Monday, January 3, 2022

We Need You: An Open Letter to U.S. Democracy Organizations

Cross-posted from
Dear democracy, voting, and civic engagement organizations:
I write to you as the concerned father of three small children. The events of the past two years compel me to think a lot about their future. Specifically, what kind of country will they grow up in? Like you, I view the attacks on U.S. democracy — led by Donald Trump and the far right — with increasing alarm. I’m writing to you in my capacity as a private citizen and not as a representative of any organization, company, or political party. 
Can you all to come together, pool your resources, establish an unprecedented grand coalition, undertake mass mobilization, and lead us to rebuild U.S. democracy? 
As organizations focused on democracy, voting rights, and civic engagement, you know the issues. You know what far-right extremists are doing, how well organized they are, and what the stakes are if they succeed. In no particular order: extreme and racist gerrymandering; voter suppression measures, including roll purges, reduced polling station hours, and restrictions on mail-in voting; enabling state legislatures to reassign a state’s electoral votes regardless of the population’s wishes; adopting violent tactics and threats; replacing local election officials with Trump loyalists; and embracing white supremacy. The list goes on.
These are not the actions of a political movement that respects democratic norms in a representative system. Whatever the Republican Party has been in the past, it has now become the vehicle for a proto-fascist social movement committed to one-party rule, based on “The Big Lie” that the 2020 election was stolen from Trump.
The peaceful transition of power is an essential component of a stable democracy. We now see how fragile it is. By fomenting the insurrection of January 6, 2021, Donald Trump and other far-right leaders shattered that norm. While the January 6 insurrection failed, it also showed us that our political landscape has fundamentally changed. There is a credible argument to be made that anti-democratic forces will try again in 2024, with more coordination and discipline. It appears that January 6 was a dress rehearsal. New York Times journalist David Leonardt recently argued compellingly that “America’s anti-democratic movement is making progress.” 
We need an even more compelling opposite force: a pro-democracy movement that is as united as the extreme right, deeply committed to exposing lies and subversion, and focused on leveling the playing field for free and fair elections. 
I believe that we now find ourselves in a situation where ‘small-d’ democratic reforms must come from a mass social movement more powerful than the extreme right. Describing what makes transformational presidencies successful, political scientist Corey Robins writes
What each of these presidents had at their back was an independent social movement….
Each of these movements had their own institutions. Each of them was disruptive, upending the leadership and orthodoxies of the existing parties. Each of them was prepared to do battle against the old regime. And battle they did. 
Social movements deliver votes to friendly politicians and stiffen their backs. More important, they take political arguments out of legislative halls and press them in private spaces of power. They suspend our delicate treaties of social peace, creating turbulence in hierarchical institutions like the workplace and the family. Institutions like these need the submission of subordinate to superior. By withholding their cooperation, subordinates can stop the everyday work of society. They exercise a kind of power that presidents do not possess but that they can use. 
If Joe Biden’s presidency is to be transformational for voting rights, it needs a social movement pushing for reform. The U.S. public needs you now more than ever.
Your organizations have accomplished great things and stand for grand principles. As a concerned citizen, I humbly appeal to you to come together and form a grand coalition to build a mass movement dedicated to democracy. 
Is it possible to convene a grand conference; develop a coordinated leadership strategy; build key connections with and between stakeholders; mobilize your respective constituencies under a common set of demands; lead us to march in the streets; canvass neighborhoods; organize boycotts and donation campaigns; bring public pressure to bear on key legislators and influential private actors; and work with local organizations to build a ground-up, grassroots movement that unites diverse constituencies under the banner of democracy, fair elections, and public accountability?
I sincerely hope the answer to that multi-faceted question is “yes.” While I recognize that your organizations are doing great work independently, we now need something more to counteract the cancer that threatens our democracy. What I’m asking you for is a major scaling-up and coordination of your efforts. I believe that what you could accomplish together would be greater than the sum of your parts.
Without such a social movement, I fear that authoritarian rule by a ruthless far-right movement is in our future. I don’t want the United States to become a place where political violence and threats thereof are commonplace, where elections are mere public theater with predetermined outcomes. This is not a future I want for my children.
So please step up. Come together with your commitment, expertise, resources, and leadership. We need you.
Patrick Finnegan
Saint Paul, Minnesota

Thursday, September 26, 2019

What Going On in Central America?

