The Supreme Court's baffling precedent about Christmas trees reveals the reality of Christian hegemony

Every year around this time we get to argue about the religious significance of Christmas symbols only to be told they’re really secular celebrations of winter holidays. Some places choose to decorate celebrating Christmas, Hanukkah and Kwanza while others pretend Christmas trees aren’t really Christian. Also if you make an issue of the obviously Christian decorations you’re treated as a killjoy grinch.

As a Jewish woman whose mother loves putting a Christmas tree up, I would really like to say none of this matters and just enjoy the holidays. But unfortunately, I have to be that little grinch and point out that the ubiquity of Christmas decorations, and the claim they’re really just secular, is a pretty big cause for concern. Honestly, it should violate the Establishment Clause of the Constitution but, since we live in a Christian country, the Supreme Court has convinced themselves Christmas trees are totally secular and for everyone.

There are a few reasons this discussion is particularly at the forefront of conversation this year. For one thing, Hanukkah was early this year (it's already over) so by the time many people put out inclusive holiday decorations with a menorah, it actually made no sense to have one.

Far from including everyone, these demonstrations usually just serve to show Jews that we are treated as alternative Christians and that the dominant society doesn’t bother to actually learn about our traditions.

Then there was the bizarre Fox reaction to an act of vandalism on their Christmas tree. Craig Tamanaha set fire to the Fox Christmas tree and has been charged with arson, criminal mischief and reckless endangerment. While there’s little evidence of motive, many at Fox are calling for hate crime charges and claiming that this attack of arson was an attack on Christianity (so I guess it's not a secular symbol?).

Oddly enough, another Fox host claimed the opposite when she said, “It’s a tree that unites us, that brings us together. It is about the Christmas spirit, it is about the holiday season, it is about Jesus, it is about Hanukkah.” Whatever you think Christmas trees symbolize, it's hard to understand their connection to Hanukkah. Sure, there are secular winter solstice celebrations that include decorating a tree, and historically we have a lot dating back to Saturnalia. And you can certainly enjoy putting up a Christmas tree if you’re an atheist, or my Jewish mother. But we all need to acknowledge that the ubiquity of Christmas symbols in America ultimately serves Christian hegemony.

Last week, a woman in California sued a local public school when they refused to allow her to put a menorah up as part of their annual tree lighting ceremony (they told her she could put a menorah ornament on the Christmas tree, which is what?). Their argument was that a menorah was a clear religious symbol while a decorated lit tree in the middle of winter with ornaments was not. A federal district court sided with the school by citing precedent from the Supreme Court.

You might be wondering why legal precedent supports putting up Christmas trees and only Christmas trees in public schools. And the answer is that the Supreme Court has ruled Christmas trees don’t violate the Establishment Clause … because they’re secular.

The Establishment Clause refers to the first clause of the First Amendment which reads: “Congress shall make no law respecting an establishment of religion.” For the first half of American history, that only applied to the federal government. There were many state-level laws that respected only Christianity or even only Protestantism. In the 19th century, states moved to disestablish state religion and in the 1940s the Supreme Court interpreted the Establishment Clause to apply to the states through the Fourteenth Amendment.

In 1971, the Supreme Court developed the “Lemon Test” to determine if a practice violates the Establishment Clause in Lemon v. Kurtzman. The court struck down a law that allowed reimbursement for teachers at Catholic schools. For a statute to be constitutional under the Establishment Clause, the statute must have a secular legislative purpose, its principal or primary effect must be one that neither advances nor inhibits religion and the statute must not foster an excessive entanglement with religion.

There are two cases in the 1980s that support public Christmas displays as long as they’re not overly religious. These cases have ruled that Santa, a nativity scene and a decorated Christmas tree are secular … somehow (the display also had a Season’s Greetings banner).

In Lynch v. Donnelly in 1984, the Supreme Court held that a seasonal holiday display, including Santa’s house, a Christmas tree and a nativity scene, did not advocate a specific religious purpose but instead had “legitimate secular purposes.” It had legitimate secular purposes, the court said, because Christmas was a recognized holiday by the government and had long been important in “Western Culture.”

In a more complicated, and kind of confusing decision, five years later, County of Allegheny v. ACLU, the Supreme Court ruled that an explicitly Christian nativity scene was unconstitutional, distinguished from the nativity scene in Lynch because there was nothing that wasn’t religious in the display, but that a separate display including a Christmas tree as well as a menorah was constitutional.

Therefore, while the court has acknowledged the display of a menorah as constitutional, it's unlikely they would force the school to include one when Christmas trees alone are also considered constitutional.

As I previously said, plenty of atheists put up Christmas trees and not all Christians around the world celebrate Christmas by putting up a tree. But in the United States a Christmas tree, a nativity scene, and honestly even Santa all have clear cultural, if not religious, connections to Christmas, which is a religious holiday. Cultural Christian hegemony is still an issue even without religious enforcement.

Additionally placing a menorah next to a Christmas tree isn’t enough to change that. There are many religions outside Christianity and Judaism that deserve to be respected. Plus, as I said, if the menorah is an afterthought without any connection to actual Jewish practice, it’s not actually being inclusive. Ultimately, recasting Christian cultural practices as secular only serve to support America as a Christian nation and alienate those who don’t belong to the tradition.

It’s not just abortion: Other fundamental rights are on the line as the Supreme Court hears challenge to Roe

After oral arguments in Dobbs last week, it seems a lot of white cis male journalists finally realized the attacks against abortion were kind of a big deal. Sure, a lot of women had been sounding the alarm about it for decades but who can hear over such high-pitched screeching?

