Tag Archives: aclu

At a crossroads for LGBT politics

Trigger warning: heterosexism, cissexism, transmisogyny

The recent politicking around a Kentucky county clerk’s refusal to provide any marriage licenses (as long as she would have to hand them out to same-gender couples) has a strangely familiar feel to it. Jim Obergefell, the titular plaintiff in Obergefell v. Hodges, gave his pen to the Human Rights Campaign to call for signatories in support of the various couples denied marriage licenses by her. It’s intriguing to note that not all of the couples involved in the suit against their county clerk are even same-gender. While the shows of support for all of them are quite kind, these are marriage-minded politics that treat the relevant needs and rights of LGBT people as an important but added on complication.

The comments on a YouTube video of one of the same-gender couples being denied their license makes it clear how peripheral their status as LGBT is within this understanding of what’s happening. Instead, as they make clear, it’s about love, or civil service standards, or almost any other reading of the situation that downplays their identities which fall outside of hetersexist and cissexist norms and creates LGBT politics that put the focus on something other than being LGBT.

2015-09-04_1319From here.

This isn’t to deny the importance of accessing among other basic civil services and rights, marriage, for LGBT people. But there’s a well-worn specificity here, that among the various legal statuses and processes, marriage is beyond central, it’s dominating. From the image conscious use of a figure in the fight to expand marriage rights to the political focus on making the use of those marriage rights as accessible as possible, the marriage centered notion of what are LGBT rights appears to have just been reborn in a post-Obergefell era with the HRC as midwife. Far from clearing the air and recasting the structure of how LGBT people will politically interact with each other and the cisgender and straight mainstream, this casts a doubt on the transformative effect of the spread of marriage equality.

It wasn’t clear that this was going to be the outcome a scant few months ago. Even the HRC itself engaged in a membership and donation drive in August that emphasized that their upcoming legal focus would be on anti-discrimination measures for LGBT people in workplaces, schools, and other spaces. Marriage was a part of their program, but it was mainly part of a broader set of rights compromised by civil discrimination with a clear indication that other forms of discrimination would likely take up a larger portion of the discussion. Securing the right to marry specifically was a distant concern, presented as one that would mostly concern electing supportive candidates rather than confronted the already elected, like Davis.

The HRC wasn’t alone in dipping a toe into a less marriage-focal set of LGBT politics. The Victory Fund, which has long fundraised to increase LGBT representation in local and state governmental bodies, sought support for two lesbian candidates for Nashville’s city council in late July. Caitlyn Jenner came out and began conversations both between trans and cis people and within the trans community about trans visibility. Over the summer she also drove a national conversation on trans athletes. I have myself been personally involved in efforts to redesign California state parental laws – which deliberately intended to make them more accessible to both married and unmarried LGBT parents.

Even on the other end of these and other issues of LGBT rights, there were the perennial debates about trans women’s legal right to use women’s restrooms and the Family Research Council began to prepare for fights around particularly workplace-focused anti-discrimination measures. The post-Obergefell terrain of both LGBT and anti-LGBT politics was vast and open to discussions that extended beyond marriage and marriage rights, and yet the HRC has apparently decided to fight the same battle once again on the same terms with the same names even.

This kind of complaint – that LGBT politics are dominated by a debate over marriage to the exclusion of other issues in large part because of the HRC’s political choices – is itself pretty stale to many LGBT people because this has been such a recurring problem. Beyond that overwhelming sense of familiarity, however, this is a structuring set of priorities within our communities. As I noted last week, part of what I was advocating for in California was that LGBT parents didn’t have to pay additional costs to parent – to conceive, to adopt, to be safe, secure, and stable families. In sharp contrast to that, David Moore, one of the people denied a marriage license by Davis, was broadcast on national news reminding her: “I pay your salary.” This echoes how he and by extension all other LGBT people are expected to financially bargain for acceptance. This specific type of marriage-focused politics seem like they’re quite capably reinforcing the idea that we should pay more to access what is a right for cisgender and straight people, and encouraging LGBT people to think in those terms. After all, that very line of thought came out of Moore’s mouth.