By Patrick Finnegan

The news is saturated with stories about immigration policy and the U.S. southern border.  From the beginnings of his first presidential campaign, President Trump has made a crackdown on immigration the centerpiece of his politics.  As Dara Lind wrote recently on Vox, "President Trump’s constant temper tantrums about the US-Mexico border have become the background noise of his administration."  Despite the harshness of U.S. border policy and inhumane detention conditions in ICE custody, Central American migrants have continued to come to the U.S. in the tens of thousands.  With such a hostile political climate awaiting them, we should ask why.

Who is Coming to the Border?

Firstly, it is important to be clear on who is attempting to cross the border.  While most migrants are coming through Mexico, they are not themselves Mexican; for example, a Pew research study found that 62% of migrants apprehended by CBP in fiscal year 2018* were not Mexican.  In recent years, the majority of immigrants coming in at the southern border are from El Salvador, Guatemala, and Honduras.  As of May 2019, 53% of cases pending in U.S. immigration courts pertained to people from those three countries.  A large number of incoming migrants are family units, not only adults.

What is Driving Central Americans North?

As Dara Lind wrote, "The simplest answer is probably the truest: because things are bad enough for them in their home countries of Guatemala, Honduras, and El Salvador that they’ve decided to risk the journey to the US, and whatever treatment awaits them here, for a chance in America."  The principal factors driving this northward migration appear to be violence, corruption, and poverty.  The three countries, together known as the "Northern Triangle" of Central America, experience some of the world's highest rates of violence outside of conflict zones.

A brief glance at human rights conditions in each country is instructive.

El Salvador
According to Amnesty International's 2017-18 human rights report, "El Salvador’s high rate of gender-based violence continued to make it one of the most dangerous countries to be a woman."  Although El Salvador's murder rate decreased significantly from 2016 to 2017, it continues to have one of the highest rates in the world (50.3 per 100,000 according to data for 2018).

Human Rights Watch reported that "Gangs continued in 2018 to exercise territorial control and extort residents in municipalities throughout the country. They forcibly recruit children and subject some women, girls, and lesbian, gay, bisexual, and transgender (LGBT) individuals to sexual slavery. Gangs kill, disappear, rape, or displace those who resist them, including government officials, security forces, and journalists.

Security forces have been largely ineffective in protecting the population from gang violence and have committed egregious abuses, including the extrajudicial execution of alleged gang members, sexual assaults, and enforced disappearances."

The U.S. State Department human rights report for 2018 identified the same issues in detail.

Although economic conditions have improved somewhat in recent years in El Salvador, the World Bank still noted that 31% of the population lived in poverty as of 2016.  The Congressional Research Service pointed out that crime and corruption may swallow up to 6% of the country's GDP.  Additionally, "[N]atural disasters, including flooding in 2017 and a drought in 2018, have hindered agricultural output."

As is the case in El Salvador, Guatemala faces the repercussions of organized crime and gang violence.  As Human Rights Watch reports, "Violence and extortion by powerful criminal organizations remain serious problems in Guatemala. Gang-related violence is an important factor prompting people, including unaccompanied children and young adults, to leave the country."  Recourse to the courts is limited: "Guatemala suffers from high levels of impunity, partly because criminal proceedings against powerful actors often suffer unreasonably long delays due to excessive use of motions by criminal defendants....  Intimidation against judges and prosecutors and corruption within the justice system continue to be problems."  Additionally, journalists are persistent targets for murder.

Amnesty International observes that human rights defenders continue to operate under threat: "The Guatemalan NGO Unit for the Protection of Human Rights Defenders in Guatemala said that defenders working on rights related to land, territory and the environment faced the highest number of attacks...  In addition, human rights defenders were constantly subjected to smear campaigns to stigmatize and discredit them and their work..."

The U.S. State Department human rights report states that "Human rights issues included reports of harsh and life-threatening prison conditions; widespread corruption; trafficking in persons; crimes involving violence or threats thereof targeting lesbian, gay, bisexual, transgender, and intersex (LGBTI) persons, persons with disabilities, and members of other minority groups; and use of forced or compulsory or child labor."

In regard to economic conditions, the Congressional Research Service reports that "Guatemala’s stable growth rates have not been enough to decrease some of the highest levels of economic inequality and poverty in the region. Instead, Guatemala has backtracked.  After decreasing the overall poverty rate from 56% to 51% between 2000 and 2006, the rate increased to 59% in 2014, with a rate just over 79% for indigenous people, according to a national survey."

Summing up human rights conditions in Honduras, Amnesty International notes "The level of insecurity and violence remained high. Widespread impunity continued to undermine public trust in the authorities and the justice system. Protests in the aftermath of the presidential election [of 2017] were brutally repressed by security forces.  Honduras remained one of the most dangerous countries in the Americas region for human rights defenders, especially for those working to protect land, territory and the environment."