Besides its not like the attacks against abortion are really going to affect these men, right? I mean they don’t need to get abortions and they mostly live in states that have their own laws protecting abortion or can even afford to send their girlfriends abroad if things get really bad. Except … there might be a tiny problem for them if Roe is overturned.

Because the thing is, Supreme Court cases that protect the right to use abortion and birth control are pretty important precedents for ensuring the right to privacy. If the attacks against “social issues” built on the right to privacy keep coming (and they will, don’t doubt it), I hope these men remember to clear their browser histories.

The legal argument around the right to abortion comes down to whether the right is protected in the constitution. In Roe v. Wade, the Supreme Court wrote that, "This right of privacy … founded in the 14th Amendment's concept of personal liberty and restrictions upon state action … is broad enough to encompass a woman's decision whether or not to terminate her pregnancy."

READ MORE: Supreme Court liberals, conservatives collide in abortion case

While many have argued abortion should have been protected through stronger constitutional grounds (I explain Justice Ginsburg’s Equal Protection argument in an earlier article), the constitutional protection remains in the right to privacy and personal liberty.

Planned Parenthood v. Casey further protects the right to abortion in a right to personal autonomy. Today, we rely on the right to privacy often in our daily lives but the protection remains contested. Arguably a right to privacy is embedded in the Fourth Amendment when one looks at protections against unreasonable search and seizure as well as the right to not have soldiers quartered in our homes. After all, why would police need warrants without an assumed right to privacy?

Despite this, the first case that explicitly recognized a right to privacy was Griswold v. Connecticut in 1965. While the right was recognized narrowly to protect the use of contraception between married couples, the court found there was an implied right to privacy in multiple amendments in the Bill of Rights. In Justice Harlan’s concurrence in Griswold, he argued for a right to privacy protection in the 14th Amendment, which has been the justification in later privacy cases. Eisenstadt v. Baird in 1971, which extended the right to birth control for unmarried people, and Roe v. Wade both cemented the right to privacy from the 14th Amendment.

In oral arguments in Dobbs v. Jackson, Mississippi Solicitor General Scott Stewart, arguing for a 15-week abortion ban, claimed abortion was not protected in the text of the constitution, but tried to distance any decision overturning Roe from also overturning a right to privacy.

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Justice Sonia Sotomayor pointed out that any argument for overturning Roe and Casey, that abortion is not protected in the text of the constitution, would clearly endanger other cases that rely on rights “discerned from the structure of the Constitution.” Even Marbury v. Madison, which protects the Supreme Court’s authority for judicial review, is based on a right “discerned from the structure of the Constitution” and not from the text.

Stewart obviously didn’t want to admit that tons of rights and cases would be in jeopardy from overruling Roe, so he attempted to draw a distinction between Roe and Casey and other cases that protect the use of birth control, private sexual activity or same-sex marriage.

Stewart argued the right to abortion is different from these other cases, because “Griswold, Lawrence, Obergefell, these are — these are cases that draw clear rules: you can't ban contraception, you can't ban intimate romantic relationships between consenting adults, can't ban marriage of people of the same sex,” he said. (I’m not sure how “you can’t ban abortion before viability” isn’t a similarly clear rule but nevertheless that’s his claim.)

Stewart’s second distinction is more problematic. He claims the right to abortion is different, because it’s the only right dealing with the purposeful termination of a “human life.” Putting aside the question of when a fetus becomes a “human life” for a minute, one could definitely argue there are other constitutional rights that deal with taking a life.

READ MORE: What you need to know about the Supreme Court case that could overturn Roe v. Wade

The state has the right to purposely terminate a human life with the death penalty, which has been interpreted to not be included in the Eighth Amendment protection against cruel and unusual punishment.

Additionally, since DC v. Heller in 2008, the court has interpreted the Second Amendment to include an individual right to carry a handgun for the purpose of self-defense, a right justices reiterated in oral arguments for NY State Rifle & Pistol v. Bruen. Sure, it's possible that shooting someone in self-defense wouldn’t always result in purposely terminating a human life but it’s clear the court recognizes the protection to terminate another person’s life in self-defense. I, and some common law scholars, would argue terminating an unwanted pregnancy is self-defense, considering how dangerous pregnancy is.

Whatever Stewart claimed, in Dobbs, about the safety of birth control, private sexual behavior and gay marriage, we know all these rights are in danger. We know this, because conservatives have told us.

Attacks on birth control have been increasing for the past two decades. Medical disinformation from conservative sources conflates birth control and plan B with abortion in attempts to outlaw birth control as well. The 2016 Republican platform, which was copied wholesale in 2020, includes promises to defend “traditional marriage. Amy Coney Barrett wouldn’t say in her confirmation if she supported birth control and gay marriage. The American Enterprise Institute, a right-wing think tank, expressed excitement at the possibility of rolling back all privacy protections after Kavanaugh’s appointment. And the architect of the Texas bounty hunter law, Jonathan Mitchell, has said that Lawrence v. Texas (protecting private sexual behavior) and Obergefell v. Hodges (protecting same sex marriage) are “as lawless as Roe.” He has indicated he’s coming for those rights next.

Ultimately, Roe v. Wade protects a lot more than abortion in terms of legal precedent. It, along with Griswold, are necessary stare decisis for our entire understanding of a fundamental right to privacy.

If we lose the right to an abortion, we likely will also lose important gay rights protections with attacks to Obergefell and Lawrence. But it’s also possible we will lose a lot more.

While Lawrence specifically concerned sodomy between two men, the decision protects all private sexual behavior. Losing the precedent for privacy protections could have far reaching repercussions for internet usage, sexual privacy and even private healthcare information.

You would think the people screaming HIPAA all the time might at least care about that.

