The Volokh Conspiracy
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Judge David Stras Was Protested At Duke Law School
A student interrupted Judge Stras in the middle of his presentation about his grandparents' experience in the Holocaust.
Today, Judge David Stras of the Eighth Circuit spoke at Duke Law School. The event was co-sponsored by the Federalist Society and the Clerkship Office. Stras's topic was "What My Grandparents' Experiences in the Holocaust Taught Me about the First Amendment." In July, I appeared with Stras at an event about the same topic.
During the middle of Stras's presentation, two dozen students stood up. One student read from prepared remarks. A Duke 3L posted a video to Twitter:
https://twitter.com/LissaJoStewart/status/1443659389668405252
The student began:
Your honor I would like to speak for a group of students who are here to listen and defend their views as you are encouraging us to do.
Judge Stras said, "Please do."
The student continued
I am a queer Jewish law student. Lawyers, politicians, and others who advocate for LGBT anti-discrimination laws are not comparable to Nazis. Suggesting otherwise as you have is abhorrent and although we came to listen to you speak we are not going to sit here and listen to blatant homophobia. Thank you for coming today.
Judge Stras said, "Thank you for speaking out." Judge Stras handled this situation with grace.
The Duke OutLaw chapter elaborated on their views in a tweet.
And the students handed out a document about Judge Stras.
I do not yet have all the facts. I will opine further as I learn more.
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This sounds that it was handled correctly. The speaker was allowed to speak. The speaker allowed a dissenting statement to be read. The speaker had the opportunity to respond, but chose not to as is his right.
Indeed. This seems to me to be a pretty good example of the way the First Amendment is supposed to work.
That said, I'm curious about what was said. I'm not familiar with Judge Stras. Has he actually said that "Lawyers, politicians, and others who advocate for LGBT anti-discrimination laws are... comparable to Nazis"? If so, that's deeply unserious and calls into question his judgment and suitability for the bench. If not, it's a deeply unserious, bad faith objection and calls into question the fitness for the bar of the students who implied that he did.
No, basically he said that the Nazis taught us how critically important freedom of speech is, and standing up for our rights. And the alphabet soup anti-discrimination laws, no matter how well intended they might be, are in fact violating those rights, and we shouldn't stand for it even if you think the cause is just.
"Error has no rights" is an idea that's starting to take root in American law, and the consequences of not putting a halt to that could be pretty dire down the road.
It is quite a reach to suggest that the Nazis taught us that anti-discrimination laws are bad.
Is it a reach to suggest they taught us that our liberties are important, and should be defended?
The problem is, your anti-discrimination laws deprive people of their freedom.
The best part of right-wingers' bigotry -- racism, misogyny, gay-bashing, xenophobia, etc. -- is that it will drag the rest of their political preferences -- abortion absolutism, gun nuttery, etc. -- into cultural irrelevance, too.
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Waste of brain cells warning
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For any one reading the above, Kookland is performing his weird trick of "footnoting" his assertions with a music video. I didn't follow it, but hovering over it shows "youtube". So there's no need to click on it.
And then there's his tiresomely triumphal crystal ball.
That exhausts his bag of tricks. No use in saying "Roll over, boy!" That's beyond his abilities.
The interruption was handled with great wussiness. If Stras had a spine he would have told the heckler to sit down and wait for the Q&A.
Homo-fascist object be compared to their other fascist brethren?
Inconvenient.
The "More Information" sheet is pretty appalling, considering it is coming from law students. The entirety of their argument is "we don't like his conclusions" but make no comment on his legal reasoning.
I really hope our future lawyers would be more interested in proper interpretation of the law rather than an ends justify the means approach.
Yeah that was my first reaction too. A bunch of law students who can't fairly address the core of what they are criticizing are not going to do well in practice. Politics probably, but not legal practice.
Sotomayor is on the Supreme Court. So there's that.
"2) In 2012, Judge Stras joined an opinion allowing an anti-gay marriage bill to appear on the ballot despite it's misleading title."
The cited article said about it, "Additionally, as a Minnesota Supreme Court justice, Stras in 2012 joined an opinion allowing an anti-gay marriage amendment to come intact to the ballot with a title obscuring its purpose and effect. "
The title was, ""Recognition of Marriage Solely Between One Man and One Woman.""
