What would justice look like if all missing women got the attention Gabby Petito did?

The mysterious disappearance of Gabby Petito took the internet by storm. Gabby Petito's boyfriend, Brian Laundrie, returned home from a heavily documented road trip without her. Because there was so much information available online, her story captivated true crime fans and led to amateurs combing through every social media post.

The fact that Laundrie, the obvious suspect, had fled authorities only added to people's intense interest. Despite the intense media attention to the case, something many have rightly pointed out only happens if the victim is young, pretty and white, Gabby's body was found in Wyoming and her cause of death has been ruled a homicide. As this article is being written Laundrie has still not been captured by authorities after being on the run for five days.

Women in particular are drawn to true crime stories, especially those where other women are the victims of domestic violence, because we live with the danger of that violence in our everyday lives. Seeking out true crime stories not only provides us with tools to learn about our fears, and hope that if we learn enough we can protect ourselves, but also hopefully access the possibility of justice that in real life is sorely lacking in response to violence against women.

Domestic violence is the leading cause of physical injury to women, and more than half of female homicide victims are killed as a result of intimate partner violence. Currently 25 states have some form of "mandatory arrest" law for domestic violence but many of those laws still require the officer's discretion to determine if there has been a domestic violence incident. A 2009 study found that in 70 percent of police investigated domestic violence incidents prosecutors decline to bring charges. When men are convicted for killing an intimate partner, they only serve 2-6 years in prison on average.

In Utah, where police responded to a domestic violence 911 call about Brian Laundrie slapping Gabby Petito, the law is written with a lot of police discretion: "If the peace officer has probable cause to believe that there will be continued violence against the alleged victim, or if there is evidence that the perpetrator has either recently caused serious bodily injury or used a dangerous weapon in the domestic violence offense, the officer shall arrest the alleged perpetrator into custody." Police had the 911 call that reported that Laundrie slapped Gabby Petito multiple times and chased her down, but body cam footage shows the police joking with Laundrie about histrionic women and only urged the couple to spend the night apart. They had the ability to arrest Laundrie under the mandatory arrest domestic violence law, but claimed there was insufficient evidence.

Historically, true crime interest has been more prurient and lurid. It first developed in the 19th century with newspapers sensationalizing the murders of young women. They would be described as beautiful and drawn in sexualized poses in death. The public couldn't get enough of reading about young unmarried murdered women like Helen Jewett, but the press coverage rarely resulted in convictions even when police made an arrest. Instead the men who killed these women were let off with bizarre defenses like sleep walking or accidental drowning with no water in the lungs. The "beautiful female murder victims" were all young, white unmarried women. Black women weren't even seen as victims by society and the violence against them went unnoticed as well as unpunished.

Very little has changed in terms of prosecuting violence against women. White women, like Gabby Petito, still get the attention of the media while Black and brown women are completely ignored. Black women experience intimate partner violence at a rate 35 percent higher than white women and over half of Indigenous women have experienced physical violence by an intimate partner.

Despite the outsized media attention in Gabby's case and the large public interest, statistics tell us she will likely never get justice. Gabby's experience of domestic violence was still ignored by police, supporting the idea that police shouldn't even handle domestic violence, and murdered. Gabby's likely murderer is on the run and even if he is caught might never be convicted. Interest in her case was not out of a deep concern for domestic violence and harm to women, but instead because young, pretty, murdered white women make good tv. However, that interest still helped to find her body and give her family some answers. In some cases the media interest in missing white women can actually help us find them alive. So while our true crime obsession rarely leads to actual justice for murdered women, if we put some of our attention to missing Black and Brown women we might bring a few more of our sisters home.

Consider supporting the Black & Missing Foundation and the National Indigenous Women's Resource Center.

How Ruth Bader Ginsburg envisioned changing Roe v. Wade

Buckle up for my fourth column on the state of abortion in less than two months and my third addressing the new Texas six-week abortion ban. It looks like the federal government is interested in taking up the fight, but how successful it will be is still left up in the air. When facing gerrymandered Republican controlled states and a Trump-packed federal judiciary, we need to fight these laws with every tool we have. That means grassroots advocacy and support, federal lawsuits and, hopefully, federal legislation. I know this is all overwhelming, which is why I'll write as many columns on abortion access as we need.

The United States Supreme Court allowed a six-week abortion ban in Texas to go into effect, because it found the new procedural questions just too baffling to handle. Apparently, if you want to pass a blatantly unconstitutional law, all you have to do is ignore longstanding civil procedure and have civilians enforce your law through civil court, thereby bypassing the need for state actors! Sorry, but you too would be snarky if you had been covering this ridiculous law that would be laughed out of a 1L civil procedure class for almost two months.

Anyway, with the decision by SCOTUS to let the law go into effect, the likelihood of a successful judicial challenge remains unclear. Luckily, a lot of people are still trying. There was a small judicial victory last week when a Texas judge temporarily blocked one anti-abortion group from suing one abortion provider. Judge Maya Guerra Gamble's ruling stops Texas Right To Life from suing any workers or abortion providers at Planned Parenthood clinics. While it doesn't do anything to the law generally, the ruling does take a step to protect those providing abortions and stop one of the groups most dedicated to funding suits under the new law.