Another terrifying case is before the Supreme Court -- and it has disturbing links to white supremacy

Another week, another terrifying abortion case at the Supreme Court. Today, the Supreme Court will consider Dobbs v. Jackson Women’s Health Organization, which concerns a Mississippi 15-week abortion ban. Since 15-week abortion bans, and all pre-viability abortion bans, are unconstitutional under Roe v. Wade, the only reason to even hear this case is for the Court to strongly consider upholding the ban and overturning Roe. While anti-abortion activists have been working toward this moment since the late 1970s, its no surprise they’re finding success in a moment of white backlash and growing white supremacy. The real history of abortion politics in this country should actually begin in 1662 with the first law codifying race and inheritable slavery.

The first 40 years of slavery in the North American British colonies treated slavery as it had been used previously in Europe. Slavery was mostly justified on the basis of religion or having conquered people and there were paths for slaves out of their enslavement. The slave system in Virginia completely changed with a 1662 law that made race and enslavement an inheritable condition through the mother. This law became the basis of the American racialized chattel system of slavery. It also clearly linked racial construction and the continuation of white supremacy to reproduction. Enslaved Black women would produce enslaved Black children while white women would produce free white children. The race of the fathers did not matter.

As a result of such a law, controlling the reproduction of women was vitally important both to produce more slave labor and to control white purity. White men had no downside to sexually abusing their slaves, as the resulting children would be considered Black. Alternatively, extreme social repercussions had to be placed on any white woman having sexual intercourse with a Black man, as the system could not tolerate Black kids being born free to white women.

Black women’s reproduction was a vital part of the American slave system, especially after the international slave trade was closed in 1808. Black women were forced to engage in sexual relationships with other slaves or were often sexually abused by their masters. Early gynecology was also created on the bodies of enslaved Black women, because their value was so tied to their reproduction. During slavery, abortion became a tool of agency for enslaved Black women to not only control their own reproduction, but also resist the slave system.

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For most of common law history, abortion was either explicitly allowed until quickening (when the baby moves) or ignored. Abortion, and most gynecological concerns, were the purview of women. While the laws might have only condoned abortions until quickening, there were rarely prosecutions for later abortions unless the abortion was a result of a violent assault against the mother. Abortions were performed by both tribal communities and early British colonies in the 1600s and used mostly safe herbal abortifacients. Anti-abortion laws began in the 1820s but only criminalized post-quickening. It wasn’t until after the Civil War that there was a focused movement to outlaw abortion.

The timing of a movement to criminalize abortion after the Civil War is not a coincidence. While Black people were enslaved, the supposed superiority of white people was evident through the difference in the legal treatment of the two races. However after the Civil War, Black people were no longer enslaved and so white supremacy needed new tools to continue enforcing the racial hierarchy.

These efforts were dependent on a high white birth rate and strong prohibitions against interracial sex (for white women and Black men at least). The post-Civil War period also coincided with an increase of “less desirable” immigrants and concerns that ethnic minorities would take over cities if pure white women did not have enough children.

This period also saw changing gender roles with more women working outside the home and engaging in suffrage movements, thus threatening traditional households and lowering the white birth rate. Moreover, male gynecologists who had just built their field by experimenting on enslaved Black women also needed to discredit midwives and less medicalized avenues of healthcare.

READ MORE: What you need to know about the Supreme Court case that could overturn Roe v. Wade

Abortion was mostly ignored as it was the purview of women, but as male doctors took over gynecology, they encouraged legislative responses to abortion. These doctors also joined with eugenicist movements and warned that abortion could result in “race suicide.”

These efforts were successful. Abortion was criminalized in every state by 1910. This was the Jim Crow period in the South and the height of anti-immigrant fervor in the North. Not only was it important to ensure white women were having pure white babies to protect white supremacy, but white supremacist ideology was also dependent on there being a contrast to Blackness. More Black children not only meant more laborers but also were necessary to support the hierarchical view of the United States with white men on top. The threat of lynching was used to enforce strict racial boundaries between white women and Black men so white women’s reproduction could be controlled and the pure white bloodline could be continued.

The success of the pro-abortion movement with Roe v. Wade in 1973 came only five years after Loving v. Virginia, which ended all bans on interracial marriage. While de facto segregation continued, de jure segregation had been outlawed and public places and schools were all theoretically integrated, even if that didn’t play out in practice. Nixon’s Southern Strategy capitalized on the conservative Christian values. Anti-abortion politics served as a more palatable political cause than anti-integration motives. The movements became inextricably linked.

Today, Republican politicians and far-right personalities are openly embracing “white replacement theory,” which is the newest name for the fear that there aren’t enough pure white babies being born. This eugenicist fear has the twist that a secret Jewish cabal is conspiring to encourage the non-white birth rate in order to harm white people.

RELATED: 'White nationalism and white supremacy is now a key ideology of the Republican Party: MSNBC's Mehdi Hasan

While the anti-abortion and white supremacist movements are clearly intertwined, many anti-abortionists now claim abortion is really a Black genocide and it is racist to support it. Their narrative relies on misinformation and a racist paternalistic view of Black people.

In reality, white supremacy can’t survive without an alternative Blackness to condemn. They use fear-mongering about Black welfare queens to get elected. Taking reproductive control away from white men and putting it in the hands of women and pregnant people of all races is the biggest threat to white supremacist patriarchy. Anti-abortion sentiment is always just white supremacy in disguise.

The warped history of self-defense law reveals a legacy of privilege

Kyle Rittenhouse was acquitted last week of shooting three people, killing two of them, because, he said, he feared for his life.

Some are claiming this verdict suggests that the legal system will be more supportive of those claiming self-defense at criminal trials. The United States Supreme Court has signaled its interest in striking down a New York gun regulation, because of its concern for poor commuters in New York City who need to defend themselves.