The amendment would have added the following text to the Wisconsin state constitution: "Sec. 13. Only a union of one man and one woman shall be valid or recognized as a marriage in Minnesota."
Even after reading the cited article, I'm at a total loss for what was supposed to be misleading about the title.
Something is very wrong with this statement, though I'm not quite sure what.
I'm pretty sure what it is. 😉
Even LGBT Wisconsinites would take up arms to prevent a hostile regional power like Minnesota from amending the Wisconsin constitution like that.
And Minnesota couples of any gender wouldn’t care what the Wisconsin constitution said about their marriage.
I’m not sure how it would be resolved though, the Supreme Court would probably deny cert regardless of the outcome in the lower courts.
Sure I screwed that one up, got interrupted in drafting the post. It's embarrassing.
That said, what was misleading about the amendment? Nothing, they just didn't like it.
This is a lousy description of what happened.
1) It wasn't a "bill"; it was a proposed constitutional amendment. A nitpick, maybe, but law students should know the difference.
2) The anti-gay marriage amendment was only one of two amendments at issue in the case. The other was a Voter ID one.
3) There was no question about whether it would "appear on the ballot." That wasn't the issue in the case.
4) Nobody contended it was "misleading." That wasn't the issue in the case either.
5) The issue was, rather, whether the 1919 law that directed the Minnesota Secretary of State to propose an "appropriate" title gave him authority to ignore the title designated by the legislature when it passed laws in 2011 to put these ballot questions on the ballot.
It is common and unsurprising for non-lawyers to ignore actual legal questions at issue in a case and focus on the effects of the case. It is therefore not really surprising that the Washington Blade got this wrong. It is rather disappointing that law students do not understand, or choose to ignore, that distinction, however.
I was just about to write a comment along these lines above. The case, Limmer v. Ritchie, 819 N.W.2d 622 (Minn. 2012) concerned whether the Secretary of State could give a ballot question a different title than the one selected by the legislature. The amendment itself was going to be put to a vote either way (and it was ultimately defeated).
That law students, at what is supposed to be a top-10 ranked law school, failed to grasp this does not speak well for themselves or their legal education.
The students seem to be assured they operate with impunity. "Right-wing" students of course would suffer professionally if they interrupted a liberal judge in this way.
There is nothing worse than a hypothetical double standard!
I can think of many, many things worse than inferring the probable result in a hypothetical situation from lived experience. The reliability of practically everything you write, including this assertion, for example.
As befits students at one of our top law schools, their pamphlet cites the most authoritative sources, like the Washington Blade, Slate, and the Center for American Progress.
Q: How are "laws that protect LGBTQ+ people" like Nazi oppression?
I don't know what Judge Stras said about this, but here's what I think. I think about those Nazi stormtroopers who stood outside Jewish-owned stores, preventing people from going in. What was their problem? They didn't like Jews, didn't want to patronize their establishments, and felt they had the right to prevent others from doing so. I also think about those "lawyers, politicians, and others who advocate for LGBT anti-discrimination laws." These people really like gays, and feel that everyone should as well. Moreover, they feel they have the right to force others to associate with gays. Call me crazy, but I see a parallel.
Yes. The Nazis didn't think other people were entitled to make their own choices, and neither do the alphabet soup people. Neither were into allowing people to opt out.
Granted, the alphabet soup people aren't putting people in camps, yet. But they're fine with ruining the lives of people who just want to be left alone.
I would like to see what the judge actually had to say on the topic, not just what his opponents had to say. What were those parallels he drew?
Having followed up one of their stated complaints, and seen how flimsy it was, I don't think we can actually take their word for anything. Is there a transcript or recording?
I'm listening to an earlier talk he gave on this topic, to see if I can get some idea.
Ah. Public accommodations laws vs freedom of speech.
The Nazis only permitted speech they agreed with, it was illegal to disagree with them.
The alphabet soup people are violating that right by using public accommodations laws to compel speech, in the case of people who provide wedding services.
Brett, seriously, not letting people make choices makes one comparable to a Nazi?