Judge Gamble managed to see the clear harm where SCOTUS was confused when she wrote "The Court finds that SB 8 creates a probable, irreparable, and imminent injury in the interim for which plaintiffs and their physicians, staff and patients throughout Texas have no adequate remedy at law if plaintiffs, their physicians, and staff are subjected to private enforcement lawsuits against them under S.B. 8." This same group, Texas Right to Life, also faced a setback when GoDaddy gave it 24 hours to find a new host for its website. The group moved to Epik which has a history of hosting controversial conservative sites. Despite Judge Gamble's ruling, many Texas abortion providers will still be wary about performing abortions under the new law and it will still serve to make abortions more difficult to access even without enforcement. The ruling will more likely save clinic workers from harassment and frivolous suits temporarily, an important aspect, than actually help people access abortions.

While the exact path of judicial challenges remains unclear, because Texas purposely is trying to thwart judicial review without including state enforcement, the Justice Department has brought suit against Texas in a US District Court in Austin. The Justice Department's complaint uses appropriately strong language to call out Texas' clearly unconstitutional law and, in fact, says that SB8 was enacted "in open defiance of the Constitution." It also plainly addresses the motivation behind the law which is to escape judicial review.

The suit also says that SB8 unconstitutionally impairs federal interests by prohibiting federal actors and agencies from "carrying out their responsibilities under federal law related to abortion services." The Hyde Amendment, which prohibits federal funding from going to abortions, has three exceptions that allow for the federal government to support abortions in the cases of the life of the mother or rape or incest. SB8 has an exception if the life of the mother is at stake but not in the cases of rape or incest and so, the complaint argues, could interfere with federal actions. Abbott has defended the law not having rape or incest exceptions by promising to eliminate rape and by claiming a six-week abortion ban provides six weeks to get an abortion if raped (best case scenario, it only provides two weeks). While we have no idea if this legal challenge will work it seems likely that it is just the first federal attempt to protect abortion rights.

Considering the conservative lean of the federal judiciary right now, thanks to Trump pushing through so many judges, many are looking to a legislative solution to the abortion crisis. After the Supreme Court's decision to let SB8 stand, Speaker Nancy Pelosi announced the House will vote on the Women's Health Protection Act, hopefully enshrining abortion protections into federal law. The WHPA would make it a right for patients to access abortion care and for healthcare workers to provide abortions. The WHPA is often described as a law that would "codify Roe" into law. While it doesn't literally write it into law, it does use similar justifications of the rights of doctors to protect pre-viability abortions. It protects against unnecessary procedures and restrictions as well as post viability abortions if there is a "good faith" determination by a medical provider that its necessary.

Now I hope this legislation makes it into law, and that somehow the Senate votes for it or we manage to get rid of the filibuster, but I think we can actually enshrine abortion into law with even stronger protections. Roe was decided based on a guaranteed right to privacy which was built on the legal justifications for a right to birth control in Griswold v. Connecticut. Many legal scholars, including Ruth Bader Ginsburg, think a privacy justification is a weaker legal foundation.

Ruth Bader Ginsburg argued for abortion protections based on an equal protection justification rather than privacy or any free exercise of the rights of a physician. Not only did Ginsburg think this would be a stronger justification legally, that would better hold up under further scrutiny, but it also has the benefit of being the real reason we need abortion protections. Without strong protections for reproductive healthcare women, trans men, and non-binary people can never have equal access to society or be treated equally.

Abortion is virtually banned in Texas — but Roe still rules for now in the other 49 states

Somehow, without even so much as an oral argument and barely any news coverage, Roe v. Wade was invalidated in Texas with a cursory unsigned majority opinion refusing to grant an injunction to halt a new Texas anti-abortion law from going into effect. Confused? Pissed off? What to do next? You're not alone. I'm feeling all of that and then some right now but I'm also going to do my best to explain what happened.

I wrote about it in July. Basically the law in question, SB8, makes abortion illegal once a heartbeat can be detected (about 6 weeks), which would outlaw 85 to 90 percent of abortions. While far from the first attempted six-week ban, this law is having unprecedented success, because it employs a new enforcement mechanism.

Usually, when a state outlaws something, the enforcement of that law is placed in the hands of state actors and criminal courts. Since a six-week abortion ban blatently violates standing legal precedent that guarantees abortion, federal courts have consistently overturned such laws. The legal redress to bring a suit in federal court is clear, because these abortion bans were enforced by state actors. What this new law does is place enforcement in the hands of private citizens.