So once the Supreme Court allows me to carry a concealed weapon while walking around New York City, it sounds like I would be justified in shooting someone anytime my life is threatened. Perhaps the next time a strange man follows me home, I should shoot him. Or if a catcaller says something about raping me or if I'm alone in a subway car and a man sits down next to me -- perhaps I should shoot them all.

All of these situations pose a grave risk and all of them have happened to me many times over. It also seems that the "reasonable (wo)man" standard would justify the use of deadly force in the name of self-defense, as I'm sure most women in those situations also fear for their lives. But I'm guessing a jury wouldn't be so quick to let me off and society would probably enjoy classifying me as a "crazy" woman with a man-killing agenda. After all, Aileen Wuornos was executed.

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Historically, there have been groups explicitly excluded from claiming self-defense if they killed the person harming them. Common law drew a distinction between "justifiable homicides" that served the public good and personal killings in self-defense, which were "excusable homicides." In excusable homicides, people had a duty to retreat before using deadly force. In justifiable homicides, the killer could pursue the person, like if they committed a crime. There was no duty to retreat if one was at home, but this really was about protecting the property rights of land-owning white men. The duty to retreat even outside the home eroded in the 19th century with westward expansion and with contemporary "stand your ground" laws.

Self-defense was conceived as a right to protect one's person but also as a clear protection of property. It created a problem for people who were also legally included in property. Enslaved people obviously had no right to self-defense. Women were often legally included in the property of fathers and husbands. Enslaved people and (married) women had limited rights over their person historically.

Theoretically, intentionally killing a slave was illegal in most jurisdictions, but in practice it was rarely prosecuted. Since slave owners had broad power to enact physical punishment, there was no right to self-defense. Similarly, while interracial sex was illegal in many jurisdictions, and certainly publicly distasteful, that offered no protection for enslaved women raped by their masters. In 1855, an enslaved woman named Celia killed her owner after he had spent five years raping and producing at least one child. While the sexual abuse was well known and began when she was bought at 14, 12 jurors had no problem sentencing Celia to death for defending herself.

For (white) women, coverture was the legal theory that married women were legally covered within the protection of their husbands. This meant they did not have separate property and didn't need to vote, but also that they did not have the same physical rights.

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Dating back to common law, there was no legal cause of action for men raping their wives. It wasn't until 1993 that marital rape was illegal in all 50 states. While theoretically women still had the right to defend themselves against their husbands killing them, this legal understanding made that defense much harder to use. Rape was a legal cause of action for women if their rapist was not their husband, but it was rarely prosecuted in the 19th century. The more common charge was "seduction" in which a woman claimed a man convinced her to have sex with him under the false pretense that he would marry her. It was much harder to claim self-defense if courts didn't recognize your rights to bodily autonomy in the face of male violence.

Obviously today, self-defense is theoretically available to everyone in this country, and rape is a recognized cause of action for married and unmarried women. Unfortunately, the history of self-defense being the purview of white men still influences the legal culture in this country.

It's much harder to successfully claim self-defense for Black people when just owning a gun makes them seem guilty of something to many white people. Courts are also less likely to apply stand your ground laws to Black defendants, but there is an assumption that it is understandable for white defendants to be scared of Black men.

Self-defense laws are less likely to protect women defending themselves against abusers. Most require using deadly force only if she's in "imminent" danger. That means if women take an opportunity to kill their abusers when she's calm, she can't claim self-defense.

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Courts often don't let women use stand your ground laws to support self-defense claims because they kill men they have an ongoing relationship with or even with whom they share a legal residence.

Marissa Alexander was sentenced to 20 years after firing a warning shot in the vicinity of her abuser. It's possible that up to 90 percent of women in prison for killing a man had previously been abused by him. Women serve significantly longer sentences for killing intimate partners than men do despite the likelihood of killing the abuser.

Whatever people say about Kyle Rittenhouse, it's clear most of us can't shoot people anytime we feel threatened and get acquitted based on self-defense. Maddesyn George, a native woman who killed a white man who'd raped her, wasn't allowed to use a self-defense claim in federal court because prosecutors said she was the "initial aggressor."

Chrystul Kizer is fighting for her life in the same jurisdiction as Rittenhouse. In 2018, Kizer, then 17, killed a known sexual abuser after she had been trafficked. At first, a judge ruled she couldn't claim self-defense but his decision was overruled on appeal. The prosecution is still fighting that decision, claiming the killing was premeditated and the Wisconsin Supreme Court will decide if Kizer can claim self-defense as a trafficking victim.

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There are countless cases of women who survived and were punished by the criminal justice system for defending themselves.

The Rittenhouse verdict isn't a victory for self-defense. It's just another example of white men having different rights from the rest of us.


The alt-right faces a reckoning in court under a law designed for the KKK

Organizers of the 2017 Unite the Right Rally in Charlottesville are on trial for conspiracy to commit racially motivated violence in the federal lawsuit Sines v. Kessler brought by Integrity First For America.

The stated goals of the rally were to unite various factions of alt-right and neo-nazi groups to express racism and antisemitism but also to oppose the removal of a Robert E. Lee statue. The past few years have seen a strong backlash to President Obama's presidency and a white panic reaction to America's historical record becoming more accurate and inclusive. In a fitting response to their attempts to protect historical whitewashing, the men are charged under a 150-year-old federal law passed to disband the first Ku Klux Klan.

In 2017, there was a growing movement to remove historical monuments partially in response to the Charleston church massacre by white supremacist Dylann Roof in 2015. Roof had been radicalized by white supremacist websites and taken pictures with confederate symbols. He stated he wanted to start a race war before murdering nine people at the Holy City's historic Emanuel A.M.E. Church.