There are lots and lots of choices I'm not allowed to make -- running red lights, impregnating 12 year olds, torturing puppies, voting in the name of my dead grandmother. And I don't think people enforcing those rules are comparable to Nazis.
Instead of drawing with a broad brush, maybe you could try taking a case by case approach? As in some choices should be personal and others should not?
And by the way, just as soon as any gay activist anywhere says the Colorado baker should be sent to a gas chamber, get back to us.
Yes, it absolutely does, if you get over the idea that "comparable to" means "substantially the same", and realize it just means "can be compared to".
Are you really going to suggest that we're not allowed to object to people doing some of the same things the Nazis did, until they are doing all the same things? You can't object at the start, you have to wait until it gets really bad, and you've had dissenting speech suppressed for years, and your ability to organize against it has been compromised?
The alphabet soup people aren't pushing laws banning rape and torture. They're pushing laws banning refusing to bake somebody a cake. Let that sink in.
If you don't find that objectionable, you've already internalized the devaluing of liberty public accommodation laws represent.
As slippery slope arguments go, this one is particularly silly. Mussolini made the trains run on time, but surely you're not going to object to making the trains run on time just because Mussolini did it? And if you're going to object to telling people what to do, perhaps you could start with the Catholic church, which was just fine with using torture and death to control people's speech and behavior up until not that long ago. Obviously we can't allow the church because it might lead to the Inquisition. Brett, even for you this is nonsense on stilts.
It's not a slippery slope argument, because the very first step in it is objectionable, not just the ending point.
So anyone who tells anyone they can't do something is on the first step to becoming a Nazi?
If they're telling them they can't do something they've got a right to do? Sure.
LOL - do you read your posts?
IPLawyer, you have to understand that Brett lives in a world of only two colors: The starkest of black, and the starkest of white. Nuance does not exist. Middle ground does not exist. We've either got complete freedom or we're heading toward Auschwitz. If it's not Christmas it must be the Fourth of July since there couldn't possibly be any other choices.
The "alphabet soup" people, which is probably 90%+ of the country, favor laws that prohibit the ability of certain businesses to discriminate on the basis of certain classifications. Oddly, many, like you, who claim to oppose these laws are first in line to whine about how colleges are discriminating against white men.
I am curious: Do you think the Fourteenth Amendment violates the First Amendment?
No, of course the 14th amendment doesn't violate the 1st amendment, and if it did, it would take precedence, having been ratified later.
But the 14th amendment says, "no state shall", "nor shall any state"; It prohibits discrimination by states, not individuals. No private citizen can violate the 14th amendment.
What I think is that some of the statutes adopted in the name of fighting discrimination violate assorted constitutional rights, including, ironically, the 13th amendment.
Alphabet soup people, by which I mean people who refer to themselves by an ever changing acronym conspicuously lacking in vowels, (LGBTQUERTY is an alternative...) are hardly 90% of the country. If you threw an "S" for straight into the soup, you'd have 100% country, but without it you're in the lower single digits.
Most people don’t run businesses. They see public accommodation laws as consumer protection.
Indeed, most people strongly support forcing businesses to do just about anything that they could imagine that might benefit themselves. And they could care less about the effects on the businesses, its employees or owners.
You:
None, really, beyond the title of the speech: "WHAT MY GRANDPARENTS’ EXPERIENCES IN THE HOLOCAUST TAUGHT ME ABOUT THE FIRST AMENDMENT".
https://poseidon01.ssrn.com/delivery.php?ID=692102005081068106103008098012027077118020020019044006105026120064071099093029066105121035037038023004045071087093008071069070025085014061016078104017024013086068070050022001075003100120105110096017073004003000074020100110008081086009076089067068022&EXT=pdf&INDEX=TRUE
Oh good grief! The Nazis actively discriminated against businesses and people based on religion and race. In fact, they killed a lot of people on that basis. That is not the same as passing laws that prevent businesses from discriminating on the basis of religion and race.
"We're depriving people of their liberty for GOOD reasons! That makes it totally different!"
Yes, it does make it totally different. There are thousands of laws that deprive people of their liberty.
No, it does NOT make it totally different! If the Nazis had never violated anyone's rights, they'd have been no threat to anyone. Literally, it was the rights violations that were the problem, not the reasons behind them, and if somebody violates your rights, why do you care what their excuse is? You just care that you're being oppressed!
