What Bears Say About Diversity

As I was reading the arguments of some Baylor University faculty against the hiring of a chief diversity officer, I fell asleep and had the following dream:

I was in a deep forest and came upon what identified itself as a village of polar bears. I was surprised to find polar bears in a warm forest — I would have expected to encounter the more common brown bears (called “grizzly bears” by some) or black bears. I decided to get close enough to listen but not be seen.

One bear standing up on his hind legs in the middle of the group was warning the other bears that the village was on the verge of extinction: “Look around the forest at the young bears. So many grizzly bears, so many black bears, and then look at the leaders of this village. If we don’t invite in other kinds of bears, we won’t survive.”

A second bear, who clearly was merely an albino bear rather than a true polar bear, stood up and shouted for the first bear to sit down: “What you say is fine for other villages, but we are not other villages! The Lord Bear has put us here to be different from the other villages.”

The first bear noted that the Lord Bear had commanded them to reach out to the needy, and surely that would include bears barred from being village leaders in the days of old. Albino bear responded that it would offend the Lord Bear to allow any bear into the village except on the basis of merit. The first bear asked, “But didn’t the Lord Bear tell us in the parable of the vineyard not to complain that the workers who devoted the most hours got paid the same as those who arrived later?”

Albino bear countered that the parable was “just a story.” He added that “the one thing I am certain of is that the Lord Bear always saw people as individuals, not as groups, so it would be a sin to encourage any particular kind of bear to come into the village.”

The first bear asked, “Didn’t our Lord Bear repeatedly condemn the Pharisees as a group for focusing on displays of piety rather than on helping needy bears?”

“That was then, this is now,” said the albino bear.

“What about the parable of the good Samaritan? The Lord Bear identified as our model of behavior someone from a group that was hated,” offered the first bear.

The albino bear dismissed that too as just a story: “Surely the Lord Bear would not want even Samaritans to be given any unfair advantage over others.”

The first bear inquired what the Lord Bear meant by saying that “the last shall be first and the first shall be last.”

Albino bear grew angrier and again shouted for the first bear to sit down. He yelled that “it is not our fault the vast majority of the leaders of this village are polar bears. It is merely coincidence.”

“That 87 percent of us are polar bears, when the forest all around us is so much less . . . well, pale?” queried the first bear.

Albino bear insisted, “We hold our positions by merit alone!”

The first bear asked if albino bear had been born to grizzly bear parents, would he have ended up a leader in the village? “All your hard work in choosing to be born to polar bear parents, is that the merit of which you speak?”

Albino bear, now even more frustrated, began stuttering. “We . . . we . . . we have a diverse village. Possibly already too diverse.”

Albino bear caught his breath and outstretched his paws for emphasis: “Surely you all have watched our games of honeyball? We let grizzly bears and black bears play for us! Even lady bears! How can you claim we do not include everyone in the life of the village?”

Several bears applauded at what they considered a well-made point. But then the first bear added, “play for us without pay, that is . . . ”

Because the honeyball teams were considered sacred in the village, this last comment caused all the bears to start arguing among themselves, clawing and snapping their large teeth. I realized it was no longer safe for me to be there.

Before I headed back into the deep forest I paused to write out a marker that I hung from a nearby tree. I knew that when others came upon the site in the future they would wonder how it went from being such an important bear village to being decayed and abandoned.

I wrote: “In this place once was a great village of a species known as shortsighted albino bears. Like many other now-extinct creatures of this forest, the one thing they were most certain of is that there was no need for change.”

–David Schleicher is an attorney with offices in Waco, Houston and Washington, D.C.
This column originally appeared in the Waco Tribune-Herald on 1/20/2016, at A8]

Trump’s Secret VP List

Donald Trump’s loss is your gain. Left behind on a podium in a flurry of bluster were these handwritten notes on the surprising applicants to be his vice president. Now you know what strange bedfellows his powerhouse politics have made:

Kim Davis: “Too close to the pope and his little loser car.”

Ryan Bundy: “That family loves America as much as I do! But you know how I feel about the handicapped, so save his resume for director of the National Park Service.”

Pizza Rat: “Tremendous energy but can VP also be from NY?”

Jeb Bush: “Wouldn’t even hire him to clean my gold toilets. Stupid. Weak. Horrible.”

Abu Bakr al-Baghdadi: “Tough guy! But could Huckabee deliver same voters?”

Supreme Leader Snoke: “No way! Schlonged us as W’s VP.”

Melania Trump: “Won’t get along with my next wife.”

Bernie Sanders: “No way! More ticked off than even my voters!”

Chris Christie: “No huge felons on my ticket!”

Bill Clinton: “Amazingly coercive of women. I wouldn’t even treat my daughters that way!”

