June 2, 2015

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AL SENATE VOTES TO END MARRIAGE LICENSES: The Alabama Senate has voted 22-3 to scrap the State’s issuance of all marriage licenses. The bill, SB 377, would transform marriage into a contract, rather than a license, and would not require a marriage ceremony to be valid.

The purpose? Presumably, by taking the State out of the business of issuing marriage “licenses,” marriage would just become another private contractual undertaking, and any Supreme Court ruling that, under the Due Process or Equal Protection Clauses, States must issue marriage “licenses” to same-sex couples would not bind the State of Alabama, which would no longer be in the marriage license business, as a technical, formal matter.

But this seems a bit silly, since SB 377 says, “Effective July 1, 2015, the only requirement to be married in this state shall be for parties who are otherwise legally authorized to be married to enter into a contract of marriage as provided herein.”  It then lists the required form of the contract. But the key question is who is “legally authorized to be married”?  Presumably, the State of Alabama would continue to specify this (and has, pursuant to a state constitutional amendment limiting marriage to one man, one woman). And also presumably, the Alabama Senate did not intend to authorize contractual marriage among multiple persons (polygamy) or among closely related individuals (incest).

Whatever the purpose, the measure now moves to the Alabama house for consideration.  Stay tuned.


Predictably, Talking Points Memo isn’t enthused. But really, limiting the pool to eligible voters and not counting illegals for purposes of redistricting isn’t really a challenge to the logic of Baker v. Carr, but rather an application of that logic. So casting this as an effort to undo one-man-one-vote is a bit shaky.

But given the way in which small urban enclaves exercise total control over such states as Illinois, California, and New York, perhaps the equal-protection analysis in Baker v. Carr needs to be tempered with the Republican Form Of Government considerations contained in the Guaranty Clause, which would recognize the right of different communities to have more of a voice in their own governance rather than being ruled from afar. Thus, the real critique here has to do with not trying to overturn Baker.

BRING BACK DDT: New Tactics for Battling Head Lice.

NOW SHIPPING: The second in John Birmingham’s new trilogy, Dave vs. The Monsters: Resistance. I read the first volume recently and quite enjoyed it. Birmingham has gone off in a Larry Correia sort of direction, and it works.

CULTURE OF CORRUPTION: WaPo: The inside story of how the Clintons built a $2 billion global empire.

THE AUTHOR IS NINA BURLEIGH, WHO FAMOUSLY OFFERED TO FELLATE BILL CLINTON IN GRATITUDE FOR HIS ABORTION STANCE: Deeply Confused Newsweek Story Compares Republicans to Timothy McVeigh. “When she isn’t getting the past wrong, Burleigh is being confused about the present. . . . Evidently Burleigh didn’t get the memo. Or else the memo just didn’t serve her purpose, which is to build toward a conclusion comparing McVeigh’s fertilizer bomb to peaceful politics.” When kneepads are your claim to fame, a firm grasp of the issues is unnecessary. And, as we saw with Arizona, Democrats are quick to resort to blood libel as a means of smearing their political opponents.

HEALTH: Alzheimer’s Origins Tied to Rise of Human Intelligence.

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I PITY THE FOOL: Naomi Shaeffer Riley is en fuego at the New York Post, penning an oped on Laura Kipnis’s sad, slow awakening to the progressive culture of which she is/was a part:

The charges against Kipnis were dropped over the weekend, but not before she submitted to what she referred to as her “Title IX Inquisition.”

A law firm hired by Northwestern to investigate at first even refused to reveal the nature of the accusations against her. Lawyers told her they wanted to ask her questions but she wasn’t entitled to have her own lawyer present.

Nor could she record the session, during which she was interrogated about her writing, her teaching and even tweets she’d sent.

It’s hard to work up too much sympathy for Kipnis, though. One wonders where she’s been for the past two decades when kangaroo courts were set up at institutions of higher education all over the country.

Has she been rushing to defend all the men convicted by campus courts of sexual assault with no lawyers present?

Kipnis learned (much to her surprise) that, as she wrote, “any Title IX charge that’s filed has to be investigated, which effectively empowers anyone on campus to individually decide, and expand, what Title IX covers. Anyone with a grudge, a political agenda, or a desire for attention can quite easily leverage the system.”

No kidding. And Title IX is only the tip of the iceberg. Anyone with a political agenda and an ax to grind can get professors reprimanded, students kicked off campus and commencement speakers disinvited.

Did self-described feminist Kipnis rush to the defense of Ayaan Hirsi Ali or Condoleezza Rice when they were told they couldn’t come to Brandeis and Rutgers? (In an essay for Slate, Kipnis referred to Condi as President George W. Bush’s “Stepford Wife.”)

Has she been defending Christina Hoff Sommers when the students at Georgetown and Oberlin tried to prevent her from giving a visiting lecture and then demanding “safe spaces” to be protected from her harsh words?

Of course she didn’t.

Do I feel sorry for Kipnis? Yes, I pity the fool, for not opening her eyes and seeing what little fascist enclaves universities have become thanks to progressive intolerance and lack of ideological “diversity.”  Other than that, as a court of equity would say, Kipnis has “dirty hands,” and her involvement in the progressive cabal diminishes her entitlement to relief.

JOE PAPPALARDO: How Russian and American Weapons Would Match Up in a New Cold War.

RACISM IN HIGHER EDUCATION: To get into elite colleges, some advised to ‘appear less Asian.’ “Some call it ‘the bamboo ceiling’ of racial quotas, telling stories of Asian-American students with perfect SAT scores and GPAs turned down by elite colleges who limit the number of Asians they will admit, effectively forcing them to face a higher bar for admissions than other racial groups, including whites.”

CAN YOU TEACH AN OLD DOG NEW TRICKS? Richard Epstein: An Economics Lesson For Bernie Sanders.