Rather than arresting an abortion doctor or a pregnant person who gets an abortion, an individual is expected to sue anyone who gets an abortion, or aids in getting an abortion, in civil court. If they win, they can be awarded $10,000. What's truly bizarre is that unlike every other example of civil litigation ever, the person bringing the suit does not need to have "standing" or be involved in the case in any way. Financial judgments in civil suits are supposed to be made as redress for harm or personal damages. According to this law, one need not be harmed in any way to bring a suit. Their financial award is basically a payment for enforcing the anti-abortion statute, like a bounty hunter.

What happened was that the Supreme Court let the law go into effect without supporting an immediate injunction. There were no oral arguments or even a signed majority opinion but instead allowed an unconstitutional abortion ban to stand through the "shadow docket," which has come to refer to these types of decisions that are outside normal procedures for cases and often result from emergency appeals. The majority issued an unsigned decision that refused to stop the law from going into effect because of the "complex" procedural questions, but said their decision was "not based on any conclusion about the constitutionality of Texas's law." Basically, the majority rewarded Texas' blatant legal maneuver to circumvent the federal court system and allowed a law that is unconstitutional to take effect.

While the majority provided a paragraph to explain its reasoning, the dissenting four justices (Chief Justice John Roberts joined the liberals) each wrote a separate opinion explaining why an emergency injunction should have been issued. I wish I could say Roberts joining the liberal wing and dissenting was encouraging. For one thing, he's an institutionalist and he cares about the legacy and balance of the court. If the make-up was different and the decision was 4-4 with him as the swing vote, he might have joined the majority. For another, Roberts argued an injunction should have been granted "to preserve the status quo ante — before the law went into effect — so that the courts may consider whether a state can avoid responsibility for its laws in such a manner." Roberts very well might sustain the constitutionality of the six-week ban if it had time in the federal courts and arguments were presented. He also likely will side with the majority to overturn Roe in the upcoming case Jackson Women's Health Organization v. Dobbs.

Kagan's dissent importantly criticizes the use of the shadow docket and Sotomayor's brings the fiery defense of abortion rights we so desperately need, as well as the accurate portrayal of the Texas law as basically empowering civil-law bounty hunters. It is Breyer's dissent, however, that might suggest some helpful legal arguments. As I've explained, the law avoids traditional constitutional review by avoiding the involvement of state actors. But Breyer suggests that issue has already been addressed by a 1976 case. In Planned Parenthood of Central Mo. v. Danforth, the court said a "State cannot delegate … a veto power [over the right to obtain an abortion] which the state itself is absolutely and totally prohibited from exercising during the first trimester of pregnancy," and "since the State cannot regulate or pro- scribe abortion during the first stage … the State cannot delegate authority to any particular person … to prevent abortion during that same period." In this case, the state struck down a requirement that a person get written consent from a parent or a spouse but the opinion does seem to be on point for non-state actors generally.

So what do we do now? Honestly, I'm not sure. Both the majority and the chief justice emphasized that this decision should not be taken as a ruling on the constitutionality of the law, which leaves open the likelihood of additional legal challenges. Unfortunately, in the meantime the law is in effect and abortions are not being performed out of fear of civil suits. One of the reasons I can't say what will happen is because we don't know what judges will do or how other legal challenges will play out. However, it is important to note that technically Roe hasn't been overturned. Overturning Roe would affect national abortion coverage and abortion would be immediately illegal in 13 states. Luckily we're not giving up and many are committed to fighting this unconstitutional bizarre civil procedure quagmire.

So what can you do? Support organizations like the Center for Reproductive Rights, which is a legal advocacy group for abortion rights. Donate to abortion funds in Texas and all over the South that are doing their best to continue abortion care. Consider supporting Frontera Fund, the Afiya Center and Yellowhammer Fund. RAICES, an immigrant organization in Texas, has issued a statement vowing to not obey the new law and continue to help people access abortion. Organizations like Carafem are committed to helping people in states with restrictive access laws. There has been some fearmongering about Texas going after out of state residents for aiding in accessing abortion but I agree with Imani Gandy's interpretation that only in-state actors will be sued.

Make abortion the election issue in 2022. Find out whether your state has a law protecting abortion. If it doesn't, call your representatives to urge them to pass legislation and only vote for elected officials committed to passing such legislation. Call your federal representatives and urge them to pass legislation codifying abortion in federal law. Pelosi has already said the House will vote on abortion legislation after the recess and Biden has committed to launch a federal governmental effort at protecting abortion. Oh, and keep flooding the anonymous reporting website in Texas with false tips.

The Repro Legal Helpline provides free and confidential legal advice: 844-868-2812.

Conservatives are recycling a claim from World War II to oppose bringing in Afghan refugees

United States immigration and naturalization history is one of grouping people into "desirable" and "undesirable" immigrants. There was a short period after 1967 when the US accepted refugees outside of this "desirability" framework based on humanitarian concerns. Until the Trump administration, the US was considered a leader in accepting refugees, many years accepting more than all other nations combined. That changed with Trump policies in 2017. Reversing immigration and refugee restrictions should have been an easy decision for the Biden administration, but unfortunately asylum seekers are still facing obstacles to admittance justified through claims of covid safety protocols, and therefore making refugees "undesirable" based on incorrect understandings of disease spread. With our withdrawing from Afghanistan, the issue of refugee admittance has taken on new urgency. We have a general moral duty to accept refugees, but we owe even more to the Afghan refugees who worked with the US military forces and journalists for the last 20 years.