While many objected to the removal of confederate monuments because they were supposedly historically significant, those objections ignored what the actual historical significance was. Most statues weren't built after the Civil War as a monument to fallen soldiers, but instead were built years later during moments of racial tension.

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Many were built in the early 1900s during Jim Crow. Charlottesville's Lee statue was erected in 1924 while others were built in response to the civil rights movement in the 1950s and 1960s. These statues were clearly built to literally memorialize white supremacy in stone.

Monuments are rarely about history but instead about national myth-making. Consider how many more statues we have to soldiers than to activists. Monuments by definition don't present a nuanced historical analysis but instead mythic heroic image. When we protect confederate monuments we protect the mythos of the confederacy.

This commemoration of white supremacy and slave owners are what the Unite the Right Rally came out to protect in August 2017. They were protesting the decision of the Charlottesville City Council to remove the Robert E. Lee statue. Emboldened by Trump, neo-confederates, neo-nazis, white nationalists, klansmen, the alt-right, and even right-wing militias showed up brandishing swastikas, confederate flags, weapons and hate speech.

Earlier Richard Spencer organized a nighttime rally to protest the statue's removal. Alt-right groups brandished tiki torches and shouted "Jews will not replace us." There were violent clashes with counter-protestors and self-identified white supremacist James Alex Fields drove his car into a crowd, killing Heather Heyer.

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James Alex Fields was the only person who faced criminal charges, but in 2018 Integrity First For America brought a civil suit on behalf of nine plaintiffs against 25 neo-nazi organizers of the rally, including Richard Spencer, Jason Kessler, Andrew Anglin, Christopher Cantwell and multiple KKK groups. This lawsuit is attempting to hold these organizers responsible for conspiring to incite racially motivated violence leading to injuries. By using the Ku Klux Klan Act, or the Enforcement Act of 1871, the lawsuit links the Alt Right in Charlottesville to 150 years of white supremacist violence.

The Ku Klux Klan Act was passed by Congress after President Grant requested legislation to help address the reports of widespread racial threats in the South. This legislation was necessary to give him authority to intervene in state-level unrest. It also included provisions to bring federal civil suits against those depriving others of civil rights.

This particular provision has been codified into 42 U.S. Code § 1983 and is used as a civil-rights enforcement statute. The use of the act was limited after the Supreme Court required the involvement of "state action" in limiting someone's civil rights in the Civil Rights Cases in 1883. However, the Supreme Court revived the Enforcement Act in Monroe v. Pape in 1961. After the murders of civil rights activists in Mississippi, the FBI used the Ku Klux Klan Act to charge 18 people with conspiring to deprive the three men of their civil rights (local Mississippi prosecutors weren't interested in bringing criminal charges).

42 US 1983 has become one of the most important tools in civil rights litigation for all sorts of discrimination, and is currently being used by the NAACP to sue Donald Trump and Rudy Guiliani for conspiring with January 6 insurrectionists. But its original purpose was in breaking up the Klan. It seems fitting it's being used against alt-right groups.

Closing arguments began on Thursday after weeks of court testimony that the judge said proved conspiracy (in response to a defense motion to dismiss). Defendants testified as Richard Spencer attempted to read a racist manifesto and Christopher Cantwell spouted conspiracies.

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This trial should be seen as an important response to the alt-right movement, but has received a fraction of the coverage and attention of the Rittenhouse trial. While there seemed to be a momentary backlash against white supremacy in the wake of Charlottesville, the narrative that both sides are contributing to social unrest seems to continue.

As I mentioned in my column last week, the mostly peaceful BLM protests of last summer are being cast as another side of the violence of rallies like Charlottesville. Additionally, the conservative misinformation campaigns about critical race theory and the 1619 Project are dominating political coverage and the media seems to mostly accept fear mongering. In reality the current education fights are the same ones we were having about confederate monuments.

One side wants an accurate inclusive historical record while the other wants white supremacist mythmaking held up as history.

A bizarre twist of fate left these two crucial issues in the hands of the supreme court

In a bizarre twist of fate, it seems abortion and gun rights are intertwined at the Supreme Court. This past week, SCOTUS has heard oral arguments in two cases concerning SB8 (the Texas bounty hunter law) and a gun rights case from New York state. They also declined to hear two cases with significance for mandating abortion for insurance coverage and transgender healthcare. Shockingly, it's not all bad news out of the court but some of the good news on abortion could be owed to a brief from the Firearms Policy Coalition (yes, seriously).

The two abortion cases heard this past week concern the Texas bounty hunter abortion law (SB8) that places enforcement of a six-week abortion ban in the hands of private individuals suing people who aid in abortions. The court previously allowed this law to take effect (even though it's a blatantly unconstitutional attempt to avoid judicial review) in a shadow docket ruling on September 1.

The two cases the court heard this week aren't directly considering the constitutionality of the law, but instead considering if the law can actually avoid judicial review and if people can sue in federal court. Whole Women's Health v. Jackson was the original case before the court on September 1 when it declined injunctive relief. It is now back in front of the court, this time asking justices to consider the narrow question of who is allowed to sue. Similarly, the second SB8 case, United States v. Texas, also asked the court to consider who is allowed to sue but this time in a case brought by the Justice Department.

SB8 was designed to avoid judicial review in federal court by placing enforcement of the law in the hands of private individuals, not state actors. It also flouts long-accepted rules of civil procedure by allowing said private individuals to bring suits against abortion providers without experiencing any direct harm, and therefore without standing to bring the suit. The law really makes no sense from a legal standpoint and clearly is just a blatant attempt to pass an unconstitutional law while attempting to avoid federal courts calling it unconstitutional (which would usually require the involvement of state actors).

