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The Humpty Dumpty Court

in Column/Jonathan Lange

By Jonathan Lange. Columnist, Cowboy State Daily

Bostock v. Clayton County, the Supreme Court’s latest adventure in legislating, has already seen enough compelling analysis to raise some troubling questions. Here’s a quick overview.

Justice Kavanaugh’s dissent showed that the majority did not interpret Title VII of the 1964 Civil Rights Act. Rather the Court rewrote Title VII, inserting language that multiple previous congresses decidedly rejected. This is a “transgression of the Constitution’s separation of powers,” he wrote.

The dissenting opinion of Justices Alito and Thomas was stronger still. “There is only one word for what the Court has done today: legislation.” It emphasizes that our elected representatives are currently considering H.R. 5, the so-called “Equality Act,” which would amend the very law that Bostock rewrote. But rather than let the elected legislators vote, six unelected justices disenfranchised 360 million votes cast in three separate elections.

The majority not only arrogated this task to itself, but did it in the laziest way possible. It rewrote a single line of the U.S. Code that would affect 167 different provisions of federal law—but refused to reconcile the contradictions it created.

Among the 167 questions left unanswered are whether men’s access to women’s dressing rooms and sports leagues will be mandated. Whether female students and women escaping from domestic violence will be forced to share dorm rooms and living quarters with men, it didn’t say.

Patients will sue doctors both for removing healthy sex organs and for refusing to remove healthy sex organs. The majority could not be bothered to tell doctors which side will win. These, “are questions for future cases,” it said.

The evasive majority thus refused to commit itself to the logic of its own opinion—for good reason. The opinion’s fatal flaw is an equivocation in the opening paragraph.

Gorsuch wrote, “An employer who fires an individual for being homosexual or transgender fires that person for traits or actions it would not have questioned in members of a different sex. Sex plays a necessary and undisguisable role in the decision, exactly what Title VII forbids.”

This framing of the question assumes that a man’s right to present as a woman is hindered by the unalterable fact of his sex—he can’t help it if he’s a man. Therefore, the Court must come to the rescue and forbid an employer from taking his sex into account.

Gorsuch’s foundational claim that sex is unalterable is heretical to gender theorists. When J.K. Rowling recently said that, “sex is determined by biology,” the outrage mob wanted her canceled.

How Justices Kagan, Breyer, Ginsburg and Sotomayor could have signed onto this opinion without incurring the wrath of the same mob should be puzzling.

But, of course, no one is surprised. In our brave, new world, logical inconsistencies are par for the course. In fact, Gorsuch is not the first to opine that “sex discrimination” includes any legal recognition of the unalterable fact of sex.

The theory has been around since 1975, when he was in third grade. Moreover, his fellow Justice, Ruth Bader Ginsburg, has spent 45 years arguing against it!

Gorsuch asserts that this self-contradictory opinion is driven by strict and principled “textualism.” But he never once uses the word, “originalism.” It would be better described as “pre-textualism,” because he has no intention of determining the original meaning of the text.

First, neither “homosexual,” nor “transsexual” is, in fact, in the text. Second, multiple legislators over the course of 45 years have proposed changes in the text precisely because the text does not address homosexuality and transsexuality. Third, his concurring justices, Kagan, Breyer, Ginsburg and Sotomayor, have a long and proud history of defying textualism at every turn.

I am not pointing out anything that the majority didn’t already know. They are extremely smart and capable lawyers. Doubtless, Alito, Thomas and Kavanaugh have been reminding them of the logical, constitutional and legal problems for the past several months.

They knew full well that their opinion would require decades of litigation costing millions. They knew that countless doctors, churches, businesses and charities would be sued into oblivion.

They also could have explicitly limited Gorsuch’s theory to Title VII alone. But the majority both refused to rule out any of the 167 new applications, while also refusing to admit that they would all logically follow.