Human Rights Watch reports that, "Despite a downward trend in recent years, the murder rate remains among the highest in the world" (44 per 100,000 in 2017).  Additionally, "A crackdown on protests following the November 2017 national elections resulted in the death of at least 22 civilians and one police officer, and in more than 1,300 detentions.  Journalists, environmental activists, and lesbian, gay, bisexual, and transgender (LGBT) individuals are vulnerable to violence. Efforts to reform the institutions responsible for providing public security have made little progress. Marred by corruption and abuse, the judiciary and police remain largely ineffective. Impunity for crime and human rights abuses is the norm."

The U.S. State Department human rights report highlights the widespread effects of organized crime and gang activity: "Organized criminal elements, including local and transnational gangs and narcotics traffickers, were significant perpetrators of violent crimes and committed acts of homicide, extortion, kidnapping, torture, human trafficking, intimidation, and other threats and violence directed against human rights defenders, judicial authorities, lawyers, the business community, journalists, bloggers, women, and members of vulnerable populations."

Economic conditions in Honduras are harsh, with two thirds of the labor force un- or under-employed.  The Congressional Research Service notes that "The Honduran economy has expanded by an average of 3.9% annually over the past five years, but it is not generating sufficient employment to absorb the country’s growing labor supply."  Additionally, "Honduras’s recent economic growth has also proven insufficient to reduce the country’s high poverty rate....  More than 67% of Hondurans live below the national poverty line. Conditions are particularly difficult in rural Honduras, where nearly 63% of the population lives in extreme poverty—unable to satisfy their basic nutritional needs.  In recent years, many rural communities have struggled to contend with a coffee fungus outbreak and a series of droughts that have destroyed crops and reduced agricultural production and employment."

Another Factor: Climate Change

Climate change is another factor driving migration from all three countries.  For example, as PBS Newshour points out, "Since 2014, a serious drought has decimated crops in Central America’s so-called dry corridor along the Pacific Coast. By impacting smallholder farmers in El Salvador, Guatemala and Honduras, this drought helps to drive higher levels of migration from the region.  Coffee production, a critical support for these countries’ economies, is especially vulnerable and sensitive to weather variations. A recent outbreak of coffee leaf rust in the region was likely exacerbated by climate change.  The fallout from that plague combines with the recent collapse in global coffee prices to spur desperate farmers to give up."

How these Reasons for Migration Should Inform our Thinking

I have highlighted some important summaries and information points from a handful of credible sources.  Bear in mind, however, that summaries describe broad trends, but hide important human details.  Every killing, every instance of extortion, every natural disaster, every painful aspect of material deprivation is a substantial harm to individuals and communities.  Human beings, like you and me.  It is easy to breeze through summaries of human rights reports with a certain feeling of somber distance.  But we must not forget that the decision to migrate north is not one that people - especially parents with children - take lightly.  It behooves us to try and put ourselves in the shoes of people who make the perilous trek through Mexico, to try and understand why families would assume such risk for a hostile reception by U.S. authorities.

I shouldn't have to say this in the 21st century.  Our morality should be evolved enough to think in these terms.  Yet this most basic of thought exercises is conspicuously and violently absent from the minds of the President and his administration.  It has been lacking in past administrations as well, but the Trump administration has taken this callousness to new levels.  Instead of addressing southern border migration as a humanitarian crisis requiring a compassionate and well-crafted response, Trump and his associates have systematically dehumanized people in need, conflating them with criminals and attacking them on racist terms.  Tearing families apart in detention - a practice that continues - is a heartless and cruel act unworthy of a country that so frequently touts its moral foundations.  It is a deliberate step backwards in human progress, based on false claims to bolster a corrupt and hollow administration.  We need to critically examine our national conscience.  It is incumbent upon us to lay claim to a sense of shared humanity with people in need; to reject cruelty; and to craft creative and intelligent solutions to complex problems.

*The federal fiscal year runs from October 1- September 30

Saturday, March 9, 2019

New Article Published: “Human Rights Conditions: What We Know and Why it Matters”

By Patrick Finnegan

I am delighted to announce that the current issue of the Minnesota Journal of International Law (Winter 2019) is carrying an article that I co-wrote with David Weissbrodt, Regents Professor of Emeritus at the University of Minnesota Law School.  Professor Weissbrodt is my long-time employer and a mentor, so I am deeply honored to share a byline with him.  Our article explores the causal research on human rights violations and compliance.  The Abstract is reproduced below (footnotes omitted).  The entire article can be accessed here on the Minnesota Journal of International Law website.