DEMOCRATS’ #WARONWOMEN: S.E. Cupp has an incisive oped about the Democrats’ objections to a GOP effort to increase over-the-counter (OTC) access to birth control:

If you’re one of the 10 million women in America who uses the pill, the prospect is nothing short of life-changing. Going to the doctor to refill the pill every month or even a couple times a year is annoying and time-consuming. And, according to many doctors, it’s unnecessary. The pill is safe to take without a prescription. . . .

But if Republican Sens. Cory Gardner of Colorado and Kelly Ayotte of New Hampshire, along with four other GOP senators, were expecting flowers from Planned Parenthood and others for their bill, the Allowing Greater Access to Safe and Effective Contraception Act, they should brace for disappointment. Suddenly, the idea doesn’t sound so great, and the former supporters aren’t mincing words.

Planned Parenthood president Cecile Richards said the bill is a “sham and an insult to women.”

Karen Middleton of NARAL Pro-Choice Colorado even got personal, saying, “Cory Gardner can’t be trusted when it comes to Colorado women and their health care.”

Beneath the fear-mongering lies the more likely reason for the change of heart on the left. The bill was simply introduced by the wrong party.

If Democrats cede this issue to Republicans, they lose a major chit in their “war on women” narrative. For years, pro-choice groups have been peddling the charge that Republicans are against access to birth control. But it’s utterly (and provably) false.

Indeed. Republican presidential candidates should push this issue hard.

IN THE MAIL: From David Weber, Shadow of Freedom (Honor Harrington).

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TAXPROF ROUNDUP: The IRS Scandal, Day 754.

TENURE’S DEMISE BEGINS?: A Wisconsin state legislative committee approved a measure that would, if ultimately enacted, cut $250 million from the University of Wisconsin over two years, and eliminate state laws guaranteeing tenure.  The $250 million cut can be absorbed with little effect by eliminating the unnecessary layers of bureaucracy. As for the tenure reforms:

The elimination of tenure protections was first suggested by [Gov. Scott] Walker back in February, but was considered a longshot proposal. The Joint Finance Committee, however, is tremendously influential, and its decision to send the rollback to the floor of the legislature is seen as making passage much more likely.

By itself, the measure wouldn’t end tenure, but it would remove the current protections it has under state law and allow universities to set their own policies on the matter. In response, current UW system president Ray Cross said the school’s board of regents will act to enshrine tenure as university policy in a meeting later this week.

More details:

In addition to removing tenure from state law, the budget committee called to make it easier for tenured faculty to be fired or laid off. One provision eliminates current law requiring that tenured faculty only be removed for just cause and only after due notice and hearing. Another provision gives Regents authority to lay off any employee, including tenured faculty, if budget circumstances call for it. Seniority protections would go away, although seniority would be one factor considered in who loses jobs.

Darling stated that Wisconsin is the only state that has job protections for tenured faculty written into statutes, which Radomski said was a point of pride for many faculty and a reason faculty find System campuses a desirable place despite comparatively low salaries. The GOP motion calls for the Board of Regents to determine whether to have tenure and what it would entail.

UW faculty are fighting mad. I have mixed feelings about this, and it’s not because I have tenure (which I do).  Undoubtedly, tenure inherently creates some “dead wood”–faculty that slack off and lose interest in their jobs once they know they have a presumptive job for life.  And it would be nice to have a higher education system that reflects a real world ethos of rewarding excellence and punishing lethargy–among faculty, staff and administrators.

On the other hand, the original justification for tenure in higher education (and notice that this emphatically does not apply to lower education, where elementary, middle school and high school teachers do not undertake scholarship as part of their job) is that the job does generally require and involve scholarship, and sometimes that scholarship is politically controversial. Tenure was designed to ensure that scholars could feel free to express their views, without fear of retribution based on viewpoint discrimination. And frankly, it’s conservative professors who need this protection the most, as they are inherently swimming in a sea of progressive colleagues/deans/administrators/sharks who would be tempted to “punish” conservative scholarly viewpoints and activities. These concerns potentially could be allayed with robust statutory protections against viewpoint discrimination, but this would encourage expensive litigation whenever a faculty member is fired. Whether these costs would outweigh the benefits isn’t as clear as it may seem initially.

In any event, the Wisconsin legislature’s proposal represents a thoughtful beginning to an important discussion about what tenure means, and when it is needed (if ever).

FORTUNATELY, WE HAVE SMART DIPLOMACYTM ON THE JOB, SO NO WORRIES: The Middle East Aflame: Sectarian War in Saudi Arabia?

fter ISIS struck two Shi’a mosques in Saudi Arabia with suicide bombs, the worst sectarian violence the Kingdom has seen in recent times, Saudi authorities have begun a security crackdown in the country’s Eastern Province. But that hasn’t reassured the country’s minority Shi’a population, who are now forming militias for protection. In turn, the authorities are alarmed by these volunteers, and report that some are already being arrested. In the midst of the Saudi war on the Shi’a Houthi in Yemen, anti-Shi’a sentiment within the Kingdom is on the rise. ISIS is making use of that feeling to recruit; as one expert put it, “Rather than going after foreigners in well-defended compounds, [young Saudis] are blowing up fellow Saudis, who happen to be Shia.”
When ISIS struck Saudi Arabia two weeks ago, we noted that, “An attack like this both strengthens ISIS’ claim to be a pan-Sunni, anti-Shi’a “defense” force and sows division within what ISIS would see as a rival for the leadership of the Sunni world, Saudi Arabia.” The development of the Shi’a militias would appear to show the early success of that strategy. Divide et impera is a universal principle, after all—and ISIS has thrived since its beginning on ethnic strife.

The dark hopes of groups like ISIS for a region-wide sectarian war have been having a good run lately, with local forces separating into religious camps from Syria to Yemen. In the absence of an American-guaranteed regional balance of power, such patterns are likely to continue.