During the Trump administration, refugees and asylum seekers were conflated with undocumented immigrants to the point that people assumed those who crossed the border as asylum seekers were doing so illegally. In order to seek asylum a person must cross the border and claim asylum status within a year of entering. Many held in detention camps crossed the border legally to claim asylum but were held, and separated from their children, while awaiting a hearing. This was a change in policy from earlier administrations when those held while waiting could remain with family and often could be released with the assumption they would return for their court date. Similarly, the past administration contributed to the idea that refugees, any person applying for refugee status must be located outside of the US, were unvetted and the refugee program was a way for criminals or terrorists, or disease carriers, to sneak into the country. Therefore refugees were automatically associated with other "undesirables."

Undocumented immigration, or "illegal" immigration, did not exist in the United States until the late 19th century, and therefore refugee status was not needed to enter the country. Of course that didn't stop racism and nativism from affecting immigration. Immigration was fairly unregulated in this period but naturalization, the process of becoming an American citizen, was a different story. The 1790 Naturalization Act established that "free white persons" who had resided in the US for at least two years may be granted citizenship if they demonstrated "good moral character." This was governing law, with a few changes to the required years of residency, until the Naturalization Act of 1870 included "aliens of African nativity and to persons of African descent." Whiteness and "good moral character" (both arbitrarily defined) were requirements to naturalize a citizen for much of American history. The laws made whiteness and "morality" a requirement for desirability. It wasn't until the Immigration and Nationality Act of 1965 that race and ethnicity were eliminated as a basis for exclusion in immigration and naturalization law.

The first exclusionary immigration law passed in the US was the Page Act in 1875. It restricted entry to certain "undesirable" immigrants that included criminals, prostitutes and Chinese laborers. The Page Act was also gendered, as it was used to deny entry by Chinese women believed to be prostitutes. The Page Act was unique in that it centered morality and desirability explicitly in immigrants. The Chinese Exclusion Act in 1882 went further than the Page Act by banning Chinese laborers for 10 years and denying Chinese immigrants any path to citizenship. This was the first federal law that provided a framework for illegal immigration, which effectively didn't exist before. The Bureau of Immigration was created in 1891 with the Immigration Act of 1891 that modified the Chinese Exclusion Act of 1882. The same act called for deportation for immigrants who entered illegally. This was the first immigration law that discussed deportation or punishment for entering the country illegally. This law was also the first to recognize "refugees" as a separate immigrant status.

In 1921 and 1924, the US passed the Emergency Quota Act and the Immigration Act, which enforced racist quotas for immigration based on nationality that favored North West Europeans and made immigration more difficult for everyone else. While refugees were still a recognized status of immigrant, they were also subject to these racist quotas. During World War II, thousands of Jewish refugees were turned away largely as a result of the racist quota system. Turning away Jewish refugees was also justified by claiming they could really be Nazi spies disguised as refugees (sound familiar?), as if there wasn't a way to vet people. International and humanitarian law fundamentally changed in a response to the Holocaust and the Jewish refugee crisis. As an immediate response the US allowed in 40,000 immigrants in 1945 after Truman authorized displaced persons and refugees expedited admission, but this didn't change existing immigration law.

The first law passed in the US that directly dealt with refugees was the Displaced Persons Act of 1948 but it expired in 1952 and was meant to specifically address the postwar crisis. The act allowed displaced persons to bypass the quota system, but they were required to find a job that would not replace a worker already in the country, enforcing a second-tier status. In 1951, the United Nations held a convention on refugees that defined refugees and their legal protections. A refugee is someone who can demonstrate they were persecuted or fear persecution due to race, religion, nationality, political opinion or membership in a particular social group. The US did not sign on to an international agreement until the 1967 Protocol Relating to the Status of Refugees. After the Displaced Persons Act of 1948 expired, the Congress passed a number of laws to address specific crises but it was not until the 1965 passage of amendments to the Immigration and Nationality Act that the quota system was removed and a permanent refugee program was instituted. The INS finally created a dedicated office of Refugee and Patrol in 1977 and the Refugee Act of 1980 created a clear uniform policy for the admission of refugees that also created the Office of Refugee Resettlement.

After 9/11, the US Department of Homeland Security and Immigration and Customs Enforcement (ICE) were created. The also newly formed US Citizen and Immigration Services now carries out refugee policies. The last 20 years have seen a marked change in the enforcement of immigration and narratives around refugees, amplified by the Trump administration but not created by it. Refugees are some of the most vetted people in the US. They are the safest and least likely to commit crimes. Yet conservatives have recycled a claim used during World War II, that Nazi spies could be hiding among Jews, and applied it to contemporary refugee crises. Trump claimed Syrian refugees posed a terrorist threat and would lower the quality of life for Americans.

