Wednesday, November 27, 2019

We Need to Be Done Being Cool with Homophobia and Transphobia

This shouldn't be a controversial statement, and yet it is. As a society, we need to actively “cancel” blithely accepting homophobia and transphobia as if these are socially acceptable ways to treat other people; people who are just trying to live their lives and partake in the equal benefits of secular society in a country that separates religion and government. 

As Slate reported yesterday, a newly-filed lawsuit against the State of Alaska has exposed what is--apparently--an institutionalized practice of denying military spouses of same-sex couples their PFD checks. 

What Attorney General Kevin Clarkson initially called a "false lawsuit" (whatever TF that means) and a "non-issue" in a since-deleted tweet appears not to be the outdated and good-faith "clerical error" it was first made out to be. 

To the contrary, sworn testimony and whistle-blowing state employees in the administration allege a current and intentional practice of relying on void, unconstitutional laws as the basis for these denials.

Discovery will bear out the full extent and veracity of these allegations. I defended the State from innumerable constitutional claims under five administrations and 12 plus years at the Department of Law, and I often felt that not all facts were fully known, so again, we will see what discovery unearths. 

But it doesn't look good.

I long ago lost faith in this administration's ability and/or willingness to fulfill their duty to defend and uphold the constitution. After all, the very first thing they did upon taking office a year ago was to demand unconstitutional loyalty pledges of over a thousand state employees, and promptly fired those who refused to take them or whose personal political beliefs did not align with their agenda. 

Now it appears this administration is undermining constitutionally-guaranteed rights of marriage equality, and this should not be surprising. AG Clarkson has made a career and a name for himself using "religious freedom" as a cover to discriminate against LGBTQ+ people and the courts to deprive them of the equal benefits of society.

Apparently, the legislature was fine with this when it confirmed him. Would they have been as sanguine had he been doing this openly to Black people? Or Jews? I'd like to think not, but who knows? Religion, after all, was used to justify slavery, segregation, and the murder of six million of my own ancestors.

But I digress, because my point is this: we as a society need to call this out for what it is: wrong. It is just plain wrong. It is wrong to use your law degree and privilege to make other peoples' lives hell when they didn't do shit to deserve it other than exist. 

Imagine being so preoccupied with other people's sex lives and gender expression that you make your life's work a campaign to deprive them of basic rights like marriage and housing. I'm sorry, but if you are a self-identifying cis-gendered man who spends this much time thinking about what other people do with their genitals, you belong in therapy, not public office.

What the State is alleged to have done here is shameful. That it took a lawsuit, national press coverage, and borderline defamatory statements by the homophobic Attorney General against a lesbian lawyer to expose it is even more shameful. 

Not to mention the fact that some of the best lawyers and administrators in the Department of Law are themselves LGBTQ, so I guess Kevin Clarkson is perfectly fine availing himself of their labor (when he's not busy paying DC law firms $600 an hour unsuccessfully trying to bust unions in the name of the First Amendment).

Lots of people are afraid to speak out against this kind of bullshit, and understandably so. The risks of doing so are high. It puts peoples' lives and livelihoods in jeopardy, something I learned the hard way

But LGBTQ lives are at greater risk because people like Kevin Clarkson insist on leveraging their power, privilege and education to make other people miserable and unsafe, when they could just as easily seek private treatment to deal with their own hangups and prejudices. 

I hear state health insurance is pretty good.

Saturday, November 9, 2019

The Attorney General’s Assault on Alaska Supreme Court Caselaw Imperils Alaskans

As Anchorage Daily News reporter James Brooks reported last week, a string of defeats suffered by Governor Dunleavy in prominent court cases this year has exposed the limits of his administration's ability to push their agenda through the court system--the last bulwark and a major check and balance against government overreach.

The PFD and oil taxes are kitchen table talk for most Alaskans, but more than anything else, the judiciary--and its interpretation of the Alaska Constitution--is at the heart of the ongoing battle to save American constitutional democracy, both here and at the national level. It's a form of constitutional democracy that, for the most part and ideally, protects and prioritizes individual rights and liberties above corporate interests. 

To understand what is happening, you have to start with Alaska's judicial selection process. The Alaska Court System's website explains:
Alaska’s judges are selected by what is called the Judicial Merit Selection System. The authors of Alaska’s Constitution believed that it was important to have judges who were honest, fair, impartial, intelligent, experienced in applying the law, committed to following the rule of law and serving the interests of justice. Likewise, the authors believed that traditional partisan politics, with its influence of money, political patronage, deal-making and favoritism, posed too great a threat and impediment to achieving the desired goal of having a judiciary composed of such fair and impartial judges. That’s why the authors of the constitution decided that Alaska’s judges should be chosen by the Judicial Merit Selection System.
This system works through a rigorous vetting process. Attorneys who apply to be judges are rated by their colleagues and interviewed by the Alaska Judicial Council. The Council then sends two or more names to the Governor for appointment to the bench, and the Governor chooses from those names. Judges then stand for retention at general elections according to a set schedule.