You know, maybe Obama’s not crazy here. I remember back after Saddam fell, Josh Marshall worried that we hadn’t killed enough Iraqis to have the kind of psychological effect that World War II generated in the Germans and the Japanese, quelling further resistance. Perhaps the foreign policy geniuses in the Obama Administration have taken this advice to heart, and figure that a decade or so of bloody religious strife throughout the Muslim world will produce a renewed appreciation for secularism. I don’t know if this is their plan or not — I mean, if it were, they wouldn’t come out and say so, would they? — but if it is their plan, then congratulations on stellar execution.

BUT WE WERE SUPPOSED TO SAVE $2,500 PER YEAR!: Brace yourself for Obamacare sticker shock.

Health insurers are proposing to raise Obamacare rates more than in the past — some by more than 70 percent — now that they are finally equipped with all the information they need to price those plans.

Plans wanting to raise rates by at least 10 percent next year posted the proposed increase online Monday, as required by the 2010 healthcare law. Insurers are allowed to raise rates each year, but they must publish significant increases ahead of time.

Insurers have sold plans in the law’s new insurance marketplaces for two years in a row. But the difference in 2016 is that for the first time, they have a full year of claims data from enrollees that tells them how high or low to set the price tag. . . .

While plans and rates vary by state, a look at rate increases published Monday on healthcare.gov shows many hovering around 10 to 30 percent in many states.

But there’s also a sprinkling of even bigger hikes. Blue Cross wants to raise its most expensive “platinum” plan in Alabama by 71 percent next year. Aetna wants to charge 59 percent more for one of its small group plans in Virginia. Time Insurance Co. is proposing a 64 percent hike for an individual plan in Georgia.

Gosh, what happened to that $2500 per year savings we were promised? Same thing that happened to the “if you like your plan/doctor, you can keep it/him.”  I think we need trigger warnings for all Obamacare-related news items, since it inevitably causes painful flashbacks of these promises.  It’s like intellectual rape over and over again. 

“REYNOLDS’ LAW” IN AN INTERNATIONAL CONTEXT: “There’s nothing more valuable than a U.S. passport. And there’s nothing that would reduce global inequality more than issuing a few more of them.” Americans are rich and successful compared to the rest of the world. Bring foreigners to America and they’ll be rich and successful too! To be fair, he does admit that there’s a tipping point somewhere. . . .

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HILLARY: Great moments in retail politicking: “Go to the end of the line”?

Related: Women-Only “Conversation With Hillary Clinton” Event Sells Only 50 Tickets, So Men Are Invited. Maybe this whole “vagina politics” thing is overrated?

CLUELESS: Obama claims he has restored the U.S. to the most respected nation on earth:

“People don’t remember, but when I came into office, the Untied States in world opinion ranked below China and just barley above Russia, and today once again, the Untied States is the most respected country on earth. Part of that I think is because of the work we did to reengage the world and say we want to work with you as partners with mutual interests and mutual respect. It was on that basis we were able to end two wars while still focusing on the very real threat of terrorism and try to work with our partners in Iraq and Afghanistan. It’s the reason why we are moving in the direction to normalize relations with Cuba and the nuclear deal that we are trying to negotiate with Iran.”

What is he smoking? As John Hayward points out in his new Breitbart oped:

A “recovery” that just gave us a negative 0.7 percent contraction, a health care plan that hasn’t lived up to a single one of its promises – and is bidding to blow health insurance costs into orbit next year – and foreign policy that wiped out America’s influence in virtually every corner of the world, especially the Middle East, where the gains in Iraq were thrown away, and the group Obama misjudged as the “junior varsity league” of terrorism is sacking cities? What’s not to love? Hey, America is more popular in Cuba and Iran now, right? . . .

How will history judge Obama? Who cares? It’s how the present is judging him that should scare us out of wits. It’s also hard to avoid noticing that his prospective Democrat successors aren’t exactly treating him as a model President whose policies they intend to emulate.

Exactly. It’s the present danger presented by President Obama’s incompetence/indifference/indolence that matters–and we still have 18 long months to go.

LACKING SELF AWARENESS:  Obama tells Asian leaders, “One of my core principles is that I will never engage in a politics in which I’m trying to divide people or make them less than me because they look different or have a different religion,” Obama said. “That’s a core principle, that’s not something I would violate.”

How principled of him. But then again, notice he limits his principle to dividing or devaluing people because they look “different” or have a “different” religion. So inferentially, individuals in the majority (whites and Christians) can/should be divided or devalued?

WELL, THAT’S BECAUSE HE IS: Americans, 3-1, say Obama is losing fight against ISIS.

President Obama, under fire in Congress and on the presidential campaign trail for doing too little to stop the Islamic State terror group, has lost the support of America, with most now saying that the administration isn’t winning the war.

A new poll out Monday found that American voters believe the U.S. and its allies are losing the fight by a margin of 64 percent to 17 percent. “Republicans, Democrats and independent voters, and men and women, all agree the U.S. is losing,” said the latest Quinnipiac University national poll.

And you get the feeling that Obama isn’t all that bothered about it.

JUNIOR VARSITY: While nobody was looking, the Islamic State launched a new, deadly offensive.

THE GERMAN PRESS DISCOVERS THE COLUMBIA MATTRESS-GIRL RAPE HOAX: “What is unimaginable in Germany has a tradition in the United States.”


The recent documentary The Hunting Ground asserts that young women are in grave danger of sexual assault as soon as they arrive on college campuses. The film has been screened at the White House for staff and legislators. Senate Democrat Kirsten Gillibrand, who makes a cameo appearance in the film, cites it as confirmation of the need for the punitive campus sexual assault legislation she has introduced. Gillibrand’s colleague Barbara Boxer, after the film’s premiere said, “Believe me, there will be fallout.” The film has received nearly universal acclaim from critics—the Washington Post called it “lucid,” “infuriating,” and “galvanizing”—and, months after its initial release, its influence continues to grow, as schools across the country host screenings. “If you have a daughter going to any college in America, you need to see The Hunting Ground,” the MSNBC host Joe Scarborough told his viewers in May. This fall, it will get a further boost when CNN, a co-producer, plans to broadcast the film, broadening its audience. The Hunting Ground is helping define the problem of campus sexual assault for policymakers, college administrators, students, and their parents. . . .