We have an absolute moral imperative to let in as many Afghan refugees as possible because of our role in their current crisis. But we also must be wary of leaning too hard on certain refugees, or immigrants, being more "desirable" than others. Refugees must be welcomed into the United States even if they did not serve as interpreters to the Army and even if it is a global pandemic.

To help people in Afghanistan right now, donate to Baba Mazari Foundation.


How America was not founded as 'a Christian country' based on 'Judeo-Christian' values

A common rallying cry of the right in America, to justify regressive morality laws, is often to say that "America was founded as a Christian country" with "Judeo-Christian values" while the common response from the left is to declare that the United States was founded as an explicitly secular country with a separation of church and state.

Would it surprise you to learn both are wrong?

First of all, "Judeo-Christian values" is a dog whistle that erases Jewish values by subsuming Judaism into Christianity. It also excludes other religions, particularly Islam. When politicians claim "Judeo-Christian values" they're almost always describing Christian values but want to pretend they are being inclusive of Jews.

Initially, in the 19th century the phrase referred to Jewish people who converted to Christianity. It wasn't intended to be inclusive of Jews at all. The current meaning of the term was an invention of American politics in the 1930s, as a phrase to show opposition to Hitler and communism. "Judeo-Christian values" is often used by politicians to proclaim common opposition to atheism, abortion and LGBT issues.

Basically, there's no such thing as a "Judeo-Christian values."

Except Judaism and Christianity don't have a common value system on those issues. While it is hard to declare a universal Jewish value—there are many sects of Judaism and one of our core tenets is argument—most Jewish rabbis acknowledge that abortion should be allowed at least in certain circumstances. Jewish law dictates that life begins at first breath, not conception. Additionally, many Jews consider themselves atheists and consider Jewish practice to be through behavior and attitude, not belief. Unfortunately the acceptance of LGBT people in Judaism is more complicated, depending on the sect, but Reform and Conservative Judaism are publicly accepting of LGBT people. Basically, there's no such thing as a "Judeo-Christian values."

The United States was founded with an attempt at secularism as well as freedom of religion. As opposed to monarchies, democracies in general are less Christian-based, as rulers are not justified on the "divine right of kings." Practically, "freedom of religion" often meant the freedom to practice whichever sect of Christianity, or sometimes even Protestantism, a person chose. Considering a number of colonies were founded based on disagreements over which Protestant sect was "correct," even this level of legally inscribed religious freedom was progressive for the late 18th century.

However, when considering religious freedom in early America, we must look beyond federal law and beyond the Bill of Rights. The Bill of Rights was not applied to the states, except to declare the citizenship of formerly enslaved people, until the Incorporation Doctrine was applied to incorporate the Bill of Rights to the states through the Due Process Clause of the 14th Amendment. This doctrine has been traced to Gitlow v. New York in 1925, when the Supreme Court held that states were required to protect freedom of speech, partially incorporating the First Amendment.

The relevant text of the First Amendment states that, "Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof." This text is meant to prevent an established state religion but also to protect religious practice from government interference. While protection from a theocracy is important, it is hard to argue that this text is meant to enforce secularism. Additionally, the phrase "separation of church and state" is actually paraphrased from a letter written by Thomas Jefferson in 1802. It was not interpreted as part of the intent of the First Amendment until Reynolds v. United States in 1878.

It's tempting to push back by declaring the United States was founded as a secular country. Unfortunately, that claim would ignore a long history of the privileging of Christianity.

Most early colonies supported religious action with taxes. Many established state religions. While some disestablished with early state constitutions, Connecticut, New Hampshire, Massachusetts, Maryland, Rhode Island and North Carolina didn't. The Massachusetts Constitution limited office to Protestants until 1821. Non-Protestants couldn't hold office in New Hampshire until 1876.1 Maryland, Rhode Island, North Carolina and New Hampshire did not allow non-Christian voting until well into the 19th century when the franchise expanded in 1826, 1842, 1868, and 1877, respectively.2

At the federal level, religion became relevant to citizenship when coupled with questions of "whiteness." Naturalization required an immigrant be "white" or of African descent after the Civil War until 1952. This requirement led to a number of cases, dubbed "prerequisite cases," brought by immigrants to prove their "whiteness." One consideration for the courts was the "racial performance" of immigrants to determine how successfully they would assimilate. Courts often used an immigrant's lack of Christianity as a detriment to assimilation and therefore to whiteness.