This is now a Humpty Dumpty court. “When I use a word,” Humpty Dumpty said, in rather a scornful tone, “it means just what I choose it to mean—neither more nor less.” “The question is,” said Alice, “whether you can make words mean so many different things.” “The question is,” said Humpty Dumpty, “which is to be master—that’s all.”

The Bostock majority is now that master. That is all.

Jonathan Lange: The Seattle Disaster and How it Applies to Wyoming

in Column/Jonathan Lange

By Jonathan Lange. Columnist, Cowboy State Daily

CHOP, formerly known as CHAZ, the Capitol Hill Autonomous Zone, surrounds the vacant and boarded up East Precinct headquarters of the Seattle Police Department. It is six square blocks of banana republic planted in the middle of an American city.

On June 8, 2020 after several continuous days of turmoil, a mob began to throw bricks, bottles and homemade bombs at the men and women who were there to protect and serve. Many were hospitalized. Still more were injured. The mob’s threats to torch the precinct headquarters prompted police to abandon the area.

Thriving communities are the product of building, not tearing down. For families to live together in peace and harmony, hundreds of institutions and millions of moving parts need to be painstakingly and lovingly cultivated. It is possible for a community to survive the sudden collapse of an important institution. But that is an injury it must work to heal. It cannot be the constituting principle of the community.

By emptying the East Precinct, CHOP did not rid themselves of the police, they simply established a new, untrained and ununiformed police department. In so doing, they erected barricades that disrupted commerce with the outside world.

Of course, the armed men manning the barricades will be quick to assure us that all the vehicles of community and commerce are free to enter the zone. But will the utilities themselves and trucks supplying commerce be willing to risk equipment and personnel in an area controlled by an untested and unlawful police force?

The buildings and businesses that support a community are only made possible by trusting relationships forged over decades. No father or mother wants to raise children in a community where neighbors corrupt their children. No shop owner wants to do business where his shop may be picked clean at the whim of a mob.  No police officer will be willing to risk life and limb to protect and serve neighbors and shop owners if he is targeted by revolutionaries and abandoned by city government.

That is why education, not law enforcement, remains the backbone of every community. Education is not simply the imparting of a body of knowledge. Properly speaking, it is the raising of good citizens. Technological know-how and the ability to spout the latest politically correct mantra are worthless in themselves.

Unless children are raised up to be virtuous, community is not possible. When these foundations are eroded, a community may survive for a while, but there will come a tipping point. Communities that fail to inculcate prudence, justice, fortitude, temperance, faith, hope and love will inevitably collapse into chaos.

The occupiers of Seattle are staring into this abyss today. They seem, instinctively, to know the value of education. The two most visible activities of the occupiers are digging up the park for “guerilla gardens,” and setting up “teach-in tables.” These teaching stations offer crash courses in transformative justice and other progressive values.

Whether hasty indoctrination into social justice theory can replace the virtue that built Seattle is doubtful. But at least someone is recognizing the truth that community starts by inculcating the virtues.

That raises questions about our own communities. Are we still teaching the virtues that built Wyoming? Or, is progressive indoctrination stripping our children of the education needed to thrive? Institutions, buildings and businesses built by past generations may survive by pure inertia. But if we do not constantly renew freedom’s foundations, they will not survive for long.

Good intentions cannot redeem bad ideas. Central planning cannot make up for the suppression of common sense. The sudden appearance of a banana republic in Seattle ought to put every American citizen on alert. President Ronald Reagan famously said, “Freedom is never more than one generation away from extinction. We didn’t pass it to our children in the bloodstream. It must be fought for, protected, and handed on for them to do the same.”

Wyoming’s people know this instinctively and work hard to raise their own children with the virtues that support freedom. What they must learn from events in Seattle is that the transmission of freedom to the next generation is a cooperative endeavor. It cannot be done alone in a bunker.