Willingham’s story is not an illustration of a sexual predator allowed to run loose by self-interested administrators. The record shows that what happened that night was precisely the kind of spontaneous, drunken encounter that administrators who deal with campus sexual assault accusations say is typical. (The filmmakers, who favor David Lisak’s poorly substantiated position that our college campuses are rife with serial rapists, reject the suggestion that such encounters are the source of many sexual assault allegations.) Nor is Willingham’s story an example of official indifference. Harvard did not ignore her complaints; the school thoroughly investigated them. And because of her allegations, the law school education of her alleged assailant has been halted for the past four years.

The Hunting Ground does not identify that man. His name is Brandon Winston, now 30 years old. Earlier this year, he was tried in a Massachusetts superior court on felony charges of indecent assault and battery—that is, unwanted sexual touching, not rape. In March, he was cleared of all felony charges and found guilty of a single count of misdemeanor nonsexual touching. Following the trial, the Administrative Board of Harvard Law School, which handles student discipline, reviewed Winston’s case and voted to reinstate him. This fall, he will be allowed to complete his long-delayed final year of law school.

Like most journalists and critics, I first wrote about The Hunting Ground on Feb. 27 of this year, the day the film made its theatrical debut, and did so unaware that, the same week, the unnamed man Willingham calls a rapist was standing trial in Middlesex County on the charges stemming from her criminal complaint. I learned of Winston’s trial when a juror contacted me after it concluded to express dismay that Winston had been forced to stand trial—and had faced potential jail time—for what she saw as a drunken hook-up.

“Regret rape” isn’t rape, but rather a symptom of immaturity and an unwillingness to take responsibility for one’s own actions, which appear to be far too common among American college women these days.

Related: Central Allegation in The Hunting Ground Collapses Under Scrutiny: Undermines entire documentary.

Of the details Yoffe reported, I was must struck by the fact that Willingham had offered Winston—an old acquaintance who had come to Willingham’s apartment to rekindle their friendship—cocaine, which they both consumed. The night eventually included a trip to a bar in the company of a female friend of Willingham’s. All three drank copious amounts of alcohol, and Winston and the friend (“KF”) made out on the dance floor. If there was an initiator in this encounter, it seems to have been KF.

The trio returned to Willingham’s apartment at 2 a.m. And guess what? Their recollections of what happened aren’t that great (alcohol and cocaine tend to have that effect). All collapsed on a bed at various points; there was some kissing and sexual contact, but no intercourse. There’s not a shred of evidence that Winston did anything criminal to either of the girls, aside from Willingham’s error-riddled assertions that he did. Some of her claims border on parody: she insisted that Winston had raped KF and a bloody condom in her wastebasket was the proof. But according to a lab test, it was Willingham’s blood on the condom, not KF’s, and no traces of Winston’s DNA were found.

Yoffe wrote that Winston “was hardly a perfect gentleman” on the night in question, and perhaps that’s true. But only if one assumes that all men, by nature of their physiology (or perhaps because of rape culture), are always the instigators in sexual encounters, and that women have no sexual agency whatsoever, could it be said that he was a rapist.

For his non-criminal ungentlemanly conduct, Winston’s academic future was put on hold for years. He was prosecuted, and eventually acquitted of felony charges but convicted of a misdemeanor, “touching of a sexual nature.” The Hunting Grounds holds this up as a travesty of justice, and it is. But, as Yoffe persuasively argues, that victim in this case was the accused, not the accuser.

Yes. Willingham’s career is the one that ought to suffer here. She is not a victim, but a perpetrator.

MOTHER JONES DISCOVERS THE HIGHER EDUCATION BUBBLE: College Has Gotten 12 Times More Expensive in One Generation. Of course, Mother Jones being Mother Jones, this is seen as evidence that we need to pump more subsidies into the system.

June 1, 2015

CHANGE: Ebb Tide in the Golden Country: All is not as it was for Jews in America. “The golden age of the American Jews was just a moment in time.”

ROBBY SOAVE: “Feminism Devouring Itself:” We Literally Can’t Afford to Let the Title IX Inquisition Continue. “The prevailing interpretation of Title IX is a problem—not merely for freethinkers and contrarians, but for the basic operations of the university and for the bank accounts of today’s college students. Everyone can be accused of Title IX retaliation, and everyone can accuse everyone else of Title IX retaliation. The university will hire loads more bureaucrats to deal with the complaints, the lawyers will collect their checks, and tuition prices will continue to soar.”

ROGER SIMON: Keep Hillary-Slayer Carly Fiorina in this Thing.

IT’S ALWAYS NICE TO SEE AN ACTOR WHO ISN’T AN IDIOT: Vince Vaughn Thinks That Guns Should Be Allowed In School.

LIFE AFTER Mommy-Blogging. “The blogging world has gotten rather toxic and I just feel really drained. . . . The publishing schedule is just so extreme now. There’s an expectation that you’ll post at least once a day.”

FOR GERMANY, demography is doom. “Germany’s birth rate has collapsed to the lowest level in the world and its workforce will start plunging at a faster rate than Japan’s by the early 2020s, seriously threatening the long-term viability of Europe’s leading economy.”

KURT SCHLICHTER: 4 Pieces of Conservative Advice For Young Conservative Men.

ED KRAYEWSKI: The Long War On Guns. “The ATF started as an Internal Revenue Service spinoff that supplemented its arrests of moonshiners with arrests of firearm handlers. In 1980, Lewis reported that the bureau was more interested in justifying its existence by producing offenses such as paperwork violations than in preventing guns from being used in violent crimes. Today the agency has evolved into offering services and resources to police departments in increasingly common joint local/state/federal law enforcement operations.”