Despite their allowing SB8 to go into effect initially, it seems during oral arguments a few conservative justices finally woke up to the fact that this law is ridiculous and could have far-reaching implications beyond abortion law. The four justices (Kagan, Sotomayor, Breyer and Roberts) who wrote dissents in the decision to allow SB8 to go into effect seemed to remain consistent with that position. Alternatively, Alito, Gorsuch and Thomas seem happy to allow a ridiculous evasive scheme if it means outlawing abortion (although even Thomas pointed out that SB8 is an extreme law by allowing people who haven't been injured to bring suit). The original dissenters only need to pick up one vote to allow abortion providers to sue, and somehow oral arguments showed both Kavanaugh and Barrett being critical of SB8.

The justices were concerned that Texas was trying to exploit a loophole in judicial review, and that the financial threat would prevent abortion providers from performing abortions and then challenging the suits brought against them in federal court, but I think the threat to gun rights was probably most persuasive, particularly to Kavanaugh.

Kavanaugh cited a "friend of the court brief" from the Firearms Policy Coalition and expressed concern that other states could use this scheme to avoid judicial review to limit other constitutional rights. Normally, I don't think gun rights advocacy groups care too much about abortion, but they had harsh words for SB8, calling it "Texas's cavalier and contemptuous mechanism for avoiding federal review of a scheme intentionally designed to chill the exercise of constitutional rights as determined by this court's precedents."

While I'm happy the justices are recognizing the far-reaching implications for SB8 concerning other issues, the fact that gun rights are likely the most persuasive is already hurting us in another case.

Two days after SB8 oral arguments, the Supreme Court heard oral arguments in N.Y. State Rifle & Pistol v. Bruen. This case is challenging a 108-year-old law requiring that people show "proper cause" to get a license to carry a concealed handgun. Courts in New York have interpreted this to require people have a need beyond simply wanting to defend themselves and their property.

The challengers in this case, a gun rights advocacy group, claimed that the history of the United States shows that the text of the Second Amendment protects an individual right to carry a gun for self-defense.

Paul Clement, arguing for the challengers, claimed that the New York law serves to "convert a fundamental constitutional right to a privilege." Kind of a bizarre argument since the founders favored broad gun control measures and an individual right to carry a handgun wasn't recognized federally until 2008 in DC v. Heller. Even in Heller, Scalia emphasized that long-standing gun regulations like concealed carry bans should still be considered constitutional (something acknowledged by Kagan and Sotomayor). Similarly, Barbara Underwood, the solicitor general of New York, argued that public safety restrictions on carrying guns in public were common and well-accepted.

In a particularly bizarre line of questioning a number of the conservative justices objected to the fact that New York more readily grants gun licenses in less populated areas and is more restrictive in high-density urban areas. As a longtime New York City resident this seems like a no-brainer to me but Kavanaugh, Thomas, Alito and Roberts weren't so convinced (have any of them taken the subway?).

Roberts wonders how many muggings happen in the forest but doesn't consider that you don't have the self-defense options with a bear that you do on a crowded street with people everywhere. Alito actually seems to think it's reasonable for someone to use a gun inside a crowded subway car for self defense, which is terrifying as someone who actually takes the subway regularly. He knows bullets can ricochet in small metal spaces, right? Though Alito also thinks the subways are just filled to the brim with illegal guns so who knows. Luckily Breyer was actually useful and cited an amicus brief showing a correlation between violent crime and more permissive concealed-carry laws.

On the surface these cases seem to be connected, both concern state laws placing limits on constitutional rights, but in actuality they couldn't be more different. A concealed carry restriction is well within long-standing interpretations of the Second Amendment and supports a legitimate state interest while a six-week abortion ban explicitly violates all existing abortion precedent. Additionally SB8 is a bizarre legal scheme to undermine judicial review and upend civil procedure while New York's gun law is consistent with accepted legal principles.

Unfortunately, the justifications for allowing challenges to SB8 for Kavanaugh, the possible implications for gun rights, will likely also drive a number of the justices to strike down New York's gun law.

More concerning is whatever possible redress we get with the Texas bounty-hunter law is likely temporary. We still face a substantive challenge to abortion protections with the Supreme Court's agreeing to hear Dobbs v. Jackson Women's Health (a challenge to Mississippi's 15-week abortion ban) on December 1. Even so, it's still important for SB8 to be struck down because we should all be terrified of laws encouraging private enforcement and rewarding dragging your neighbors into court.

The dark history of American antisemitism

This past week has seen: antisemitic incidents in Austin, Texas; Sunrise DC, a climate activism group, refusing to be on a coalition with Jewish organizations with any connection to Israel; and the third anniversary of the Tree of Life massacre. This comes after a year of bizarrely comparing vaccine mandates to the Holocaust and four years after the Charlottesville rally where people chanted "Jews will not replace us."

Yet many still see these as aberrations in an otherwise accepting history of Jews in the US. In reality, the history of Jews in the US is one of marginalization, systemic violence and discrimination.

Jewish acceptance in American society was not static but instead fluctuated with changes in conceptions of race, legal interpretations of religious freedom, and the size of the Jewish population. (People don't tend to hate groups that are so small they're unaware of them.)

Anti-Jewish bigotry was brought with European colonization as it was very present in Christian Europe in the 1500s and 1600s. Jews as "Christ killers" dominated societal narratives. Jews had also faced massacres and blame for the Black death just a few centuries earlier.

While these views traveled with colonists to the "new world," there was little explicit bigotry against Jews in the early history of the United States because there simply wasn't a large enough population. However, that doesn't mean Jews living in the North American colonies, and then the United States, didn't face legal discrimination.