There were also forms of state-sponsored discrimination against non-Christians that did not require explicit privileging of Christianity over other religions. Consider the ubiquity of "Sunday Laws," which prohibited people from working Sundays. Jews had to work on the sabbath (Saturday), lose two days of work over the weekend or risk prosecution. These laws resurged in 1880s New York with the arrival of more Jews.3

Non-Christians, particularly Jews, faced discrimination in court. Courts often required people to appear on Saturdays and would forbid a "religious exemption" for Jews.4 Many also considered a belief in Jesus Christ as a requisite for swearability on the witness stand. Not until 1857 did a New York court ruled a Jewish witness must be sworn to testify according to the "peculiar ceremonies of his religion," specifically a Hebrew Bible and with his head covered.5 Jewish witnesses got legal protections in 1871. A Jewish plaintiff was questioned about his belief in Jesus Christ to impeach his honor under oath in a property dispute. When appealed, a Georgia court said a "want of belief in Jesus Christ as the Saviour" was not grounds for exclusion of a witness, and that while some courts have used a belief in Jesus as necessary to render a witness competent, the court clearly ruled that "a Jew is competent at common law."6

It's tempting to push back against politicians justifying their regressive morality laws by way of the "Judeo-Christian values" of the founding. It's tempting to push back by simply pointing to the First Amendment and declaring the United States was always founded as a secular country. Unfortunately, that claim would ignore a long history of discrimination against minority religions and the privileging of Christianity.

In order to fight for a truly religiously inclusive society, we must acknowledge the ways in which Christianity is embedded in the laws and culture of our society. Luckily the founders provided the First Amendment, an important tool in this fight.

There was a brief time when civil courts could force cops to pay damages -- then SCOTUS stepped in

Ex-cop Derek Chauvin was convicted this week of murdering George Floyd, marking the first time a white police officer has been convicted in the death of a Black person in the history of Minnesota, and the second time a police officer had been convicted of killing a civilian in the state. While the verdict was a victory, it will do very little to curb police brutality or systemic racism in policing without serious reforms in policing training and legal accountability. Even in this trial, Chauvin was presented as an outlier cop who violated procedure, rather than as an officer with many excessive-force complaints in his history, who had been protected by the system for years.

One of the biggest impediments to police accountability for killing civilians is the legal doctrine known as qualified immunity. Qualified immunity shields police officers from civil lawsuits brought by the public to protect government officials who make "reasonable" mistakes. This means that people who have had their civil rights violated by police officers cannot sue and they must rely on disciplinary action by the police department or the prosecutor bringing charges to hold officers accountable.

While civil lawsuits can only provide financial accountability, they could be an important tool in changing the culture around policing. Individual police officers might think twice about their actions if they thought their own money was on the line. Additionally lawsuits bring press attention that would likely be unwanted by police departments. Civilians must have their own mechanism for holding police officers accountable and cannot be forced to rely on systems set up to protect police.

The right for civilians to bring lawsuits against public officials who violate constitutional rights dates to the passage of the Civil Rights Act, aka the Enforcement Act, of 1871. Initially passed to fight the Ku Klux Klan, the law empowered the president to suspend habeas corpus, a writ to challenge why someone is being imprisoned, to combat the KKK. In 1961, in Monroe v. Pape, the Supreme Court held that Section 1, now amended and codified as 42 USC § 1983, known as Section 1983, could be used to sue state officers who violated a person's constitutional rights.

In that case, 13 Chicago cops broke into the Monroe home without a warrant, ransacked it and made Monroe and his wife stand naked in the living room before taking Monroe to the police station to interrogate him for 10 hours about a murder. Monroe brought suit against each officer as well as the city under the 1871 Civil Rights Act. While dismissed by the District Court and the Court of Appeals, because the officers were performing government functions, the Supreme Court disagreed with respect to the officers but dismissed the case against the city. The court held that the purpose of the 1871 Civil Rights Act was "to give a remedy to parties deprived of constitutional rights, privileges, and immunities by an official's abuse of his position."

While Monroe remains important precedent, a 1967 case weakened it with respect to police officers by creating the legal doctrine of "qualified immunity." Pierson v. Ray was a case coming out of desegregation efforts in the South. It involved the arrest of 15 Episcopal priests, 12 white and three Black, who tried going to a coffee shop in Jackson, Mississippi, while participating in the Mississippi Freedom Rides in 1961.

The priests were arrested for "breach of peace" after refusing to leave the coffee shop after being ordered to. They were each sentenced to four months in jail and a $200 fine. Represented by the Congress of Racial Equality, they sued for damages against the local judge and police under Section 1983, claiming false arrest and imprisonment.

While the 5th Circuit Court of Appeals found the Mississippi "breach of peace" law allowing the police to arrest the priests unconstitutional, it did not hold them liable, because they could not be expected to know which laws were constitutional or not. Additionally the appeals court ruled the judge was immune from prosecution.

While the Supreme Court ruled a new trial was warranted, it held that while police officers did not have "unqualified immunity," they may be excused "from liability for acting under a statute they reasonably believed to be valid but that was later held unconstitutional, on its face or as applied"—in other words, "qualified immunity."

While this was meant to be a small exception carved out for officers who acted in "good faith," the doctrine was greatly expanded in 1982 with Harlow v. Fitzgerald. After Harlow, police officers were generally shielded from civil liability, even if acting in bad faith, unless plaintiffs could show the officer violated a "clearly established" right that a "reasonable person" would know. The burden of proof therefore was moved to the shoulders of the plaintiff and "reasonableness" became an issue. Additionally plaintiffs were required to show a legal precedent involving the "specific context" and "particular conduct" at issue. Otherwise, the officers were shielded from liability. Bottom line? This is rarely achieved. The result? Cops act like they can do no wrong.