Human Rights Conditions: What We Know and Why it Matters
David Weissbrodt and Patrick Finnegan


It may be impossible to understand the cause of every human rights violation. Causal research is a useful endeavor, however, as it sheds light on the conditions that produce human rights violations and compliance. Such knowledge can help improve the effectiveness of human rights advocacy strategies to target and influence these conditions. This survey examines four broad themes: (A) Government Behavior and Structure; (B) Armed Conflict; (C) Economic Factors; and (D) Psychological Factors. The findings by scholars and practitioners are myriad and complex, but some general trends are observable. Democratic governments tend to better protect a broad range of human rights, especially when paired with an independent judiciary. Democratization may involve short-term disruption but has long-term payoffs in respect for human rights. Repression in weak states heightens the likelihood of civil wars. Armed conflict, in turns, tends to generate the most grave human rights abuses. Economic factors are deeply intertwined with the full spectrum of human rights in two key ways: (1) the distribution of resources (economic, social, and cultural rights); and (2) economic structures and incentives that may encourage repression. Individual psychological factors, such as the tendency to obey authority, group identity, and exclusionary ideologies can lead people to commit atrocities, especially in the context of armed conflict. 

Following this overview, the article discusses some of the controversies and challenges in human rights research. These issues include: differences in qualitative and quantitative methods; surveillance bias in statistical work; and the difficulty of comparative work. The article then explores theories of how international human rights norms influence state behavior and how this influence affects domestic conditions. The article concludes by reiterating that causal research can improve advocacy, and adds that it may serve a persuasive function as well. Causal research can help human rights advocates make the case for policies that contribute to the promotion and protection of human rights. It can do so by establishing the credibility of policy proposals, demonstrating that advocates understand the problems they seek to address.

Monday, November 5, 2018

This Election Matters, but it is not the Last Word

By Patrick Finnegan

Here is what I want to say before the U.S. 2018 midterm elections tomorrow: yes, this election is important. As interim elections go, it is arguably more important than most in recent history. But regardless of the outcome, we who believe in human rights and the inherent dignity of all people can, should, and must continue to fight for those invaluable principles. 

The Trump Administration and the Republican Party have demonstrated an extraordinary disdain for truth, justice, inclusion, and basic human decency. It is our moral imperative to fight for these principles up to, on, and beyond Tuesday. As Dr. Martin Luther King declared, “the arc of the moral universe is long, but bends toward justice.” I believe this is true, but we must actively do the bending. The U.S. election of 2016 revealed that xenophobia, fear, and racist mythologizing are still more powerful in our country than many of us hoped. But it also revealed that structural mechanisms, election tampering, and other factors in our imperfect democracy that can thwart the popular will (as you will recall, Trump lost the popular vote despite his electoral college victory). Those mechanisms are still at work. 

We may be able to defeat these obstacles through massive turnout in the short-term. In the long-term, however, what is most important is a continuous and unrelenting commitment to a vision of a just, fair, and inclusive society where people are free from persecution because of their race, sex, sexual orientation, gender identity, religion, country of origin, etc.; where people are committed to leaving behind a better and more sustainable world for their children; where basic factual truths matter and inform policy rather than serve as objects of denial, derision, and ridicule; where compassion and empathy are held in great esteem rather than regarded with dismissiveness and contempt. This is the kind of future I want for my child and for which I will fight in whatever small capacity I can. I know I’m only a drop in the bucket. Taken in the singular, we all are, I suppose. But add together many drops and suddenly there’s a full bucket. I hope you will join me.

This post represents the opinion of the author in his personal capacity and should not be construed as the official position of any agency, organization, or contractor by which the author is presently or has been previously employed.

Thursday, July 19, 2018

We Need to Look at Gun Deaths as a Public Health Issue

By Melissa and Patrick Finnegan

In the wake of a number of recent school shootings – including the Marjory Stoneman Douglas High School shooting in February in Parkdale, Florida – we saw the re-emergence of gun policy in national headlines and social media.  In some ways, developments took a familiar turn; exasperated members of the public call for better gun regulation while gun-rights advocates – led by the National Rifle Association – argue that such measures are futile and infringe on individual rights. In the estimation of the latter, the only way to protect against school shootings is more armed personnel in schools.  The difference this time is that student survivors from Marjory Stoneman Douglas High School launched a campaign to reform gun policy that has the potential to become a sustained national movement.