Abolish it.

ADHD LINKED TO COMMON PESTICIDE: A new study published in the journal Environmental Health has identified an association between a common pesticide, pyrethroid, and ADHD in boys.

Boys with detectable urinary 3-PBA, a biomarker of exposure to pyrethroids, were three times as likely to have ADHD compared with those without detectable 3-PBA. Hyperactivity and impulsivity increased by 50 percent for every 10-fold increase in 3-PBA levels in boys. Biomarkers were not associated with increased odds of ADHD diagnosis or symptoms in girls.

Pyrethroids are an insecticide used in mosquito control, flea/tick pet treatments and bug bomb foggers.

POLITICS: Corruption Is Winning.


Also from Ashe Schow.

FLASHBACK: Infographic: Women Control The Money In America.

ABERCROMBIE LOSES RELIGIOUS DISCRIMINATION SUIT: The Supreme Court ruled today in favor of a Muslim young woman who was denied a job at an Abercrombie store because she wore a hijab, thus violating the store’s “look policy” for salespersons, which prohibited the wearing of any caps or other head coverings.  The policy violated the 1964 Civil Rights Act, which prohibits discrimination based on race, color, religion, sex or national origin.

Justice Scalia, writing for a 7-Justice majority (Justice Alito concurred separately in the judgment but didn’t join the majority), concluded:

Instead, the intentional discrimination provision prohibits certain motives, regardless of the state of the actor’s knowledge. Motive and knowledge are separate concepts. An employer who has actual knowledge of the need for an accommodation does not violate Title VII by refusing to hire an applicant if avoiding that accommodation is not his motive. Conversely, an employer who acts with the motive of avoiding accommodation may violate Title VII even if he has no more than an unsubstantiated suspicion that accommodation would be needed.

Thus, the rule for disparate-treatment claims based on a failure to accommodate a religious practice is straightforward: An employer may not make an applicant’s religious practice, confirmed or otherwise, a factor in employment decisions. For example, suppose that an employer thinks (though he does not know for certain) that a job applicant may be an orthodox Jew who will observe the Sabbath, and thus be unable to work on Saturdays. If the applicant actually requires an accommodation of that religious practice, and the employer’s desire to avoid the prospective accommodation is a motivating factor in his decision, the employer violates Title VII.

Abercrombie urges this Court to adopt the Tenth Circuit’s rule “allocat[ing] the burden of raising a religious conflict.” This would require the employer to have actual knowledge of a conflict between an applicant’s religious practice and a work rule. The problem with this approach is the one that inheres in most incorrect interpretations of statutes: It asks us to add words to the law to produce what is thought to be a desirable result. That is Congress’s province. We construe Title VII’s silence as exactly that: silence. Its disparate treatment provision prohibits actions taken with the motive of avoiding the need for accommodating a religious practice.

Justice Clarence Thomas was the sole dissenter, concluding:

I would hold that Abercrombie’s conduct did not constitute “intentional discrimination.” Abercrombie refused to create an exception to its neutral Look Policy for Samantha Elauf ’s religious practice of wearing a headscarf.  In doing so, it did not treat religious practices less favorably than similar secular practices, but instead remained neutral with regard to religious practices. To be sure, the effects of Abercrombie’s neutral Look Policy, absent an accommodation, fall more harshly on those who wear headscarves as an aspect of their faith. But that is a classic case of an alleged disparate impact. It is not what we have previously understood to be a case of disparate treatment because Elauf received the same treatment from Abercrombie as any other applicant who appeared unable to comply with the company’s Look Policy. Because I cannot classify Abercrombie’s conduct as “intentional discrimination,” I would affirm.

I think Justice Thomas has the better argument here, as Abercrombie’s policy did not appear to be motivated by intentional discrimination against Muslims or any other religion.  Such neutral policies should be presumptively not discriminatory absent strong evidence to the contrary.  But the Court has been very protective of religious exercise in recent cases (both constitutional and statutory), and this decision’s rationale can be extended to provide more robust protection for all religions, not just Muslims. Employers, however, will likely be more constrained in their ability to impose dress restrictions (hair; facial hair; clothing) that disproportionately impact certain religions, as it will be argued that their dress policy “motivates” an adverse employment action, because they don’t want to “accommodate” a person who doesn’t satisfy their policy.


The thing about Tumblr feminists — as with all feminists, really — is their bedrock conviction that men know nothing. All men are bad and wrong and stupid, the feminist believes, and the only things men ever do is (a) enjoy male privilege and (b) oppress women.

Fortunately, the suffering victims of oppression have Tumblr, where they can advertise to the world how pathetic they are, and how racist/heteronormative their mom is, etc., etc.

When I call attention to these pathetic creatures, I’m sometimes accused of an intent to “bully” or “harass” them. Because this is the definition of “harassment” in 2015: Quoting what people publish on their blogs.

All I did was search Tumblr for “heteronormativity,” see?

Strange people you can find, if you know how to find them.

Would I like to help these crazy people? Sure, but feminism by its nature means that nothing I say is valid, all my ideas are wrong, and no advice I might offer would be helpful. The young feminist must only ever listen to what her fellow feminists tell her, because everybody else is evil in this world full of heteronormativity, misogyny and, of course, racism.

They have been catechized, as it were, into this belief system.

Well, people are vulnerable when they have no other.

NEWS YOU CAN USE: Advice to take the bite out of bug season.

K.C. JOHNSON: Blue State Justice Rarer Than Red. “In a polarized country, it probably should come as little surprise that campus due process also is becoming polarized over alleged sexual violations. While the Office for Civil Rights seeks to eviscerate the rights of accused students nationwide, accused students increasingly have more rights in red states than in blue states—largely because blue state governments are eagerly taking those rights away.”