It involves not only the home, but the school; not only the school, but the library; not only the library, but Main Street. Lawyers, doctors, ranchers, rough necks, miners, mothers, teachers and preachers all have a unique and vital contribution to make in the education of a free society.

Hard work and self-sufficiency are the necessary foundation of freedom. But unless free citizens work together to build communities, they will be overwhelmed by the mob when a “Capitol Hill Autonomous Zone” comes to Cheyenne. Now is the time to come together. Now is the time to build.

Jonathan Lange: Torrington Court Case Says Unborn Babies Are Not Persons

in Column/Jonathan Lange

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By Jonathan Lange, Cowboy State Daily columnist

Clarissa was born on the bathroom floor, weighing only three and a quarter pounds. She arrived six weeks premature, induced by an overdose on methamphetamine, cocaine and, possibly, heroine. Her maternal grandmother scooped up the tiny baby and helped her take her first breaths.

An ambulance rushed Clarissa to the NICU where she was treated for neonatal abstinence syndrome (NAS). She was withdrawing from the illegal drugs shared with her mother throughout her gestation.

Clarissa had her struggles, but by the love of her foster family and the skill of her doctors, she pulled through. Her rough entry into the world is now a story she has a passion to share. This bright and strong Wyoming woman knows that she speaks for others, many less fortunate. Some are still born. Others die unattended. Survivors sometimes have life-long birth defects.

Statistically, a child is born with NAS every fifteen minutes. The tragedy of America’s addiction epidemic is that it affects not only men and women, but tens of thousands of unborn persons every year. The unjust injury and death inflicted upon people with no say in the matter, cries out for justice. We, as Wyomingites, have a duty to intervene for their protection.

Exercising that duty, the State of Wyoming recently filed charges against a Torrington mother. On August 18, 2019, hospital employees called Child Protective Services after a newborn tested positive for methamphetamine. When police tested the mother, it was clear that the baby was exposed in utero. “She was charged with felony child abuse and delivery of methamphetamine to a minor,” according to the Torrington Telegram.

But, on March 26, 2020, her charges were dismissed. Public Defender David MacDonald argued that Wyoming’s statutory language does not specifically designate an unborn Wyomingite as a “child.” Therefore, the charge of delivering meth to a minor child must be dismissed. He further argued that it does not specifically call a pregnant woman a “mother.” If not a mother, she cannot be a “parent” in the eyes of the law. Therefore, she cannot be charged with parental abuse for action taken before the birth.

The Torrington Telegram headlined the story, “Charges dropped; attorney proves a fetus isn’t a person, according to state statute.” Actually, MacDonald is more modest about his achievement. Charges were dismissed when the state’s prosecutor failed to answer his brief. By default, the Eighth District Court found that the statutory language fails to stipulate that an unborn child is a person, or that a pregnant woman is a mother.

This ought to alarm every pregnant woman and every expectant couple in the state. By denying that a fetus has any legally recognized parents prior to birth, the court not only exonerated one mother of parental responsibilities, it also wiped away the corresponding parental rights for all parents.

Anybody from a medical worker, to a state agency, to a total stranger can interfere with the parent child relationship before the child is born. Neither parent has parental standing to advocate for the child.

As for the unborn child, the Eighth District Court has just wiped away any legal protection that the child formerly had under Wyoming law. If a child has no right to be protected from illegal and harmful drugs, she also has no right to be protected from murder. Should a boyfriend kill the child through battery, or drugs, the state has no authority to charge him with murder.

During the 2019 general session, Senator Lynn Hutchings introduced the Unborn victims of violence act (SF 128) to repair this injustice in Wyoming law. It would have provided statutory language that allows Wyoming to prosecute the murder of an unborn child.

Sadly, the bill was heavily amended in the Senate Judiciary Committee. Every reference to “unborn child” was replaced with “fetus,” and every reference to “mother,” was replaced with “pregnant woman.” The bill ultimately failed. It remains legal in Wyoming to murder an unborn child against the will of the mother.