Ending qualified immunity is a necessary step in empowering civilians and holding police officers accountable for their violence. The United States House of Representatives has passed the George Floyd Justice in Policing Act, which would end qualified immunity. The act would also ban chokeholds, no-knock warrants in federal drug cases, create a nationwide database of police misconduct, prohibit racial and religious profiling, and redirect funds to community-based policing programs.

While the bill would be an important step in police reform, Republicans in the United States Senate are blocking it with a competing bill that is not as strong. Qualified immunity was created in an attempt to protect police officers during segregation and continuing its use only serves to perpetuate systemic racism and violent policing.

The history that went into killing 13-year-old Adam Toledo

Adam Toledo, 13, is one of about 1,000 people every year who are killed by police officers. Video of the incident was released reluctantly Thursday by the Chicago Police Department. It shows a cop, who is white, shooting Toledo once in the chest after the Hispanic youngster obeyed his commands by dropping his gun and raising his hands. People are still arguing about whether Toledo's death was justified. (It wasn't.) There is no argument, however, about its place in the racist history of policing in America.

Of the 6,211 people killed by police since 2015, about 10 percent were unarmed. Over half were not attempting to flee. While white Americans account for nearly half, Black people, men as well as women, are killed at almost twice the rate of white people. Native Americans and Latino men also face a higher risk of being killed by police than white people. Alternatively, 295 officers were killed in the line of duty last year. The average death toll for police for the last six years was 190, making the public more in danger from police officers than police officers were in danger from the public.

Policing has violent racist origins in all parts of the US. Rather than tools of justice and peacekeeping, police forces have historically acted as state-sanctioned vigilantes or to support truly extralegal violence.

While there has been increased interest in police brutality in the last decade, racist police violence and police brutality dates back to the inception of police forces in this country. The first modern organized force in the United States was the New York City Police Department in 1845 with New Orleans, Cincinnati, Boston, Philadelphia, Chicago and Baltimore following soon after. Urban police forces were encouraged by nativist anti-immigrant concerns and capitalist desires to protect private property.

By 1860, the NYPD was deeply involved in partisan politics, corruption and ethnic resentments, even among Irish and German immigrants who had made inroads into the department. This corruption and politicization of policing and criminal punishment encouraged officers to mete out their own "curbside" justice in the form of beatings rather than arrests. Irish Protestants were more likely to support Republicans, leading to a violent police response to the Catholic Irish protests of Republican Irish parades in 1870-1871. Unfortunately, police brutality did not lessen after 1870 when the police department was once again controlled by Democrats.1

By 1865, the press started reporting on police brutality and complaints made by citizens. Between 1865 and 1894, the Times reported more than 270 cases. Three quarters of these involved an officer clubbing a suspect, usually unarmed, with a baton or nightstick. Wrongful shooting accounted for 7 percent of incidents. Almost 10 percent of victims died. While most police violence was committed against men, 20 percent was against women and 4 percent of reported incidents were sexual assault.2

Police brutality was racialized even at the beginning of police force history. While 68 percent of victims were English/Scottish or Irish, that ethnic group accounted for 91 percent of the police committing the violence, with Irish officers committing a full 50 percent of police brutality incidents, despite being only 22 percent of the police force. About 15 percent of incidents were committed against Jews, Black Americans and Italian immigrants, who had virtually no representation in the police department.3

Police violence became more racialized after the turn of the century. Predominantly Irish police officers joined violent white crowds in attacking Black people, Jews and other immigrants in the early 20th century. Riots in 1900 and 1903 led to police violence against Black Americans in New York's Tenderloin district and the city's old San Juan Hill neighborhood's, respectively. A virtual pogrom broke out during the Hoe Riot when Irish cops joined Irish workers on the Lower East Side in violence against a Jewish funeral march. This legal racist violence by police became a method of assimilation and whiteness for many Irish immigrants. Police forces continued to protect capitalist interests by committing violence as strikebreakers as well as serve nativist political concerns by enforcing increasingly racist immigration laws.

Before organized police departments in the North, some colonial governments appointed constables to protect the community from Native Americans. Some communities also created night watches or used the local militia to protect citizens from outside threats, not to police the behavior of citizens. Policing in the South developed to enforce the slave system and protect against slave rebellions rather than to provide public safety. The first slave patrol was formed in South Carolina in 1704, but soon spread throughout the colonies and lasted until the Civil War in Southern states. Slave patrols were meant to return runaway slaves, deter slave revolts and maintain some discipline among slaves who might violate plantation rules. Slave patrols supported a vigilante style of policing that continued after the Civil War. Vigilance committees formed in the West to police the frontier and were often sanctioned by governments. Slave patrols also contributed to Jim Crow and segregation policing that led to lynchings that went unchecked by governments.