We believe that this is the time to have a discussion about gun deaths and public policy, specifically from the public health perspective.  There is a qualitative factor in gun deaths that make them a public health issue.  The purpose of guns is to kill.  Whether it be in the context of animal hunting or use against another human being, the main purpose of a gun is to kill efficiently.  How a gun is used is, of course, integral to the discussion.  The fact remains, however, that even when utilized carefully and responsibly, a gun is a dangerous instrument, the use of which carries an elevated risk of injury and death, both to the self and to others.

To understand the effects of guns on U.S. society, we need to confront some basic truths.  Guns are ubiquitous in the U.S.  As civilian populations go, U.S. residents are heavily armed; with 42% of the world’s civilian-owned guns (see chart 2), our rate of ownership far exceeds all other countries in the world, including the runner up, Yemen, which is in the midst of a brutal civil war.  Gun related deaths average approximately 33,000 a year in the United States.  In our home state of Minnesota, 432 people died by guns in 2016, more deaths than were caused by opioid use (395) or traffic crashes (392).  Facts like these make gun deaths a public health concern.  While the majority of these deaths are suicides, the U.S. gun homicide rate still far exceeds any other high-income country (see charts 1 and 6). 

Although it may be tempting to assume that more crime explains our higher homicide rate, it turns out that U.S. violent crime rates are comparable to that of peer countries; the key difference is that assault in the U.S. is more fatal because it more often involves guns.  This holds for suicide attempts too (see charts 10-12); guns are far more effective tools of suicide than suffocation, poisoning, cutting, or other methods.  While “guns don’t kill people, people do” may be a popular slogan, it would be more apt to say that “guns don’t kill people, but they make it much easier.” 

With all of this in mind, we advocate approaching guns from the standpoint of public health.  As a society, we regulate access to hazardous things for health reasons all the time.  If it becomes clear that current regulations are inadequate in curbing preventable deaths, we attempt to change policy. Take the issue of opioids: the over-prescription of these drugs has led to widespread addiction-related deaths.  Although there are laws on the books that restrict access to opioids, these laws have failed to prevent a public health crisis.  As such, we as a country are now in the midst of a national discussion of which policies will be most effective in reducing opioid deaths.  Many of the proposals on the table involve restricting how often opioids are prescribed.  Opioids have their purpose in medicine, even when used with circumspection, but they still pose an elevated risk to patients. 

In addition, we restrict an individual’s use of a substance or product if there is a high risk of harm to the self or others.  Take alcohol and driving for example.  Alcohol use is regulated in our home state of Minnesota (as it is elsewhere): you have to be a certain age to purchase alcohol and providers (aka, bartenders) can choose not to serve you if you appear to be inebriated.  As a community, we have decided that – in this instance – limiting an individual’s alcohol consumption is both appropriate and desirable in the name of public safety.

It would paint an incomplete picture, however, to only talk about restricting access to opioids and alcohol without examining the underlying issues that lead to their abuse.  Family histories of addiction or mental illness, as well as poverty and other social determinants of health, are critical factors to understanding widespread alcohol or opioid abuse.  And so it should be when considering gun policy.  Our main point is that we must have a variety of policy tools at our disposal to address complex public health problems. 

Reducing gun deaths will require long- and short-term policy solutions, but also cultural change in how the U.S. public, broadly speaking, views guns.  We will briefly list some policy proposals we believe should be adopted or considered to reduce gun deaths.  This list is not exhaustive, nor is it meant to be definitive.  (This is a blog entry, after all.).

Firstly, we need good quality research on gun violence to craft good policy in the long term.  The Centers for Disease Control was only recently relieved of a ban on studying the causes of gun deaths.  In our home state, Minnesota Statutes, section 144.05, subdivision 5, prevents the Minnesota Department of Health from even collecting statistics on gun ownership.  Information on gun ownership can help inform public policy regarding – for example – the safe and secure storage of firearms, including the separation of ammunition.  Additionally, public policy would benefit from deeper research into the root causes of gun violence, including social determinants, public attitudes about violence, and mental health concerns.  As such, we advocate (a) the immediate reversal of Minnesota’s research prohibition, and (b) investment in health-based research on the causes of gun violence.

When discussing potential policy options, we should also distinguish between homicides and suicides.  In terms of homicide, it is also useful to separate mass shootings from “ordinary” murders. In the case of most ordinary murders, the perpetrator and the victim(s) know each other; material advantage or interpersonal dispute are the primary motives.  Mass shootings, while often involving revenge-based motivations, are less discriminate.  As such, the tools of each type of homicide are a bit different.

