28 October 2023

Some Requested Harsh Criticism

So, Judge Ho, you invite some harsh criticism? How about of your lack of reality orientation when you proclaim that there's "viewpoint discrimination" against "religious conservatives" on college campuses, and compare that to your own institution for a moment? In no particular order:

  • I have yet to see a campus-wide holiday at a non-religious-sponsored institution of higher education for Rosh Hoshanah, Pesach… and perhaps most important given the tenor of your screed, Erev Yom Kippur. (You just don't get much more "religious conservative" than Orthodox Judaism!) Or, more to the point, for Eid al-Adha (apologies for the inherent transliteration error — a problem that, for all of the difficulties with transliterating modern Hebrew, seems well beyond the sensibilities of English and Romance-language lexicographers)…

    Conversely, Judge Ho, your own court persists in issuing opinions on Martin Luther King Day and on Indigenous Persons'/Columbus Day… but not on Good Friday (the most illogically-named day of the Christian calendar, when there's a celebration of killing the purported savior… and no acknowledgment whatsoever of the surviving "family," whether that family is by birth or otherwise), which — on the formal, recognized calendar — isn't a holiday. Well, except for banks (cf., e.g., Matt. 21:12–13, and in this sense I revel in the Devil's ability — indeed, professional obligation — to cite scripture, and specifically soundbite and quotemine from it; because that's what common-law lawyers do).

  • Go ahead. Try being an atheist on one of those Fridays right before tax day ("render unto Caesar" and all that), trying desperately to assist a client with marginal English-language and/or computer skills — or who has just had a death in the family, or is preparing for Pesach in some years — in getting missing bank statements necessary to prepare a tax return. Oh, they can just take an extension, and pay the interest (or further delay any refund due)? Because your religion allows — indeed, essentially requires — banks, the IRS itself, and too many others in modern society to take an extra holiday during one of the most stressful times of the year for the poor customers (but not for the banks themselves, as their own returns are due on a different date). It appears that the words mean exactly what you declare them to be — nothing more, nothing less, and regardless of context.
  • Conversely, just see how much "accommodation" you get for celebrating Darwin Day as a holiday, as a day to reflect on the majesty of life's diversity and process — even in a university biology department. In this context in particular, it's worth remembering that there were atheists before there were Christians (or, more to the point members of any of the Tribes, and let's not get started on how that relates to defining the canon or who has the privilege of proclaiming reliance on the "original text").

Notice that none of that goes to the self-aggrandizing power politics and bigoted bullshit of determinative originalism, which if applied consistently would prohibit "religious conservatives" from consuming any tasty bacon or shrimp cocktails (Leviticus 11), and remember that under the "original text" Judge Ho's own ancestors might well have been excluded from entry to the nation, let alone citizenship. Further, although we've sort-of repudiated it, those of you with ancestors who were Over Here prior to the late 1860s need to atone for "all other persons" — mine weren't, nyaahnyaahnyaah (if ancestral guilt matters, my ancestors committed plenty of other sins, secular and otherwise — just not that one).

Oh, wait, we can change the meaning of "original texts" by amendments that reflect changed understandings? Even in a decade or less? Because that's what the New Testament texts post-Civil War amendments do? Doesn't that inherently make the Constitution a "living" document — particularly when the document itself embeds a way to to formally change its text to conform to reality, and the office you hold is charged with interpreting it in conjunction with reality and the facts placed before it in a particular dispute (even under the rejected-by-American-secession English constitution)?

I'm just getting started. But there's a football match on momentarily (an originalist football match, in which all of the players kick the damned ball with their feet), so I'll sign off for now. This is just a taste of some harsh criticism — and, in particular, it is not oriented toward any particular matter that I know to be before the Fifth Circuit (not even sitting en banc), so there's no potential "interference with judicial impartiality" issue. And it's definitely worth remembering that self-appointed martyrdom is not exactly turning the other cheek…