As I mentioned in an earlier column, most of the North American colonies had established Christian religions and required engagement in the church for civic participation. While some states disestablished their state religions with their new constitutions, Connecticut, New Hampshire, Massachusetts, Maryland, Rhode Island and South Carolina didn't (New York was the only state that, in 1790, had no restrictions on civic participation based on religion).

It wasn't until 1877 that (white-skinned) Jews could universally hold public office and vote in all states, though Jews still faced obstacles to voting if it was held on a Saturday or if they didn't speak English (there were no Yiddish translations of ballots at this time). Many courts also judged the veracity of witnesses based on their belief in Jesus Christ well into the 19th century and didn't allow for Jews to swear oaths according to their own religious customs.

As religious restrictions on civic participation eased, the Jewish population in the United States grew and they faced more explicit societal bigotry. The 1850s saw increased clashes between Catholics and Jews in cities. Some Catholic priests refused to take confession if people worked for Jews. A number of newspapers ran articles warning about Jews and heavily influenced by anti-Jewish stereotypes.

In California, a law was proposed to levy a tax on Jews to keep them out of the state (though it did not pass). The Civil War saw more anti-Jewish bigotry with newspapers accusing Jews of financing the Confederacy. Some newspapers specifically accused, with little evidence, the Rothschilds and "foreign Jew Bankers.")

The Rothschilds responded, telling the State Department not only were they not financing the Confederacy but they opposed slavery. Possibly influenced by this, in 1862 General Grant expelled Jews from his military district. Lincoln rescinded the order a few months later but privately General in Chief of the Army, Henry Halleck apparently told Grant that Lincoln agreed with expelling "Jew Peddlers."

Antisemitism only intensified in the years after the Civil War with increased racial tension and nativism. A constitutional amendment to recognize the authority of God and scriptural law, which had been proposed during the Civil War, was gaining support in the 1870s with a campaign spearheaded by Supreme Court Justice William Strong.

The revivalist and anti-Jewish campaign of the Reverend Dwight Moody also gained popularity in the 1870s. Moody traveled to cities regaling listeners with detailed stories about how the Jews killed Christ, including an incident in which Moody claimed a group of Jews gathered in Paris in 1873 to boast of killing the "Christian's God." Growing antisemitism encouraged a renewed interest in "Sunday Law" prosecutions which arrested Jews for doing business on Sundays.

In the South, growing antisemitism took a more violent extrajudicial approach. In 1868, a Jewish store owner, Samuel Bierfield, was lynched along with his African-American clerk, Lawrence Bowman, in Tennessee. It was assumed both were killed by the KKK due to Bierfield being too friendly with Black people. No one was ever held accountable for their deaths. Samuel Fleishman was killed a year later in Florida supposedly because he defended Black people.

His likely murderer was a partisan Democrat who likely fled to Texas after also killing a Black man. Similarly, a man named WM Lucy was supposedly murdered in Florida in 1871 for being a Jewish Republican who got along with Black people. These were not isolated incidents.

There are many reports of murdered Jews in this period and even more intimidation to drive Jews store owners and peddlers out of Southern communities. The vigilante farmer Whitecapping movement targeted racial minorities and specifically Jews. They scapegoated Northern Jewish peddlers for their economic problems. It's important to emphasize that while these movements didn't necessarily consider Eastern European Jews "white," violence targeted white-skinned Jews. The stereotypes couldn't even conceive of non-white-skinned Jews.

Possibly the most famous example of anti-Jewish violence in the US was the lynching of Leo Frank in 1915. He was a factory superintendent convicted of killing 13-year-old Mary Fagan in Atlanta on very flimsy evidence. When the governor commuted his sentence from the death penalty to life in prison, a mob broke into the jail and lynched Frank in Marietta, Georgia. No one was ever punished for his death.

While violence against Jews was much less common than against Black Americans, there were similar justifications for bigotry against Jewish men — that white women must be protected from sexual perverts. Ten years after Frank was lynched, a North Carolina mob castrated Joseph Needleman after a white Christian woman accused him of rape. (His attackers were found guilty, a rare outcome). In the North, Jews were criminalized as part of the white slavery panic. It was feared "racialized men" were pressing virtuous Christian girls into prostitution.

The criminalization of Jewish immigrants came at a dangerous time when immigration laws were changing and the Jewish community was terrified of denaturalization. Eastern European Jews had technically been classified as "white" for the purposes of naturalization law but that status always felt precarious. While their naturalization status didn't change, Jews did face increased obstacles to immigration with the quota system of the 1924 Immigration Act, which ultimately blocked many Jewish refugees fleeing Nazi Germany.

Additionally, the Naturalization Act of 1906 federalized the naturalization process, and also formally defined denaturalization powers for federal attorneys. Formalizing denaturalization processes created classes of people with a form of "conditional citizenship." This status was imposed on politically active Jewish immigrants who faced deportation and denaturalization at higher rates than other groups.

Emma Goldman was the first person to be denaturalized under this law in 1919. The same year, six Jewish anarchists brought a case to the Supreme Court challenging their conviction under the Espionage Act of 1917 for distributing pamphlets discouraging registering for the draft. The convictions were upheld and four were deported.

This long article is just a snapshot of the history of antisemitism in the United States but it hopefully will start to make people see antisemitic incidents as a part of a larger pattern rather than a momentary disruption to the idea of the "melting pot" acceptance.

Also while this article is mostly concerned with antisemitism against white-skinned Jews, there are Jews of all races that face intersecting levels of oppression and bigotry. Ultimately, the lie that Jews have been historically accepted in American society only serves to cause harm and drive a wedge between marginalized communities.

White America might pretend that if white-skinned Jews act a certain way, we'll be assimilated into whiteness. But our liberation only comes through solidarity with other groups targeted by white supremacy.