The AR-15 has become the preferred tool of mass shooters in the U.S.  As detailed in Tim Dickinson’s exposé on the AR-15, it was originally a military weapon designed to kill with maximum effectiveness.  Its high-velocity rounds and rapid rate of fire enable it to kill many people in a very small amount of time, even in its civilian iterations.  It is substantially more lethal than a 9mm handgun.  Additionally, its mass marketing in the past decade, coupled with the 2004 expiration of the assault weapons ban, has made it widely available.  Bump stocks – which increase the weapon’s rate of fire – and other customizable options have enabled it to become an even deadlier weapon.  As such, we advocate the re-institution of the ban on civilian ownership of the AR-15 and other assault weapons, as well as the accompanying accessories that increase the lethality of such weapons.  President Trump’s executive order to ban bump stocks seems like a step in the right direction, but it is still unclear if that policy will stick.

To be clear, we do not advocate a total ban on the possession of all firearms.  We do, however, believe that there should be universal background checks, as well as stricter permitting, licensing, and storage regulations.  The gun show loophole is a well-known issue that enables the purchase of guns without a background check at such events, which makes it easier for persons with criminal records to legally acquire firearms.  According to recent survey data, most people – including most NRA members – support universal background checks on all gun sales.  A number of studies strongly suggest that robust background and gun storage rules checks curb intimate partner killings and accidental child deaths.  In Switzerland, the country with the world’s third highest rate of gun ownership, persons who wish to purchase personal firearms undergo long background checks.  Owners must be licensed to possess semiautomatic weapons, rifles, and pistols, as well as keep them unloaded at all times except during immediate use.  While Switzerland’s rate of gun deaths is the highest in Europe, it is still one third of the U.S. rate. 

Connected to background checks and permitting, we also advocate the further exploration and adoption of Extreme Risk Protection Order policies.  These orders, effectively a restraining order for guns, enable the authorities to confiscate the firearms of persons deemed to be a violence or suicide risk.  Such laws should be carefully crafted to respect due process, of course, but also executable in a timely fashion to prevent imminent violence. 

One issue that gets brought up time and again after a mass shooting is mental health.  One common argument is that a more robust and accessible mental health system will curb gun violence.  When discussing the role of mental health in gun deaths, it is critical to distinguish between homicides and suicides.  Untreated depression is one of the main causes of suicide, so enhanced mental healthcare could very well have a positive effect.  If the ultimate goal of the public health view is to reduce all gun deaths, then policies that improve access to and the quality of mental healthcare must be a priority.

In terms of mass shootings, however, there is little convincing evidence that mental health interventions would have a positive effect.  As Olga Khazan wrote in The Atlantic in the wake of the Las Vegas shooting last year, “While improving access to mental health care might help lots of suffering Americans, researchers who study mass shootings doubt it would do much to curb tragedies like these. According to their work, the sorts of individuals who commit mass murder often are either not mentally ill or do not recognize themselves as such. Because they blame the outside world for their problems, mass murderers would likely resist therapies that ask them to look inside themselves or to change their behavior…very little violence is actually caused by mentally ill people.”  With this in mind, we advocate for investment in the mental healthcare system, with an emphasis on accessibility, especially for lower-income persons, while acknowledging that this policy intervention would most likely be effective in lowering suicides rather than homicides.  Additionally, it’s important to ensure that efforts to address mental health in connection with firearms do not maintain or exacerbate stigmas associated with mental health disorders.

While conventional mental health services may not prevent mass shootings, fostering a culture of inclusion and psychological support could prevent many school shootings.  As an NPR story on public approaches to school climate notes, “the very kids who bring weapons to school are more likely to report being bullied or threatened themselves. They may be fearful of gang violence and feel a need to protect themselves on the way back and forth to school.  Or, they may be individually ostracized and aggrieved.”  With this in mind, we advocate evidence-based school policies that stop bullying and discrimination, as well as establish student trust in school as an abuse-free environment.  We do not support arming teachers or other school personnel. And we cannot lay this burden on students alone, as the “walk up” movement has espoused.  Victims of school shootings should not be further victimized by accusations that if they had only been nicer to their fellow students, this tragedy wouldn’t have happened.  Anti-bullying and anti-discrimination efforts are important, but cannot solve this problem on their own.