Governor Dunleavy ran into trouble this year when he hijacked this process by illegally insisting that the Council provide him with different names. This unconstitutional "negotiation" delayed the appointment of a Palmer Superior Court judge and is now a stated legal ground for recalling the governor--one that Dunleavy's appointed Attorney General, Kevin Clarkson, has deemed legally insufficient.

We'll see about that. 

As Attorney General Clarkson himself said, the Alaska Supreme Court will have the final say about this and other positions he has taken, and that is the point.

The Alaska Supreme Court interprets the Alaska Constitution and those opinions become law; law that trial courts are required to follow, and that future justices of the Alaska Supreme Court must generally follow as well. Every government lawyer is accustomed to making arguments for the State that are perhaps losing arguments, or that they disagree with personally. But Attorney General Clarkson has gone a step further by forcing career attorneys at the Department of Law to—at a minimum—embarrass themselves in court by taking positions clearly at odds with judicial precedent.

Why would he do this? 

The answer is bigger than Alaska, although we are a rich laboratory for these constitutional experiments. This is part of a national trend and tactic on the far right to discredit the judicial branch by forcing clearly losing cases to the courts. That way, when they lose, proponents of these positions can blame an "activist judiciary" for following precedent on a document that, for his part, Governor Dunleavy wants to amend to favor corporations over individuals. (Fortunately, amending the constitution is very hard to do).

In short, decades of Alaska Supreme Court precedent have given Alaskans liberty, privacy, education, resource, and property interests unmatched elsewhere in the nation and stronger than those afforded at the federal level. This precedent has helped cement Alaska's reputation as a bastion of rugged individualism, which helps individuals, but arguably harms corporations. Neutering the constitution and hobbling and stacking the judiciary is the Holy Grail of this mode of governing.

It remains to be seen which of Attorney General Clarkson's positions will be overturned or upheld by the Alaska Supreme Court, but if he loses, look for this administration to blame the referees, and loudly. 

That reaction is a key performative move in a long game, the ultimate goal of which is a showdown at the ballot box to unseat judges for doing their jobs and/or open the door to a constitutional convention designed to unravel civil liberties.

It is an axiom of creeping autocracy that "your institutions will not save you." Unfortunately, the Dunleavy administration has put Alaskans in the perilous position of waiting for our judiciary to do exactly that.

Friday, November 1, 2019

Dear Haters: Please Refer to This Rap from Now On

With apologies to Eminem & 8 Mile ...

Now, everybody from the 907
Put your motherfucking hands in the air to heaven
Everybody from the 907
Put your motherfucking hands up! Look, look …
Now, while they shit-post
Notice these motherfuckers hide inside they keyboards like they fuckin’ ghosts 

BOO! Oh wut. Did I scare you? 
I got you cryin' to yo mama like boo hoo hoo
Facebook got you gassed up like you the bomb?
Now, who’s 6"9 and scared of a 5”2 mom?
One, two, three, and to the four
One tweet, two tweet, three tweet, four
Four tweet, three tweet, two tweet one
Come out your mom’s basement-- say that shit to my face, son!
You sorry ass trolls think you motherfuckin’ ballers
Sittin’ in your truck reading the Daily Caller

Getting high off your own supply
I know everything you got to say about me, now don't I?
I AM a bitch, I AM a Marxist cunt
I DO get on the internet and flex and stunt
I DID get fired by Dunleavy and I DO keep cursing and frowning
I DO get dragged by Suzanne Downing
I AM a commie leftist libtard with clinical depression
I DO have a million unhealthy obsessions
And no, I AIN’T legit from Alaska
I grew up in an apartment in the Bronx, dumb bastards
Don’t judge me or slide into my DMs, bro
I ain’t ever gonna fuck you, I ain't your 'ho

And I know something you don’t know
You’re all over my feeds taking shots for free
Why you motherfuckers so obsessed with me?
You’re scared to death, you’re scared to look
You know you ten times dumber than your own dog, go read a fucking book
You think I’m blind, that I can’t see?
You can’t even use an apostrophe
So don’t come square up to MY door
Until you can tell me your from you’re
You don’t wanna battle, you're too scared to even use your own name
Hold my earrings, bitch, I'm burning your shit down to the ground with white-hot flames
Using my REAL name
Cause two can play at THIS game
And I got better things to do in REAL life
Than argue with you motherfuckers online like you my fuckin' wife
Fuck a beat, I’ll go acapella
Fuck a tweet, fuck a MAGA, fuck a blog, fuck a lawyer
Fuck you School House Rock mouth-breathers and illegal employers
I’m an SJW I’ll say it proudly
And fuck this battle, I’m gonna win it someday, I’m outtie.
Now tell these people something they don’t know about me.