Indeed, it is actually WORSE to have your rights violated by somebody who is operating in what they think a good cause, because the chances of your persuading them they're doing wrong are pretty much negligible, and their consciences will urge them on, rather than restrain them.
And if we had no government at all it would never violate anyone's rights, so maybe what you're advocating here is total anarchy.
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Absurd strawman argument alert.
Obviously what he's actually arguing is that government ought not unnecessarily violate anyone's liberty.
What you wrote is the equivalent of: "If society were wiped out with hydrogen bombs then there would be no government to violate anyone’s rights, so maybe what you’re advocating here is nuclear war."
I understand the libertarian objection to antidiscrimination laws. The Nazis are just a very odd example to cite to support that. They were the worst discriminators in history. It is bizarre to think that the real problem with them was that they didn't support free speech or liberty generally.
It is also worth nothing that many (probably most) Americans think that people have the right not be discriminated against on the basis of race, sex, religion, etc., in employment or lodging or dining, etc. You think that Facebook should be able to hire all white, male employees legally; or that Starbucks could exclude Jews from its stores legally; or that Marriott could exclude Republicans or Blacks or Christians from its hotels legally. That is a very fringe view. Most people do not believe. And most people think that, in the above example, Facebook, Starbucks, and Marriott would be someone's rights.
would be *violating* someone's rights.
Of course, your view goes even further. You not only think that, in my above examples, those companies should be able to so discriminate, but that various antidiscrimination laws, passed through our democratic process, somehow violate these companies' "rights" to so discriminate.
That's precisely right.
As I have pointed out, in the case of single proprietorships, trivially, the product is the proprietor's labor; The businessman is the employee, and the customer is the employer.
So, when does the employee get to decide who they'll work for, and when is it the employer who gets to pick the employee? Or do they switch places depending on whether it's a month with an "R" in it?
The only consistent stances are not permitting discrimination at all, in which case you're going to be pretty busy tracking down laborers who refuse to look for jobs with employers they don't like, or just accepting that employment needs to be voluntary on BOTH ends.
Employment is voluntary on both ends. It is just that some employers can't discriminate on the basis of certain protected categories. It's really not that limiting.
Employment is voluntary on both ends, except when it isn't?
And in the case we're discussing, it's the employee being prohibited from refusing to take a job.
I assume you're talking about the photography case, which wasn't what we were discussing above? In any event, a photographer's customers are not her employer. That case has nothing to do with employment; it is a public accommodation case.
The photographer would of course be the employee of the would-be client. And BB's objection to violations of the photographer's right to freedom of choice as to who he allows to employ him don't depend on whether laws violating that right are called "employment law" or "public accommodations law". Nor is the violation any less if it comes about through "our democratic process". It's not generally the Libertarian view that the tyranny of the majority can eradicates natural rights.
I think there may be some need to require truth in advertising to deal with reliance problems, but that's me. Perhaps BB's libertarianism is purer than mine. Yours is, at best, impoverished, but I have no reason to think that you are so deluded as to claim any just b/c you are posting here.
"They were the worst discriminators in history. It is bizarre to think that the real problem with them was that they didn’t support free speech or liberty generally."
Seriously, what's odd about it? If the Nazis had never violated anybody's rights, who would care about their ideology? No war, no terror, no death camps. You could literally have ignored them!
Are you telling me that the Nazis would have been OK if they'd been equal opportunity genocides? Of course the objectionable thing about them was the rights violations!
No, what I'm telling you is that the fact that someone is being made to do something he doesn't want to do, standing alone, tells us little. Some coercion is legitimate; other coercion isn't. You live in a world of false alternatives in which if it isn't Christmas, then it must be the Fourth of July, because there couldn't possibly be any other options.
And you live in a world where the end justifies the means, where anything goes as long as the cause is good enough.
That depends on what are the ends and what are the means. It's case by case. And I'll let you into a secret: So do you.
I'll let YOU in on a secret: You're no different from Singer.
Well, I share many similarities with SInger: we are both white, male, educated, wear clothes, live in houses and enjoy conversations about philosophy.
But if you're implying that anyone who thinks coercion is ever justified just signed up for infanticide, you're nuts.