Policing has violent racist origins in all parts of the United States. Rather than general public safety and law enforcement, police departments were created to enforce racial boundaries and the political concerns of white supremacy. Rather than tools of justice and peacekeeping, police forces have historically acted as state-sanctioned vigilantes or to support truly extralegal violence. Most of us think police were created to deal with rising crime and urbanization, but they always served the needs of the white elite to protect property with violence and enact their own racist animus. Government-sanctioned police brutality is embedded in our policing structures. You should know about this history. It's what powered the bullet that flew into Adam Toledo's chest.

Mandatory vaccination is American as apple pie — and as old as the Revolution

With a large portion of the country getting vaccinated, we are finally seeing light at the end of the tunnel. To protect public health, certain activities will obviously require people to be vaccinated, a kind of policy that has existed in some form or another since the American Revolution. Despite the longstanding established practice, the idea of a "vaccine passport" has people making bizarre comparisons to the Holocaust and tyrannical governments. It is common practice for people to provide their vaccination records in order to go to school, have certain jobs and travel to certain countries. The concept of a "vaccine passport" is just to streamline this process and make it easier for people to show proof of their COVID-19 vaccination. If one doesn't want to get vaccinated, they might just have to forgo participating in certain activities.

Compulsory vaccination laws are justified legally based on the state's compelling interest in protecting the health and welfare of the population. It is common to restrain a little individual liberty in order to protect the safety of the larger society. Consider the Oliver Wendell Holmes quote, "The right to swing my fist ends where the other man's nose begins." Our liberty must be restrained if said liberty has the likelihood of putting others at risk. This applies to gun laws, traffic laws, or bringing shampoo bottles on airplanes. If a person doesn't want to get vaccinated, that is their choice. But they likely forfeit traveling, attending schools, or having certain jobs.

It is common to restrain a little liberty in order to protect the safety of the larger society. Consider the Oliver Wendell Holmes quote, "The right to swing my fist ends where the other man's nose begins."

Compulsory vaccination policies in this country began during the American Revolution. Smallpox was a huge threat to the Continental Army and word of the disease was actually halting enlistments. In order to protect soldiers and the war effort, General Washington ordered all new recruits receive the "variolation" for smallpox in 1776. The policy was successful at eradicating smallpox among soldiers, which helped the Continental Army defeat the British invasion at Saratoga.

The first law that required the general population get vaccinated was passed in Massachusetts in 1809. The state empowered local boards of health for towns to require free vaccinations of people over 21 if the boards felt it was necessary. If a person refused, they had to pay a $5 fine (about $100 in today's money). States across the country followed with their own compulsory smallpox vaccination laws though the specifics varied widely. Some only required compulsory vaccinations in the midst of an epidemic. Some only required vaccinations for children attending schools.

New York City exercised particularly broad power in allowing health officials to enforce vaccinations or quarantines. As a busy international harbor, the city felt particularly threatened by incoming diseases. As a result, immigrants and ships were often required to quarantine. Unfortunately, these policies often took on a distinctly anti-immigrant and nativist turn. Public health officials often blamed poor immigrants for spreading diseases rather than engaging in education to encourage vaccine compliance. Common policy in the late 19th century was to place a yellow flag in front of an infected building and not allow anyone in or out. However, there weren't clear guidelines on forcing a person to comply with a vaccination if they didn't want to. As a result, in 1894, Brooklyn's top health official Z. Taylor Emery would often enforce quarantines, to the point of not allowing provisions to be delivered, on those who refused being vaccinated. Emery's arbitrary and coercive policies resulted in backlash but the appeals court supported Emery's rationale of protecting the public.

In 1905, the question of compulsory vaccination laws made it to the United States Supreme Court in Jacobson v. Massachusetts. At the time, Massachusetts was one of 11 states that had compulsory vaccination laws. Jacobson was a Swedish immigrant who had a bad experience with a childhood vaccination. He refused the smallpox vaccination as an adult in Massachusetts. Jacobson was prosecuted and fined for refusing. He challenged the fine, claiming it was an invasion of his liberty. In a 7-2 decision the Supreme Court ruled that mandatory vaccination laws are not arbitrary or oppressive, as long as they don't "go so far beyond what was reasonably required for the safety of the public." Jacobson was affirmed in 1922 in Zucht v. King to support a school district refusing admittance to a student who was not vaccinated. That ruling was used as precedent in 2020 concerning cases resulting from COVID-19 policies.

There is a complicated history in the United States for compulsory healthcare with vulnerable communities. Coercive policies to force vaccinations might have produced results, but in 2021, we know better ways to encourage vaccination and public safety.

Education and restricting participation in certain activities, jobs and schools will likely be the vaccine policies going forward. We don't yet know exactly what activities will require proof of vaccinations, but such policies are not anything new. A "vaccine passport" on your phone will only serve to make the existing process of vaccine proof for schools, jobs and travel a little easier. This is a far cry from fascism or tyranny.

Mia Brett

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