In short, we have been standing at a crossroads within LGBT politics. We can broaden our communities’ conversations, imagine a brighter future, and hopefully ultimately build that better world. We can have a political sense of self that moves past “I pay your salary” to one where it doesn’t matter what one pays, we’re still human and we still have rights. Or we can perpetuate what feels like little more than a remix of the same debate about marriage, with the same socio-economic implications for LGBT people, the same limits, and the same pitfalls. The rights of a mix of same-gender and male-female couples in Rowan County, Kentucky, are already being spoken for and advanced by organizations that fight for civil rights on a broader platform, namely the ACLU. Why does the HRC need to have to repeat the same priorities, the same focuses, the same conversations that lead to the same places when someone else can advance them?

As of this writing, Kim Davis’s county office has been handing out marriage licenses to the long-waiting couples. They still don’t have her signature on them, which a county official has said will be valid without that. Davis is facing jail time for refusing to perform mandatory duties to her clerk position. The fight for this specific form of this specific right for this specific license in this specific county appears to be near its end. Maybe the HRC and other LGBT organizations will have another chance to choose what they will prioritize how they will prioritize it from here on out. Maybe this isn’t a post-Obergefell world, but a post-Lund one.

This article’s featured image is of David Moore and Rowan County Clerk Kim Davis from an earlier confrontation in July, from here.

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Selling libertarianism

TW: racism, heterosexism, cissexism, sexism, classism, police brutality, appropriation

This past Veteran’s Day, the American Civil Liberties Union did something strange. They paid Macklemore to appear in an advertisement for ACLU membership – a $35 dollar card that, according to their newest representative, is a literal ticket to certain political freedoms.

There’s a number of ways of understanding this video, but let’s start with what’s happening on the surface – a musician is promoting an organization that will protect people from disenfranchisement and state policies that don’t effect him, as if they do. Following the awkwardly staged I-was-just-finishing-a-track introduction, Macklemore explains that “being beaten with a club, pepper-sprayed, and tased for expressing my political views would really slow [him] down”. He then name checks marriage being reformed to be more inclusive of queer people and regulations on cisgender women’s sexuality.

The ad is fundamentally an extension of Macklemore’s primary means of self-presenting himself – as someone who either directly experiences the difficulties a perceived audience faces or who at least deeply understands those issues. It then builds up from that an ACLU membership as a solution to those problems. The slip of paper the ACLU mails you in return for your support “lets [his] gay friends marry the hell out of each other” and apparently tells cis women “it’s your vagina”. Except, of course, if you live in one of the parts of the US where state governments have seen fit to limit those and other rights.

The liberties listed as needing to be shored up in this ad are presented as negative – freedoms from intrusive government policies – and yet, no level of government is mentioned at all. The distance that Macklemore has between him and these various issues does seem to matter here, because at least in how he’s presenting the issue, the mere act of support for these liberties is what matters. It seems that what he believes (and what he wants this ad to convince others of) is that the act of supporting the ACLU resolves inequalities and oppressive attitudes inevitably. This ad is very much a political assertion on his part that, in a word, simply identifying as an ally or advocate means something, contrary to all evidence otherwise.

Macklemore and Le1f
(On the left, Macklemore, a straight and White rapper. On the right, Le1f, a queer Black rapper who has alleged that Macklemore plagiarized his work, from here.)

Admittedly, the ACLU does sometimes spend money and time on issues pertaining to queer liberation and reproductive freedoms, but those are part of a larger pie. It also works with events like Stop Watching Us, tinged as they are with islamophobic implications, and defends free speech rights to an honestly implausible degree at times. That long history of supporting and financing racist speech is perhaps alluded to by Macklemore’s concern that he might face repercussions for his “political activism”. His other primary means of presenting himself to the public is of course as part of the gaining trend of White musicians who speak in code about people of color being materialistic. Even when showing himself as an ally, however, he often implies that heterosexist rhetoric is a fundamentally Black phenomenon.