Nobody is talking about anything standing alone. We're talking about whether a photographer who wants his work to celebrate real marriages should be coerced into providing the same service for "weddings" that repulse him.
My answer (true to my libertarian impulse) is that that is nobody's business but his own.
Genocide is by definition not equal opportunity.
I bet I could ask a thousand people what was objectionable about the Nazis, and maybe one would say "rights violations."
Then 999 of them would be utter morons, except that almost everything they mentioned would BE a rights violation.
Umm... don't get carried away. If one is asked what was objectionable about the Nazi's it is not moronic to not reply "rights violations". It would be moronic to say that the Nazis didn't violate others rights, but that's a different claim.
A thought experiment: a videographer is compelled to make a video of a same sex wedding, he records the entire event in one cut, with the camera pointed at his shoes.
Legitimate artistic expression or unlawful discrimination?
Very good point. To add insult to injury, he could insist on getting paid the full amount for the video of his shoes.
I suspect if the videographer got sued he would probably lose. Though I've never understood why someone would want to hire a videographer to record one of the most important days of their lives who has made it clear he doesn't want to be there.
"What is best in life? To crush your enemies, to see them driven before you, and to hear the lamentations of their women!"
There's some of that, but what you're mostly looking at here are people who had "file a lawsuit to pay for the honeymoon" as part of their wedding plans. Literally, in the case of Elaine Photography, the plaintiff went around checking out photographers, and didn't settle on Elaine's until they had confirmed she wasn't willing to take the job.
They weren't shopping for photos, they were shopping for a lawsuit.
The thing is, though, that that tactic only worked (assuming you're right on the facts) because Elaine's discriminated. It's really the same argument with speeding traps: Yes, the police abuse them, but they only work because people really are speeding.
Yes, she actually discriminated. She had a right to discriminate. The product she was selling was her own labor, why is she not entitled to decide who she will labor for?
Literally, you're arguing for involuntary servitude. The only thing remaining is to convince you that picking cotton is a good cause!
We routinely accept that people are allowed to discriminate, in all sorts of areas. If the people who sued Elaine had decided that they'd only hire gay photographers, there would have been no legal issue with that at all!
So, only one side of the transaction has a choice in the matter?
Morally, an employer is no different from an employee, both should be free, and in a case like Elaine photography, the customer is literally the employer, and the business person the employee. And suddenly the employee has no choice of who they're hired by?
It's not a morally consistent stance. Not remotely.
Consistency only matters if the employer and the employee are similarly situated. They're not. This particular case is probably an exception, but in general, there's a power disparity between the two sides. Traditionally, that disparity was wielded to the disadvantage of whole groups, and keeping them out of the economy is good for neither them nor the economy. So the state stepped in and said that Elaine's prejudices don't get to lock people out of the economy.
As I said, this case is probably an exception, but that's the basis for anti-discrimination laws in general. It's to level the playing field. And while I get that you don't find that a sufficient reason, most of the rest of the country disagrees with you.
" So the state stepped in and said that Elaine’s prejudices don’t get to lock people out of the economy."
The plaintiff in the Elaine case literally shopped around for somebody who'd refuse to take the job, and only settled on Elaine once they were sure she'd say no. The idea that the would be locked out of the economy if Elaine wasn't forced to involuntarily serve them is risible.
I already said that this case was probably an exception to the general principle, but that doesn't mean it's a bad principle.
What we're looking at here is a classic example of "hard cases make bad law"; Public accommodations laws were originally crafted to deal with situations where the consequences of a particular business refusing to deal with you could be catastrophic. You could end up sleeping under a bridge because the only hotel in town wouldn't take you in, starving because nobody would sell you food.
So the bad law was made, and is now being applied to cases where somebody is shopping for a luxury good, and goes out of their way to find a source that doesn't want to deal with them, just to be contrary.
The original compromise of principle, instead of being limited to the extreme facts that originally were supposed to justify it, spread out and destroyed the principle it was an exception to. Liberty dies on the altar of non-discrimination, sacrificed so that somebody can enjoy the delicious taste of the tears of a baker being reduced to poverty.