The political feasibility of many of these policy proposals will depend on a number of factors, including public support and the political mobilization of reformers.  The political forces that oppose further – or any – regulation on guns have tended to prevail in the aftermath of previous mass shootings.  We believe in the possibility that, this time, things will be different.  We hope that the mobilization initiated by the Stoneman Douglas High School survivors continues to gain momentum.  Sustained engagement by reformers, both in advocacy and electoral politics, could turn the tide.

This post represents the opinion of the authors in their personal capacity and should not be construed as the official position of any agency, organization, or contractor by which the authors are presently or have been previously employed. 

Wednesday, January 10, 2018

Religion and Discrimination: Thoughts on the Masterpiece Cakeshop Case

By Patrick Finnegan

As the U.S. Supreme Court prepares to rule on the case of Masterpiece Cakeshop, Ltd. v. Colorado Civil Rights Commission, it is important to consider the socio-political implications of the ruling.  The facts of the case are essentially thus: a gay couple approached Masterpiece Cakeshop in Lakewood, Colorado, about a wedding cake for their upcoming marriage ceremony and the proprietor, Jack Phillips, refused to serve them, citing his religious convictions opposing gay marriage.  Colorado’s Civil Rights Commission ruled that Mr. Phillips had violated Colorado’s prohibition on anti-LGBTQ discrimination.  Mr. Phillips, with the support of the Alliance Defending Freedom, took the case to federal court.

I think it is useful to step back from the legal formalities for a moment and consider the political and moral question involved in the Masterpiece Cakeshop case.  If sexual orientation is a question of inherent identity and not something that one chooses, then discriminating against people on that basis is morally equivalent to discrimination on the basis of race or sex.  It is still a U.S. political norm – however contested and unrealized – that discriminating against someone on the basis of their inherent identity is morally wrong.  A social conservative might respond that LGBTQ behavior is harmful and is therefore a legitimate basis for different treatment.  There is, however, no credible evidence that LGBTQ persons pose any threat to society because of their sexual orientation or identity.

A social conservative may also object to the premise that LGBTQ identity isn’t a choice, arguing that people choose to engage in “unnatural” behavior; therefore, refusing to serve them is a response to religiously objectionable behavior rather than inherent status.  Even if, for the sake of argument, we grant this premise (I don’t, but bear with me), then the issue is that religious objections to certain behaviors – even if tangible harm is unproven – constitute a valid reason for a vendor to treat one set of customers differently than others.  If that is the case, then the same logic could be applied to political affiliation or ideology.  Let’s say, for example, that I am a storeowner who has strong religiously rooted beliefs in non-discrimination and supporting the poor.  Such convictions are not uncommon among people of faith who lean left.  If I could make a coherent case that Republican policies violate my sincerely held religious beliefs – for example, by promoting discriminatory measures against LGBTQ persons – could I not make a coherent moral argument that I should not have to serve Republican customers because of what I believe to be their harmful behavior?  After all, political affiliation is a choice.

While there is certain moral logic to this line of reasoning, it runs into a legal obstacle: sexual orientation is not a federally protected status, unlike sex, race, and political association.  As I am not a lawyer, I will leave the legal intricacies of the Masterpiece Cakeshop case to those who are, but a quick overview shows where the gaps lie that may be filled by the Court’s decision. 

The Supreme Court’s ruling in Obergefell v. Hodges (2015) cited the Fourteenth Amendment’s equal protection clause to overturn state-level prohibitions on gay marriage.  The Fourteenth Amendment was also the basis for the Court’s 1967 ruling in Loving v. Virginia, which abolished state bans on interracial marriage.  The hitch here, however, is that the precedent of Obergefell is limited to state government entities, which regulate and issue marriage licenses, and thus does not extend to private businesses. 

While “places of public accommodation” are prohibited by the Civil Rights Act from discriminating against customers on the basis of race or sex, the Act does not specifically address sexual orientation.  It is possible – but not certain – that the Court will extend the meaning of sex discrimination to include sexual orientation and identity.  The Equal Employment Opportunities Commission has done so in regard to Title VII prohibitions on sexual discrimination.  The EEOC ruling, however, only applies to employers and not to customers. 

In this sense, then, the ruling in Masterpiece Cakeshop will break new legal ground.  The Masterpiece Cakeshop ruling will decide if the private right to religious freedom extends beyond personally held beliefs and into the public marketplace.  If the Supreme Court rules in favor of Masterpiece Cakeshop, it would effectively override key civil rights protections for LGBTQ persons in states across the country, protections that currently enable equal access to the marketplace.  Although sexual orientation is not a federally protected class, it is a protected class in Masterpiece Cakeshop’s home state of Colorado.  The Minnesota Human Rights Act also protects LGBTQ status in my home state.