Now, the Torrington case has shown that it is likewise legal to deliver harmful drugs to an unborn child. It has exposed the legal fiction that children can be adequately protected without legal recognition of the parent-child relationship in the womb. The Eighth District Court has now made clear that nothing short of a legislative fix will address the problem.

For Wyoming, this also means that state law fails to protect what Wyoming’s Constitution guarantees. The Declaration of Rights, paragraph 2 of the Constitution of the State of Wyoming stipulates “In their [the people’s] inherent right to life, liberty and the pursuit of happiness, all members of the human race are equal.”

Equal protection for life in Wyoming is not affected by any subjective stage of development or subcategory of human being. Regardless of whether a member of the human race may be dehumanized with terms like “embryo” and “fetus,” or humanized with words like “child” and “person,” the Constitution recognizes equality for “all members of the human race.”

In recent centuries, deeply anti-human “personhood theories” have sought to separate “human beings” from “persons.” By this sleight of hand, they have justified slavery, the Jewish holocaust, and other racist atrocities.

Wyoming’s Declaration of Rights, written after the war to free the slaves, deliberately side-steps the tainted terminology of “personhood,” giving equal protection under law to all members of the human race without regard to any discriminatory and undefined distinction between persons and non-persons.

The court should have recognized that the language of personhood theories are not only foreign to the Wyoming Constitution, they were explicitly rejected. The state’s prosecutor should have defended the Constitution’s intent to avoid the vagaries of personhood theory and stick with clear, provable statements.

The Torrington case highlights the failure of Wyoming law to adequately guarantee the protections promised in the Wyoming Constitution. Clarissa’s life reminds us that this failure is not merely theoretical. It causes tangible harm to real people with lives worth protecting.

It is past time for Wyoming’s executive branch, judicial system, and legislators to enact and enforce laws that give equal protection to every member of the human race as the Constitution expressly requires.

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Jonathan Lange: Trump Executive Order Supports Free Speech In USA

in Column/Jonathan Lange

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By Jonathan Lange, guest column

“Free speech is the bedrock of American democracy.  Our Founding Fathers protected this sacred right with the First Amendment to the Constitution.  The freedom to express and debate ideas is the foundation for all of our rights as a free people.” These are the opening words of Executive Order on Preventing Online Censorship, signed be President Trump on May 28, 2020. 

The Associated Press used this as another opportunity to gaslight the American people. They characterized the order as “challenging the lawsuit protections that have served as a bedrock for unfettered speech on the internet.”

Actually, the lawsuit protections written into the 1996 Communications Decency Act (CDA) were originally written “to restrict free speech on the internet,” according to the Electronic Frontier Foundation. If the AP mischaracterizes the Executive Order so badly, we should set the record straight.

In 1996, the Internet was still in its infancy. Netscape was the browser of choice and the fastest dial-up modems were operating at a whopping 33.6 kilobytes per second. and were among the first service providers to let a web user build his own home page. Others soon followed. These interactive computer services became the precursors of today’s social media.

Unlike a newspaper, where every word and picture had to be specifically approved by the editor, this budding technology allowed content to be published without the oversight of a general editor. This was a revolution in the free flow of information. It was also an opening for more sinister pursuits.

Disgusting, indecent and obscene words and pictures could be uploaded just as easily as family photos and decent content. The unfettered use of user-generated content threatened to poison the Internet and drive away anyone who did not want to be assaulted by obscenities and lewd conduct. Unless something was done, its power would be unusable for decent citizens.

As a powerful new tool for the social good, it was in the interest of the government to protect the Internet from antisocial behavior. But the owners of interactive computer services ran into a legal conundrum.

If they deleted even one obscene photo, they were no longer the operators of public bulletin boards, but made themselves editors. As such, they would be legally and financially responsible for all the content available on the platform. 