A GOOD SIGN FOR THE HOUSE LAWSUIT:  Judge digs deeper into House GOP’s lawsuit against Obama. The appropriations count of the complaint is very strong. If the House cannot protect itself against executive encroachments on its power of the purse, no one can, and this aspect of separation of powers is rendered merely precatory. The good news is that Judge Rosemary Collyer (a smart cookie) seems to understand what is at stake in this lawsuit.

MEGADOWNLOADS: The Insta-Wife’s documentary, Six, has gotten over one million views on YouTube.

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MY USA TODAY COLUMN, ON THE KIPNIS AFFAIR: Today’s Feminists Are Too Fragile To Read.

USELESS PIECE OF . . . . : French Foreign Minister Laurent Fabius says a nuclear deal with Iran will be “useless” unless fully verifiable, including allowing access to Iranian military sites, which Iran has stated it will not allow.

THE SCIENCE ISN’T SETTLED. IT ISN’T EVEN SCIENCE: Sting Operation Shows How Full Of Crap Health Journals Are When It Comes To Dietary Studies.

FASTER, PLEASE: Hacking The Human OS. “Medicine has always sought to understand the human body’s operating system. Now, with biometric sensors and big data analytics, we’re learning how to fix the bugs.”

WELL, THIS IS THE 21ST CENTURY, YOU KNOW: The U.S. Air Force Wants Laser-Firing Jets By 2022.

MY USA TODAY COLUMN, ON THE KIPNIS AFFAIR: Today’s Feminists Are Too Fragile To Read.

MAURICE STUCKE AND ALLEN GRUNES: Debunking the Myths Over Big Data and Antitrust.

IN THE MAIL: From Bertram Chandler, Gateway to Never (John Grimes).

Plus, today only at Amazon: Up to 50% Off Select Logitech iPad Accessories.

And, also today only: “Smallville: The Complete Series,” $94.49 (67% off).

TAXPROF ROUNDUP: The IRS Scandal, Day 753.


Los Angeles recently decided to raise its minimum wage to $15 an hour across the board, including even tipped workers like waitstaff. A lot of businesses opposed the new rule on the grounds that it would make their operations unaffordable. Now a new group is joining them in saying the law’s not right for their operation: union leaders.

You read that right. Union leaders are saying that the $15 minimum wage is a bad idea. Not for everyone, of course; for most businesses and workers, they think it’s splendid. But for union operations, they need an exemption. Rusty Hicks, the head of the Los Angeles County Federation of Labor, said businesses that have collective bargaining agreements with employees should be able to negotiate a wage below the “minimum.”

This has been greeted with jeers from both left and right, though Matt Yglesias does mount a defense.

You can count on Matt for that sort of thing. But my take’s more like this one:

If workers have to have $15 an hour to live in LA, and that’s a level the economy can support with minimum job loss, then the $15-an-hour wage should apply to everyone. If in fact this wage level is too costly, then LA should lower it for everyone. Lowering it only for favored political groups is a terrible idea, and the unions have earned every bit of the catcalling they got for suggesting it.


JERRY BROWN AND EDUCATION: The governor who didn’t bark. Schools are raiding money earmarked for poor students, and siphoning it off into teacher raises. And Jerry isn’t saying anything.

GOING AFTER BADTHINK: Justice Department Studying ‘Far-Right’ Social Media Use.

A CANCER IS SPREADING: ISIS claims responsibility for suicide bombing in Saudi Arabia. ISIS’s targeting of Saudi Arabia means awful things for the U.S.:

What these attacks say is that Riyadh doesn’t have the comforting control over its land that Americans like to believe it does. And if the royal family doesn’t have its territory as buttoned down as Washington assumed, what other weaknesses has it been masking? What other vulnerabilities now are on view? . . .

The real reason is that it casts into doubt all of the mythology America has created around its favorite autocratic kingdom. The royal family operates a government that is truly authoritarian. It abuses the rights of its citizens. It discriminates against women. It does frightfully little to protect its minority communities. Beheadings. Disappearances. But, damn, it sure is quiet over there. And man, that’s gotta mean those guys are as tough as we need them to be, that they are the mighty Sunni power that’s going to help us do one thing in particular—keep Iran in check.

It’s about to get very noisy. And Iran won’t be kept in check; it is emboldened.

HIGHER EDUCATION BUBBLE UPDATE, LEGAL EDUCATION EDITION: Former Assistant Dean, Tenured Law Prof Sue Cleveland-Marshall Dean, Claim Retaliation For Formation Of Faculty Union.

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MY USA TODAY COLUMN, ON THE KIPNIS AFFAIR: Today’s Feminists Are Too Fragile To Read.

THE WORLD SMELLS WEAKNESS: A confluence of events this week emphasizes that the world–especially its worst characters–smells the pungent aroma of American weakness thanks to President Obama’s purposeful, “leading from behind” philosophy of non-leadership:

Iran is brazenly trying a Washington Post reporter, Jason Rezaian for espionage, ignoring State Department entreaties to release him. It also has ongoing ties to North Korea, which is providing nuclear weaponry expertise, even as Iran claims to be negotiating the the Obama Administration to halt development of its nuclear weapon program.

Israel’s Prime Minister Benjamin Netanyahu is forced to pitch his country’s concerns about the Iran nuclear deal directly to Congress, and our President won’t even meet with him.

President Obama will meet with Arab Gulf leaders, however, in an attempt to pitch them on his Iranian deal. But the leaders of Saudi Arabia and Bahrain snub the President and don’t attend. Saudi Arabia sends its own troops in to fight ISIS in Syria.

China is building up strategically located islands in the South China Sea–including construction of a military airstrip–destabilizing the area and warning the U.S. not to fly or sail near them.  After Secretary of Defense Ash Carter responded tepidly, a Chinese Colonel said Mr. Carter “wasn’t as tough as I expected.”