Another set of questions that would be raised by a ruling in favor of the plaintiff: what constitutes “creative expression” in the marketplace and would, therefore, hypothetically enable religiously based discrimination against LGBTQ customers?  To what extent is wedding cake creation art – and thus protected First Amendment speech – and to what extent is it food service?  If wedding cake creation is an art, would a similar religious exemption apply to any caterer who views their food service as an art as well? Would a “sandwich artist” in a deli be able to invoke religious conviction to deny a sandwich to an LGBTQ couple?  What limits, if any, would there be on the ability of religiously conservative business owners to refuse service to LGBTQ persons by claiming that ordinary sales and services count as protected artistic expression?

A ruling against the plaintiff could have a wide-ranging or limited result.  For example, if the Supreme Court opts for a limited ruling, it might uphold the state of Colorado’s right to designate LGBTQ status as a protected class under state law.  A more expansive ruling may extend federal civil rights protection to LGBTQ persons in places of public accommodation and explicitly prohibit private businesses from discriminatory practices on that basis.  The Supreme Court made a similar ruling in regard to race in Heart of Atlanta Motel, Inc. vs. United States (1964). 

It remains to be seen what the Supreme Court will do.  If the Court rules in favor of Masterpiece Cakeshop, it would establish a tragic setback for LGBTQ rights in the United States.  A partial long-term legislative solution to cases like Masterpiece Cakeshop is for LGBTQ status to become a federally protected class, akin to race and sex, and enforced as such.  This change seems unlikely at the congressional level in the near term, but is certainly possible in the long-term.  In the meantime, we await the Court’s decision.

Friday, October 20, 2017

Me Too

By Melissa Finnegan


I know, I know, I’m late to this party.  I’ve seen the hashtag go by and each one has resonated with me, but I didn’t feel the need to join in myself.  I've never been a victim of sexual assault (thankfully) and I didn’t feel like any harassment I’ve experience really warranted adding my voice to the chorus.  Because, in many ways, I’ve stopped recognizing it as harassment.

Yesterday, as my husband Patrick and I were wrapping up our day, he was watching clips from The Daily Show while I put away some painting supplies.  On my way to the basement I heard a female correspondent say “When it comes to sexual harassment, every day women are going through an obstacle course.  It’s like a ‘tough mudder,’ but instead of mud, it’s dicks.”  And it hit me.  Yes.  Yes we are.  That statement reminded me of an event that I had honestly forgotten about that had happened that morning.  At 8:30 am on a Wednesday, on my way to work, while I was wearing a conservative skirt and sweater, a van full of guys started hooting and hollering at me.  I rolled my eyes, kept going, and forgot about it.

And that’s how insidious it is.  It becomes a normal part of your day.  The constant navigation of the obstacle course.  Ignore the guys in the van.  Scan the men on the bus, looking for a threat.  Be hyper-aware of who’s around you at the bar.  It’s a constant background noise of vigilance that is so ingrained in so many women, we’re no longer consciously aware that we do it.

It’s even worse than that.  The fact that it’s so commonplace means that subtle escalations don’t seem to be that bad.  Get used to the hollering on the street and, suddenly, having your butt grabbed in a bar or while walking up a staircase isn’t that surprising.  And you shrug it off.  A guy at work gives you a full body look-over and leers, and later you laugh about it with your friends.  And on, and on, and on.  Each increasing level of harassment or borderline assault is less shocking because all the “lower level” harassment has just become so normal.

And it starts young.  I recall a friend of mine recounting how she watched older teenagers checking out her 12-year old.  Twelve.  And I wasn't surprised by that because, yeah, that’s when I seem to recall my first awareness of this part of reality as well.  That’s when I first started to learn how to navigate the obstacle course.

It’s important that we remember and tell these stories. Because the men in our lives, the good men, who would never dream of grabbing someone or yelling at them from a car, often don’t understand how pervasive this is.  Poor Patrick, the first time he was with me while someone drove by and cat-called me, he was so floored.  He was absolutely shocked that people actually do that.  And all I could do was look at him and say, “yeah, this happens all the time.”

So yes, #metoo.  #AllOfUs.  This is the world we live in and the world we’ve come to accept.  It’s a normal part of life that we don’t think about until someone stands up and says, “hey, this is not ok.”  Until we all stand up and say “IT'S NOT OK.”

This post represents the opinion of the author in her personal capacity and should not be construed as the official position of any agency, organization, or contractor by which the authors are presently or have been previously employed.