The initial concerns he displays in the video about being subjected to brutality, presumably by the police or “community safety volunteers” seems tone deaf in light of the events of the past year. A few months ago George Zimmerman was acquitted for the death of Trayvon Martin and just within this week the grisly murder of a young Black woman faced speculation about whether her murderer would even be charged with a crime. For Black people in particular (and people of color generally), you don’t have to be saying or doing something “political” to face extreme violence, you can just be walking home from the store or knocking on a door asking for help after an accident. Before it ends, the video includes Macklemore asserting his right to call the president, the US’s first one of color, a dick if he wanted to (which he quickly says he doesn’t).

In a nutshell, it seems vital to ask what freedoms the ACLU and Macklemore thought they were promoting here. It seems that what they think of as promoting certain queer and feminist causes is tied up in self-aggrandizing attitudes in almost total isolation from the lived experience of dealing with heterosexism and sexism (to say nothing of the cissexist way that trans* people are excluded from the conversation). What they seem to think of as promoting freedom of speech and freedom from surveillance inevitably tracks back to tacit acceptance of racism and the quintessential embodiment of it among “liberals” – a sort of self-important ignorance of what their complaints sound like to communities that are targeted at the drop of a hat.

Their concerns are also decidedly libertarian – in that they’re exclusively about freedom from (usually) state intervention in daily life. There aren’t constitutional guarantees to the freedom to work without facing discrimination, for marginalized communities to be given additional assistance, or for economic redistribution to be political policy at all, and the ACLU and Macklemore’s framing here highlights that almost reflexively anti-state libertarian attitude that won’t serve many benighted groups very well.

This is not political activism which draws on the wants and needs of groups dealing with oppressive attitudes and actions by the larger society. This is an advertisement through and through which is working to sell you membership in an organization which potentially is designed to advance your rights in a way that won’t actually benefit you.

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Again, mild reforms for some

TW: racism, racist criminalization, islamophobia, drone strikes, stop and frisk

In anticipation of a rally tomorrow in Washington, DC, the American Civil Liberties Union (ACLU) and Electronic Frontier Foundation (EFF) have put together a video about their organizations’ stand on the issue:

I think we’re seeing a total convergence of their center-left civil libertarian view with that of libertarian-leaning conservatives (such as Ron Paul) – and that’s not a good thing. There’s repeated, consistent contours to whose rights they’re interested in protecting and restoring, if this clip is any indication. They’re quick to specify that their concern is for US citizens who are under “suspicionless surveillance”. I’ve written before about the frequency with which non-citizens of the US are left out of discussing the US surveillance state, but the “suspicionless” addition is uniquely intriguing.

The ACLU works generally with people who aren’t suspicionless but who rather have come under suspicion for reasons that violate the law (namely, racial discrimination) or with elaborate rationalizations for invasions of privacy that are extra-legal. The emphasis on the “suspicionless” nature of some modern surveillance detaches those from many other issues that are absolutely related. The arguments for everything from drone strikes to stop-and-frisk are typically built around racist, classist, and islamophobic explanations of suspicion. Those unique forms of violence which overwhelmingly apply to people of color have been deliberately filtered out of this explanation of how dangerous the modern surveillance state is.

The overall narrative to this film was one of restoration – which was delivered primarily by older White men. I’ve asked in other contexts where these politics have cropped up whether a motivating factor has been to properly direct government surveillance, which is seemingly namely towards people of color, Muslims, and non-citizens of the US. This theme of restoration seems to confirm that, as it points to Nixon’s crimes in an abstract way – not to the contemporaneous mass surveillance of Civil Rights workers. What people across the political spectrum – now from Rand Paul to the ACLU – seem to be asking for is a guarantee that these systems won’t be used against the most privileged.


(Amnesty International seems to have joined them when they published the above headline to an article today.)

This seems particularly so within the on-going fascination with how few online communication systems free of NSA surveillance exist. It’s as though the issue many people take isn’t with the violation of privacy, but the inability to buy their way around it with a unique site subscription or other loophole. Many of those in power, whether inside or outside of government, seem to want some guaranteed system of privacy in electronic communication. The broader question about anyone’s right to access that, means to access that, and subsequent impacts on their lives if they don’t or can’t have apparently fallen by the wayside.