To counter Putin’s overt aggression in Crimea, Lithuania and Poland tell Congress they want U.S. military bases to protect them.

Secretary of Defense Ash Carter admitted that the US-trained Iraqi military forces have “no will to fight” ISIL–the official excuse for why Ramadi and other major cities in the region are falling.  But then again, the Administration doesn’t exhibit a will to fight ISIL either.

The Obama Administration’s support of the Muslim Brotherhood and ISIS-supporting Syrian rebels have been disasters.

The question is: What will 18 more months of an Obama Administration mean for U.S. national security?

TUNKU VARADARAJAN: Reverse swing: Blatter and Beijing: Let us give thanks to the United States, and take comfort from the fact that it is the world’s judicial superpower. “It is customary to talk of American strength in military terms, and while that strength is on the wane — distressingly so, for those of us who want to keep China on a leash — it is still a match for the challenges and torments that beset the globe. But there is an aspect of American ‘policing’ that is frequently overlooked: its positive resort to the law, and to legal muscle.”

IN CASE YOU MISSED IT, here’s the video of my Stossel appearance talking about higher education.

ASHE SCHOW: Former NY lieutenant governor blasts campus sexual assault policies.

Betsy McCaughey, the former lieutenant governor of New York under Gov. George Pataki, has taken current Gov. Andrew Cuomo to task for his “toughest in the nation” proposal for campus sexual assault policies.

“It would make campuses in New York a hostile environment for young men,” McCaughey wrote in the New York Post. “One misstep and they could find themselves accused of ‘sexual assault,’ denied a fair hearing, expelled and unemployable.”

She also said Cuomo’s proposal, which introduces “affirmative consent” to private colleges, “criminalizes normal sexual interactions.” Affirmative consent requires a “conscious and voluntary agreement” that is “ongoing throughout a sexual activity and can be revoked at any time.” This means a person must ask for consent at every step of the sexual encounter, from the first kiss through the end. And revoking consent at any time has come to mean even after the encounter has ended. . . .

“Affirmative consent is dangerous enough, but Cuomo would also deny accused students due process,” McCaughey wrote. “What goes on in a dark dorm room is usually one student’s word against another’s.”

She also described the bill’s use of the word “victim” or “survivor” as a “bias that the accuser is always right.”

McCaughey says the real problem on college campuses is alcohol abuse, which should be the focus of any college policy – not “stripping college men of their legal rights and criminalizing dorm-room hook-ups.”

She’s right, of course.

IT’S ALWAYS FUN TO MAKE TWITCHY, but this time was especially fun.

ERIK WEMPLE: Hillary Clinton’s team takes another hit on media briefings.

Media organizations are at the wrong end of a power dynamic vis-a-vis the Clinton campaign: They number in the hundreds — thousands, perhaps — and they’re all vying for whatever meal scraps they can scrounge up. There aren’t too many levers that reporters can pull to change that imbalance. Publicly chiding the campaign’s briefings is one of them, however.

Just start covering her like you’d cover a Republican.

RICO: A NEW FRONT ON THE WAR ON FREE SPEECH:  As preposterous as it sounds, Senator Sheldon Whitehouse (D-RI) has an oped in the Washington Post arguing that the federal racketeering law, RICO, should be used to prosecute those who deny global warming climate change:

Fossil fuel companies and their allies are funding a massive and sophisticated campaign to mislead the American people about the environmental harm caused by carbon pollution.

Their activities are often compared to those of Big Tobacco denying the health dangers of smoking. Big Tobacco’s denial scheme was ultimately found by a federal judge to have amounted to a racketeering enterprise. . . .

The parallels between what the tobacco industry did and what the fossil fuel industry is doing now are striking.

In the case of fossil fuels, just as with tobacco, the industry joined together in a common enterprise and coordinated strategy. In 1998, the Clinton administration was building support for international climate action under the Kyoto Protocol. The fossil fuel industry, its trade associations and the conservative policy institutes that often do the industry’s dirty work met at the Washington office of the American Petroleum Institute. A memo from that meeting that was leaked to the New York Times documented their plans for a multimillion-dollar public relations campaign to undermine climate science and to raise “questions among those (e.g. Congress) who chart the future U.S. course on global climate change.” . . .

To be clear: I don’t know whether the fossil fuel industry and its allies engaged in the same kind of racketeering activity as the tobacco industry. We don’t have enough information to make that conclusion. Perhaps it’s all smoke and no fire. But there’s an awful lot of smoke.

Senator Whitehouse seems to be utterly ignorant of the fact that the “science” supporting global warming climate change is far from settled, unlike the situation of the tobacco litigation, which involved, in the judge’s words, evidence that the tobacco industry “suppressed research, [] destroyed documents, [] manipulated the use of nicotine so as to increase and perpetuate addiction, [and] distorted the truth about low-tar and light cigarettes so as to discourage smokers from quitting.”

First, this man should be voted out of office as soon as human possible.  His ignorance is dangerous. Second, the state bar should require him to undergo at least 100 hours of mandatory continuing legal education on the subject of constitutional law, with emphasis on the First Amendment. Newsflash: joining together to discuss common interests and even–gasp!–funding research, white papers and lobbying efforts to advance one’s perspectives on an issue isn’t illegal; its free speech.

THIS SHOULD HELP BOOST GOP TURNOUT IN 2016: Surgeon General Vivek Murthy Intends To Push Gun Control As A Health Issue.

KEVIN WILLIAMSON: When District Attorneys Attack: The GOP should turn its attention to prosecutorial misconduct. “This is not a one-off. Prosecutorial misconduct is a plague upon these United States, from the vodka-pickled Democratic political jihadists in Austin to California, where judges complain of an ‘epidemic’ of prosecutorial misconduct abetted by Democratic attorney general Kamala Harris, who is seeking to replace retiring Barbara Boxer in the Senate.”

JUSTICE: Investigators Raid Home of Chris Collins’ Chief of Staff.