What to do? Unless free speech was fettered to keep obscenities from turning the Internet into a sewer, it would not be available to anyone. But if user-generated pages were placed under the same libel laws as traditional newspapers, those pages could be sued out of existence. Again, the Internet would not be available to anyone.

Section 230 of the CDA was written to address this problem. Its explicit intent is “(4) to remove disincentives for the development and utilization of blocking and filtering technologies that empower parents to restrict their children’s access to objectionable or inappropriate online material; and (5) to ensure vigorous enforcement of federal criminal laws to deter and punish trafficking in obscenity, stalking, and harassment by means of computer.”

Under paragraph (c) titled, “Protection for ‘Good Samaritan’ blocking and screening of offensive material,” Section 230 says, “No provider or user of an interactive computer service shall be treated as the publisher or speaker of any information provided by another information content provider” (47 USC sec. 230). 

After this comes the lawsuit protection. “No provider or user of an interactive computer service shall be held liable on account of—(A) any action voluntarily taken in good faith to restrict access to or availability of material that the provider or user considers to be obscene, lewd, lascivious, filthy, excessively violent, harassing, or otherwise objectionable, whether or not such material is constitutionally protected.”

Clearly, the intent of Section 230 is to preserve parental rights and to protect children from “obscene, lewd, lascivious, filthy, excessively violent, [and] harassing” material. Nobody ever envisioned the words, “otherwise objectionable,” to cover whatever the owner of the platform doesn’t want you to see.

It is the prerogative of print and broadcast media to disseminate, or to stifle whatever content it desires to give to or withhold from its consumers. With this right comes the responsibility to abide by decency laws and libel laws. If Facebook, Twitter, Google and the rest want these same prerogatives and responsibilities, they are welcome to have them. 

But if they do not want the responsibility of abiding by libel and decency laws, they have no business claiming the right of editors to create, stifle or alter the content that their users are generating. And yet, this is precisely what today’s social media are doing.

This is where President Trump’s Executive Order speaks. It declares, “When an interactive computer service provider removes or restricts access to content and its actions do not meet the criteria of subparagraph (c)(2)(A), it is engaged in editorial conduct.  It is the policy of the United States that such a provider should properly lose the limited liability shield of subparagraph (c)(2)(A) and be exposed to liability like any traditional editor and publisher.

The Executive Order makes no attempt to change the law. It only directs the executive agencies to give attention to applying liability protections in keeping with the entire law, not by cherry-picking isolated phrases. Thus, it directs the commerce secretary and the attorney general to petition the Federal Communications Commission to make rules appropriate to Section 230.

This provision, especially, ought to be applauded by every newspaper and cable news show in the country. Abuse of Section 230 by social media giants is a significant factor in the massive decline of traditional media outlets.

The Executive Order further directs the head of each executive agency to review the money that the federal government pays to these corporate giants. It asks for a report to be delivered to the Office of Management and Budget in the next month. The American people deserve to know how tax-payer money is spent in support of platforms that actively skew the public discourse.

The Order also directs the Federal Trade Commission and the Attorney General to look into unfair and deceptive practices of the social media giants. In May of 2019, the White House received 16,000 complaints from social media users. Many believe they were deceived. They were promised a platform to disseminate ideas, but instead were shadow banned by the very companies that promised to broadcast their content.

Twenty-four years ago the Internet had potential both to be a tremendous blessing and a terrible curse. That is no less true today. The world has jumped on an airplane that we are trying to build in mid-flight. 

Are interactive computer services (social media) free-for-all public forums? Or, are they simply electronic newspapers, with editors and agendas of their own? The Communications Decency Act has allowed these corporate giants to play both ends against the middle. They can advertise themselves as public bulletin boards, but rip down notices with impunity.

Ultimately, it will be the social media conglomerates themselves that will have to decide what they are. It is the job of the U.S. government to give them a clear choice. The Executive Order on Preventing Online Censorship, is a good step toward clarifying that choice. 

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