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There’s good news and bad news

There’s been a lot of revelations in the past couple of weeks in terms of how Kafkaesque the criminal process has become in the US. Most importantly, the NSA leaks have led to the Drug Enforcement Administration’s extensive and often misrepresented use of surveillance for comparatively minor domestic offenses. As it turns out, the criminal investigation process in the US is shockingly loose and fast with the facts.


(A description of how normal intelligence gathering methods are used to confirm information originally gleaned by the NSA and DEA through extensive internet surveillance, which can then remain relatively obscure. From here.)

The silver lining in recent news, however, has been the US Supreme Court’s striking down of existing legal precedents that allowed judges to push for mandatory minimums on the basis of evidence not presented to the jury during the criminal proceedings. As the American Civil Liberties Union’s amicus curiae filed during the case explains the issue (on page 14):

A drug quantity that is not charged in an indictment or proved to a jury, but nevertheless sets a mandatory minimum, also raises the statutory maximum to which the defendant is exposed, a circumstance ‘Harris simply does not speak to.’ United States v. Gonzalez, 420 F.3d 111, 127 (2d Cir. 2005). The penalty provisions of the drug statute lay out three distinct ranges: 0 to 20 years; 5 to 40 years; and 10 years to life. 21 U.S.C. § 841(b)(1)(C), (B), (A). These penalty ranges correspond to offenses of conviction involving an unquantified amount of drugs, a quantity of drugs above a certain threshold, and a quantity of drugs above a higher threshold, respectively. A drug quantity finding that sets or increases a mandatory minimum therefore raises the punishment ceiling as well as the punishment floor.

In essence, this mechanic not only forced increases in jail time but further permitted sentences to inflate massively with effectively very little review within the judicial process. Thankfully, the court seems to have rescinded it, although numerous similar propositions (such as “three strikes” laws, to say nothing of the misrepresented DEA surveillance system) also need to be dismantled.

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Your struggle is not the only struggle

TW: nativism, violence against protesters

Earlier today, the southern Californian chapter of the American Civil Liberties Union posted this on twitter:


(They were publicizing their meeting with Sandra Fluke, which admittedly would be what I would do in that situation too. From here.)

In the contextless post on twitter, it might be hard to realize what they’re talking about is the right to access an abortion. There’s misinformation out there, and not enough efforts in California to counter that, but no actual violations of the right to bodily autonomy, at least as far as that branch of the ACLU apparently sees it.

Twitter’s already started calling them out for the various other problems that such a statement ignores, but I think it’s worth noting here the lengthy history of undocumented immigrants throughout this country having basic protections denied to them. Since we’re talking about the threat to equality in California specifically, why not mention the lengthy history of police brutality against undocumented immigrants who politically organize? Or the campaigns to keep Spanish out of the public eye? Or the fact that some of the victories in extending equal rights to undocumented individuals has involved campaigns and policy solutions that focus on exceptional cases? As UCLA’s understandable push for equal student rights be extended to students without legal resident status worryingly put it, “[m]any undocumented students are honor students, athletes, student leaders, and aspiring professionals”. Will those who aren’t seen as remarkable get grandfathered in?

If anyone should be familiar with this sort of situation, you would think it would be advocates for reproductive freedoms and related feminist struggles. If there’s a short summary of what they’ve worked against in the past few years, it would be normalized inequalities and the struggle against them having to be expressed in terms of how exceptional and therefore worthy some marginalized people are. In other words, precisely the sort of nonsense undocumented immigrants have to wade through at the moment in California and much of the US.

We’ve moved beyond the time of Seneca Falls, where the Declaration of Sentiments, which decried the sexist legal codes of that time, protested that many rights were “given to the most ignorant and degraded men—both natives and foreigners”. We’ve gotten to the point where the core of the feminist movement has shed that past interest in the “right” women having a clear advantage over the “wrong” men, but that’s simply a negative space. To the extent that we can talk about it as a singular thing, feminism has stopped directly colluding with heterosexist, racist, classist, and assorted other hierarchic systems, to advance only the cause of comparatively privileged women. That’s great, but is that really enough? Haven’t we reached a point where feminist advocates would recognize that their struggle, no matter how important and far reaching, is not the only legitimate one? Haven’t we reached a point where feminist organization might not forget about those other modes of oppression?

