a rule, and the fix you suggest wouldn't work: one, because illegally seized evidence, as Lydia, observes, isn't less reliable; two, because there is no mechanism for gauging the degree of credence to be lent to a piece of evidence. A jury may believe or not believe a piece of evidence (there is some debate as to whether they may disregard certain forms of evidence, but that aside); they can't "halfway disbelieve" it. So, while a judge could theoretically instruct a jury, "You have seen evidence and heard testimony that cocaine was found in Mr. Smith's apartment. I am going to tell you that this cocaine was found, if at all, in the course of an illegal search. Accordingly, you are not compelled to believe Officer Jones' testimony about it being in Mr. Smith's apartment, or that it was in Mr. Smith's apartment at all," I doubt that would do defendants much good. Of course, there are other ways to discourage illegal police activity, and the exclusionary rule might not be the most socially beneficial option.

Al, I am happy to report that I did not have to read the Supreme Court's judgment that there are inherent differences between men and women to know that there are inherent differences between men and women. For some strange reason, I am able to quite easily tell the difference between my mother and father without the assistance of the federal judiciary. Will wonders never cease?

For instance, common perception suggests that past conduct is predictive of future conduct. But it's not logically probative of a defendant's conduct at any given point: so to protect defendants from the common perception, evidence of their other acts is generally excluded.

Well, yes, it is excluded. But is it well excluded? A person who has a bona fide, and testimonially proven, habit, is likely to act in ways that comport with that habit much of the time. The fact that they may depart from it at any given moment because of free will means that the mere fact of the habit does not prove anything about whether they acted consistently with that habit this particular time, but things that do not prove on their own may add weight to a chain of probability that, in the end, may preclude reasonable doubt. You cannot construct a general principle of truth, and evidence toward truth, that logically precludes the possibility that a pre-existing habit may provide evidence about one's actions. It may be that it usually leaves so much room for doubt as to be of only very, very minimal use in doing so: that's more than 0. Let the jury decide.

Likewise, some evidence rules reflect balanced judgments about trustworthiness, like hearsay. Hearsay might be perfectly reliable, but there's not any good way to tell in any given case.

No, you mean that without examining lots of particulars about character, ability to observe and remember spoken words, and so on, the reliability cannot be judged well. So, based on that, the judge (and the system) says "you the jury don't get to make the choice as to whether you have any way of determining the reliability of this hearsay, I decide for you that you don't, and I decide it based not on a universal principle of how hearsay relates to reality, but on a statistical measure that hearsay is not a very reliable indicator of reality, it is unreliable more of the time than we care to allow it be the basis of action, so we assume is is unreliable here." In other words, the judge takes it upon himself to shield the jury from a potential avenue of evidence for the truth because of a pre-conceived and unprovable theory about the statistically likely relationship between that hearsay evidence and the truth. BUT THAT'S EXACTLY what we use juries for: weighing things that are not cut-and-dried, manifest realities present before us, and are instead needing an estimation of reasonableness where the answer could go either way.

Of course, there are other ways to discourage illegal police activity, and the exclusionary rule might not be the most socially beneficial option.

A rule that prevents evidence from getting to the jury because you don't know before-hand the probative value of that evidence is, ipso facto, a rule that in principle reduces the jury's capacity to receive all the facts at hand, and therefore by definition reduces the jury's capacity to winnow out the truth. I would suggest that using the jury to provide the negative feedback mechanism for discouraging illegal police activity is, essentially, using an outside and alien party to the illegal act, sacrifices truth for the "discouraging" that is normally done in other ways in other contexts, and is not likely to be the best method for social benefits.

"Al, I am happy to report that I did not have to read the Supreme Court's judgment that there are inherent differences between men and women to know that there are inherent differences between men and women. For some strange reason, I am able to quite easily tell the difference between my mother and father without the assistance of the federal judiciary. Will wonders never cease?"

And will reading comprehension ever begin? I was clearly replying to claims that the VMI opinion could be used to justify the state preventing a private institution from changing its mind about having co-ed dorms. One may think the decision was rightly reasoned or not and one may agree or disagree with the ruling (Rehnquist concurred) but one cannot easily get from that decision to that assertion.

Why can't you just accept that we can come to the same conclusion for different reasons?

When conservatives get uptight about prisoners getting a new trial because of DNA evidence, they often resort to the argument that the defendant had his day in court and was given due process. That weak argument isn't worth a hill of beans if conservatives are going to also diminish due process to the point that there is effectively a presumption of guilt.
http://www.theagitator.com/2011/04/04/scalia-and-the-innocent/

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