You have that exactly backwards. You're reaching to find hard cases (or extreme facts) to suggest that antidiscrimination laws are bad. What justified antidiscrimination laws was widespread discrimination in employment and public accommodations on the basis of race, sex, and religion.
No one "want[s] to hire a videographer to record one of the most important days of their lives who has made it clear he doesn’t want to be there." They just want to sue him.
Unless he's some Andy Warhol figure and it's baked in that he's delivering concept art his client would have a winning case that he didn't provide the service contracted for.
I see your point, but it is really disgusting when people wave around the corpses of their tortured parents, hoping to hit a liberal with them.
Of course, I'm sure you are fully consistent and also use the inflammatory term "waving around the corpses" of their family members when black activists protest about family members killed by police, or their ancestors harmed by slavery, Jim Crow, etc.
If my black parent was lynched, I can cite that in decrying racism against black people in other contexts.
Straus is swinging around his dead parents' corpses to hit whoever he wants to hit. Forcing people to accept LBGT =/= antisemitism.
So in other words, you are not consistent.
And the only comparison he made with antisemitism was that the experience of the Nazis taught us how important free speech is.
If you're pretending you've read or seen his speech then you nose is growing.
Damn this lousy Reason commenting software.
Despite appearances, that was directed of course at cc.
I do not yet have all the facts. I will opine further as I learn more.
Is that a promise or a threat?
It's bizarre. What "facts" does he imagine will justify not waiting for the Q&A?
Did you notice that nothing in their handout addresses their core contention that Stras draws parallels between and compares Nazis to people who oppose anti-discrimination laws?
"their core contention that Stras draws parallels between and compares Nazis to people who oppose anti-discrimination laws"
Their core contention is literally the exact opposite of that, that he drew parallels between Nazis and people who enforce anti-discrimination laws.
So this is sorta the Liberal version of "We won't take Covid vaccine because somewhere in it's development, material that might have been cloned from the tissue of an aborted fetus might have been used, and we oppose abortion".
No. There's no "might" about the connection between abortion extracts and some COVID "vaccine" research. Boycotting anything downstream of abortions can be principled even if you don't care to.
And the progs are just whining without any real justification for their complaint, in a total a**hole way.
Does changing the issue from anti-LGBTQ+ anti-discrimination laws to anti-race based discrimination laws or anti-religion based discrimination laws have any effect on the Nazi comparison? Are laws that prevent discrimination against people based on their race also comparable to Nazism?
You are either free to serve / work for / associate with who you like, or you aren't. So no, no effect.
So, in your mind, Ed, stopping segregation and Jim Crow laws was a step toward Nazism, rather than progress toward equality? You believe that any business owner should be allowed to refuse to serve blacks simply because they are black, that restaurants should be able to refuse to serve Muslims simply because they are Muslim, and any manager should be allowed to refuse to hire a woman simply because they are a woman.
Thanks for your honesty. Not many people are willing to openly support Christian, white, male supremacy anymore.
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Absurd strawman argument alert
Segregation and Jim Crow laws were -restrictions- on freedom of association. Duh.
And it's not just white Christian males who ought to have freedom of association. Duh, squared.
"Comparable" is doing a lot of work there. Did you read the speech?
I've (fairly, I believe) quoted the relevant bit above.
But, yes, the violation of freedom of association is objectionable no matter what "protected class" you are doing it in the name of.
"But, yes, the violation of freedom of association is objectionable no matter what “protected class” you are doing it in the name of."
yI don't want to misunderstand, so I'll ask you: "Do You believe that any business owner should be allowed to refuse to serve blacks simply because they are black, that restaurants should be able to refuse to serve Muslims simply because they are Muslim, and any manager should be allowed to refuse to hire a woman simply because they are a woman."
Based solely on the complaints in the The Duke OutLaw chapter’s document about Judge David Stras, he sounds like a fine jurist.
I am quite happy that he’ll sit on the federal bench for the rest of his life.
What if there was a cure for faggots? Would it be within the police powers of the state to prescribe it? Fluoride in water is legal, why not faggot medicine. Face it, the jews push the trans surgery. The first jewish trans institute was destroyed by Christians, so what, majority rules. No religion promotes queers, other than jews, but only for the goy. See the reality of the queer game, all a jewish ploy. Enough already.
troll