The seedy history behind gerrymandering and the fight to preserve white power

Maps are being redrawn all over the country in response to last year's census. Unfortunately, the process currently leaves a lot of room for partisan gerrymandering. It is the first time since the passage of the Voting Rights Act that district maps will be drawn without the preclearance requirement of the Voting Rights Act for many states.

A 2019 Supreme Court case also makes it impossible to bring gerrymander cases to federal courts on the basis of partisanship. Luckily some states have passed redistricting reforms since the last census. Others have divided legislatures where partisan abuse is less likely. But there are states that will attempt to draw maps in blatantly partisan ways, particularly to protect Republican political power.

The practice of manipulating voting districts for political power — ie, gerrymandering — wasn't invented in the US but it's hard to say we didn't perfect it. In 18th-century Britain, districts called "rotten boroughs" were drawn with few voters to ensure certain representatives were elected to Parliament. Gerrymandered districts have existed since the inception of US congressional districts, but initially the districts were still drawn in relatively normal ways.

The term "gerrymander" was coined after an 1812 Massachusetts state senate district map was drawn and signed into law by then Governor Elbridge Gerry. The map drew a long thin district that sliced up Essex County, which usually voted for the Federalist Party, in order to help the Democratic-Republicans. As a result, a county that had elected five Federalist representatives elected three Democratic-Republicans and only two Federalists. Federalists won over 1,500 more votes statewide but elected only 11 representatives while Democratic-Republicans elected 29. Ultimately, the extreme district map caused a backlash and Federalists soon regained power and redrew the district map.

The bill was seen as a partisan vendetta by many Federalists and when a satirical cartoon was drawn Elbridge Gerry's name was used to describe the salamander-like monster. Thus the term "gerrymander" was born. While obviously not the first time districts were drawn in a way to consolidate political power, the Massachusetts map was the first example of a district drawn in a clearly ridiculous way.

In 1842, Congress passed the Apportionment Act. It required districts to be geographically contiguous but there's little evidence it was enforced. Once Black men gained the right to vote, the use of gerrymandering grew with a vengeance. States redrew their maps more often after the Civil War to advantage the Republican and the Democratic parties. Democrat-controlled Ohio redrew its congressional districts six times between 1878 and 1890 to ensure Democrats were in control of the state. In 1888, Pennsylvania redrew its map so Republicans could retain their majority in the state House.

After the Civil War, gerrymandering not only caused partisan results but was used to disenfranchise Black voters, specifically as a response to the Black political power gained during reconstruction. In 1876, a Texas newspaper commented that the racist gerrymanders disenfranchised Black voters by "indirection." Mississippi created a "shoestring district" and South Carolina drew a "boa constrictor" district in order to disenfranchise Black voters. This "boa constrictor" district linked every Black precinct that could be connected by even the smallest land continuity. By isolating Black voters , the violent intimidation or outright fraud needed to disenfranchise them became much easier. Along with poll taxes, literacy tests and all-white primaries, racist gerrymanders successfully disenfranchised Black voters in the South until the civil rights movement.

In the 1960s, the Supreme Court issued a number of opinions dubbed the "redistricting revolution" to address gerrymandered districts. In 1960, the court found that district lines drawn with the intention of disenfranchising Black voters violated the 15th Amendment in Gomillion v. Lightfoot. Justice Frankfurter's opinion held that an Alabama act that created a Tuskegee district that excluded nearly all Black voters effectively denied people their vote to vote on the basis of race. Overturning the 1946 decision Colegrove v. Green, which held that malapportioned congressional districts were not the purview of the federal judiciary, Baker v. Carr in 1962 held that redistricting issues could be brought to federal courts under the 14th amendment. Two years later the Supreme Court decided two cases, Wesberry v. Sanders and Reynolds v. Sims, requiring that electoral districts be established based on equal population and the principle of "one person, one vote."

While important precedent that forced maps to be redrawn, the requirement of uniform population did not stop districts from being drawn in bizarre shapes to protect partisan power. In 1993, in Shaw v. Reno, the Supreme Court held that a bizarrely shaped district is strongly indicative of "racial intent" and therefore will be struck down for violating the Equal Protection Clause if no other reason for the shape can be given. While certainly a step in the right direction, Shaw didn't exactly end the practice of drawing ridiculously shaped districts. Additionally, Shelby v. Holder will likely make it easier to get racist gerrymanders into effect because preclearance is no longer required.

In 2019, the Supreme Court dealt a huge blow to efforts at fixing partisan gerrymandering. In Rucho v. Common Cause the court held that partisan gerrymandering is not an issue for federal courts to consider and is only the purview of state courts or legislative action. Under the 2017 decision Cooper v. Harris, cases can bring issues of racist gerrymandering to the federal court system, but they have to prove race was the predominant factor in drawing the district and that the state didn't have a compelling state interest, like protecting minority voting rights at which time race can be a consideration.

Two weeks ago, Texas released a redistricting map that prompted a lawsuit alleging intentional discrimination against Hispanic voters. Since the lawsuit concerns racist gerrymandering and not just partisanship, it can be brought in federal court. But it's not yet clear how it will be received. Under the proposed Freedom to Vote Act, this type of gerrymandering would not be allowed and neutral redistricting standards would be imposed. The act also would provide more power to courts to adjudicate issues with gerrymandering more quickly.

Unfortunately in the most recent Senate vote, the bill was blocked in a 51-49 vote because Democrats don't have enough votes to override the filibuster. Republicans are blocking the bill but the current redistricting reform is actually based on a 30-year-old Republican proposal. Senate Majority Leader Chuck Schumer is still promising to fight for the bill but we likely will continue to need West Virginia Senator Manchin and Arizona Senator Kyrsten Sinema to agree to filibuster reform if we have any hope of passing the legislation.

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.