You know, I don’t know anything about this case, and corruption in New York State is easy enough to believe. But I’m sufficiently cynical the justice system these days that I wouldn’t be shocked to see a lot of prosecutions of Republicans between now and 2016, prosecutions that would have the effect of undercutting GOP attacks on the rampant corruption of the Obama era.

DAILY BEAST: Obama’s New War Plan: Nothing. “The self-proclaimed Islamic State has claimed a major provincial capital in Iraq and taken over another strategically key city in Syria. In response, the Obama administration plans to do—well, not much of anything new. Four defense officials told The Daily Beast that there’s still strong resistance within the Obama administration to making any serious changes to the current strategy for fighting ISIS—despite mounting skepticism from some in the Pentagon about the current U.S. approach to the war.”

CULTURE OF CORRUPTION: How Denny Hastert and Harry Reid Got Rich While Serving In Congress. “All of this self-dealing is a major reason that Americans hold Congress in such low esteem today. It helps explain why GOP presidential candidate Carly Fiorina is bringing audiences to their feet when she cites a recent Rasmussen Reports poll: It’s sad, she says that ’82 percent of the American people now believe that we have a professional political class that is more focused on preserving its power and privilege than it is on doing the people’s work.’”

TOM BLUMER: The Economy Has No Clothes: So they further define down the “new normal.”

On Friday, the government’s Bureau of Economic Analysis reported that the nation’s economy contracted at an annual rate of 0.7 percent during this year’s first quarter, a sharp drop from the barely positive 0.2 percent it estimated a month ago.

Ignoring for now the current absurd allegations that Friday’s reported decline overstates how bad things are because the BEA must not be properly performing its seasonal adjustment calculations — a matter I will address in my next column — I’m more than a little surprised that the contraction wasn’t worse.

Many key components of what the nation’s gross domestic product truly is — “the (real) value of the production of goods and services in the United States” — turned in seasonally adjusted first-quarter results far below those seen last summer and fall. In certain key instances, the first quarter of 2015 actually came in below the far more winter-ravaged first quarter of 2014, effectively reversing all of the growth occurring during the quarters in between. . . .

Many economists and analysts have revised their original estimates of second-quarter growth dramatically downward. As of May 26, the Atlanta Branch of the Federal Reserve, whose GDP model based on the data available in late April almost exactly nailed the government’s original positive 0.2 percent first-quarter growth estimate, projected that the second quarter will come in at an annualized 0.8 percent. As of Friday, even the incorrigible Keynesians at Moody’s were predicting only 1.5 percent.

You might expect that policymakers and pundits would be looking into why the economy continues to crawl along at subpar speed and occasionally contract, which has now happened three times since the recession’s official end. Dream on. In addition to the whining about seasonal adjustments noted earlier, they’re also declaring that the U.S. economy simply can’t grow any faster, no matter who’s in charge and no matter what their public policy prescriptions are.

Yeah, I don’t believe that.

A SMALL DONATION TO THE CLINTON FOUNDATION MIGHT HELP: On the trail of Hillary Clinton, not everyone is allowed to jump into the press pool.

PROBABLY BECAUSE IT’S WORSE THAN THEY’RE BEING TOLD: Why don’t Americans feel better about the economy?

May 31, 2015

HMM: Testosterone replacement therapy (TRT) in older men with hypogonadism may be safe and even improve cardiovascular risk. “It seems to be safe with the meta-analyses and the recent data from a cardiac and prostate cancer perspective. However, we still have to do more due diligence to say that it’s absolutely safe.” Well, absolutely safe is setting the bar pretty high.

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ROSS DOUTHAT: The Prospects for Polygamy. “I feel safe predicting that polygamy will not be legally recognized, with fanfare and trumpets, in 2025. But it might be recognized in 2040, with a shrug.”

HIS HAIR IS, BUT NOT HIS ARTICLE:  Bernie Sanders tries to explain his bizarre fictional sex story, “Man and Woman,” as “Something like Fifty Shades of Grey.”

NEWS YOU CAN USE: What’s that tiny hole in airplane windows? Good to know–was always curious about that thing.

CRIME WAVE: The consequences of the ‘Ferguson effect’ are already appearing. The main victims of growing violence will be the inner-city poor.

The nation’s two-decades-long crime decline may be over. Gun violence in particular is spiraling upward in cities across America. In Baltimore, the most pressing question every morning is how many people were shot the previous night. Gun violence is up more than 60% compared with this time last year, according to Baltimore police, with 32 shootings over Memorial Day weekend. May has been the most violent month the city has seen in 15 years.

In Milwaukee, homicides were up 180% by May 17 over the same period the previous year. Through April, shootings in St. Louis were up 39%, robberies 43%, and homicides 25%. “Crime is the worst I’ve ever seen it,” said St. Louis Alderman Joe Vacarro at a May 7 City Hall hearing.

Murders in Atlanta were up 32% as of mid-May. Shootings in Chicago had increased 24% and homicides 17%. Shootings and other violent felonies in Los Angeles had spiked by 25%; in New York, murder was up nearly 13%, and gun violence 7%.

Those citywide statistics from law-enforcement officials mask even more startling neighborhood-level increases. Shooting incidents are up 500% in an East Harlem precinct compared with last year; in a South Central Los Angeles police division, shooting victims are up 100%.

By contrast, the first six months of 2014 continued a 20-year pattern of growing public safety. Violent crime in the first half of last year dropped 4.6% nationally and property crime was down 7.5%. Though comparable national figures for the first half of 2015 won’t be available for another year, the January through June 2014 crime decline is unlikely to be repeated.

The most plausible explanation of the current surge in lawlessness is the intense agitation against American police departments over the past nine months.

A 20-year decline in violent crime reversed in six months. Fundamentally transformed.

THAT’S NOT NICE: Cat Lick Blamed For Woman’s Blindness.