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Occupy Wall Street, the ACLU, and the Democratic Party

The people who have and still are stubbornly trying to occupy Wall Street are part of the liberal base of the Democratic party – the really important question is whether they, the everyday Democrats, are negotiating with the established political party (with a worrisomely high likelihood of no mutually satisfying outcome) or if their protests have (and will continue to) further the Democratic Party’s policy goals. Apparently, what’s key is to identify the relationship between the Occupy Movement and the official leaders of the Democratic Party.

Except, this entire discussion presumes that the occupiers are the only political faction potentially vying for influence over Democratic policies. Even a cursory knowledge of that specific movement reveals a process of contestation and conciliation between separate social and political contingents. At the core of the original protest was a general argument against the economic status quo by a mixture of post-capitalist anarchists and advocates of a more effectively democratically-checked and populist capitalism. These separate political camps effectively put aside their differences, agreeing to fight the common opponent of the existing economic system.

Following that initial negotiation between separate political groups, the Occupy Movement contended with the fact that its terminology recalled and appropriated the painful realities of many indigenous communities – and consequently alienated a large number of people of color, originally potential allies for the movement. Protesters worked to repair this rift, and largely succeeded, eventually incorporating Native American activists (and other activists of color) into the protests and a broader discussion of race-specific social justice into its message. This commitment to social liberalism likewise expanded into outreach to queer and feminist activists.

As the movement blossomed into a network of encampments across the US and even the world, in other urban contexts the protests’ purpose increasingly seemed to be an assertion of civil and political rights by various marginalized groups. Resolving these different intentions, especially within Occupy Oakland, was never really completed as police crackdowns on the movement gained momentum and spread across the United States.

Even within the movement, a number of different political needs competed for centrality to the protests’ message. These included the calls for a degree of economic stability and equality not offered by the current order, for social recognition and representation within the context of the economic debate, and for a feeling of security in the civil right to protest. Outside of the movement, additional political and social concerns shared by large numbers of voters (who had various relationships with the Democratic Party) competed and coordinated with those needs addressed by the Occupy Movement.

For all of the major issues addressed by Occupy, there was a common motif of proposed policies failing to match reality. The economic populists saw Dodd-Frank passed but not enacted. The social activists remembered the hard-won policy victories of the Civil Rights Movement, the Women’s Liberation Movement, the Queer Liberation Movement, and others but witnessed continued discrimination and marginalization. Those protesting against perceived restrictions of the right to protest saw a First Amendment that increasingly seemed meaningless. In that shared context, it makes sense that political procedure was meant to be reinvented – after all, it wasn’t producing the results it intended to. Looming on the horizon, as the movement halted because of police action, was the same process of negotiation with procedure-focused reform-friendly forces.

With Occupy focusing so intently on outcomes – that culpable banks have gotten off scotch-free, namely – and having come into conflict so immediately and frequently with police, it seems like the movement may have irreparably soured towards even innocuous-seeming political procedures. As a result it might have difficulty cooperating with an additional group of activists who work for organizations like the American Civil Liberties Union (ACLU), who will defend the procedural rights of even the Ku Klux Klan even if the effect is the continued mainstreaming of white supremacy. Built on a basis of skepticism towards existing policies and now feeling targeted by militarized policy – has Occupy become unable to politically coordinate with the ACLU, which has become indispensible to any broader coalition that wants the US to remain a democracy?

So, it seems like a more immediately pertinent question than whether Occupy and the Democratic Party are serving each others’ interests is whether Occupy and the ACLU can stop making pot-shots against each other. With the ACLU having all but called Occupy protesters hyperbolic over a new federal security law, and the Occupy movement doubling down on insisting that the law will undermine their entire movement, negotiation looks like it’s off the table, leaving two of the major contemporary left-leaning factions of activists a bit at odds with each other. Perhaps we should ask if those two groups can cooperate, just as much as whether their aims align with the wishes of the officials in the Democratic Party.

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