Bill Cosby: “No way! See Bill Clinton note. See Christie note. Disgusting!”

Vladimir Putin: “In my top three . . . we’d make amazing power couple.”

Ted Cruz: “A stiff! Sycophant! Hmmm . . . make him an offer.”

Meanwhile, constitutional scholars note with alarm that there is no express prohibition on a presidential candidate naming himself as his own running mate.

By David Schleicher, Trib Board of Contributors

{Originally appeared in Waco Tribune-Herald on January 10, 2016}

Trump’s 2016 Resolutions

As we hit the holidays full speed, I was grateful to obtain from a confidential inside source a pre-release copy of the “Donald J. Trump Campaign for President official New Year’s Resolutions”:

• Investigate St. Nick with regard to that long white beard. Makes him look like he might be an imam.

• Attempt to relocate Statue of Liberty from New York Harbor. Those robes look suspiciously close to a burka and she’s started attracting the wrong kind of crowd.

• Hire Ted Cruz as my running mate/mini-me.

• During next debate, make Jeb Bush cry.

• Determine if anyone new left to insult beyond my Muslim, immigrant, heavy-set, female, disabled and Jewish friends (each of whom is fabulous, really, and agrees with me).

• Complete construction of wall within Seven Springs mansion, to keep from having to listen to Melania’s conversations in Russian with her mysterious new friends.

• Send ISIS card thanking them for all they’ve done for my campaign, in response to the card they sent expressing appreciation for all I’ve done to help their recruitment.

• Spend less time talking about “me” and “I” [and more time talking about “The Donald”].

• Get phoenix approved as new national bird, to celebrate the political party I will raise out of the ashes of the Republican one.

• Thank-you note to Bill Clinton for encouraging me to get into the presidential campaign.

• Funnel $50,000 into Bernie Sanders’ campaign, split among 10,000 anonymous donations of $5 each.

• Shut down the Internet on my birthday, for a time of national reflection.

• Contact Kim Jong-un again to get that number for the barber he so highly recommended.

• Bask in the fact that I am still the Reason for the (campaign) Season.

• Record CD of holiday songs with Vladimir Putin. It will be tremendous. Really tremendous.

Having read this list, I began in earnest looking again on the NASA website for the application to join the first human mission to Mars.

David Schleicher is an attorney with offices in Waco, D.C., and Houston and member of the Waco Tribune-Herald Board of Contributors.

Posted: Saturday, December 19, 2015 12:01 am at WacoTrib.com.

The Other News from Rome

My watching of news of the arrival of Pope Francis in the U.S. was interrupted by a Discovery Channel news bulletin about an exciting find from the reign of Roman emperor Tiberius Julius Caesar. It is amazing to learn the odd sorts of things that got them upset back in those iron-age days.

The same famous biblical archeologists who discovered Pilate’s Memo for the Record about Christ’s crucifixion this time uncovered an earlier intelligence briefing (“Intelligentia Propter”) prepared for Caesar, also about Jesus. These are highlights of the translation of the precious papyrus papers:

  • Roman Senator Georgeus Voluntas complained that Jesus was damaging the empire’s economy by encouraging citizens to sell all they had and follow him.
  • Praetorian Prefects Jebius Rubi raised concerns that Jesus was overstepping from religious teaching into economic policy by warning followers not to store up treasure on earth. He explained this could do great damage to the Roman stock market (“forum”).
  • Consul Orangeus Maximus proposed scaring Jesus into believing he should be less interested in economic inequality than about the remnants of the Pannonian revolt coming by sea to invade Judea.
  • The builders of chariots and makers of swords expressed great alarm that Jesus urged that the response to violence be to turn the other cheek. Several asked if Jesus could be persuaded to explain he only meant this figuratively and in no way was criticizing the war effort.
  • A moneychangers group complained Jesus reorganized the bank operating in the Jerusalem temple.
  • Religious leaders from Judea protested that Jesus spent too much of his time with prostitutes, internal revenue agents and other ne’er-do-wells, causing their parishioners to question their rules-based religion. Others complained Jesus never spoke out against the rampant homosexuality in the Empire.
  • An unnamed group of (left-leaning) senators argued that Jesus was too conservative, for condemning divorce while failing to challenge degradation caused by large-scale domestication of cows, sheep, and goats.
  • Centurio Primus Pilus Rushus Limbogus asserted that Jesus’ telling people they would be cast into a lake of fire if they did not feed the hungry and clothe the naked promoted a culture of dependency.
  • A source identified only by the initials “J.I.” claimed to be not only a Christ follower but even in Jesus’ inner-circle. This “J.I.” queried whether Jesus’ extreme behavior had become “unchristian.”
There are scribbles in the margins of the document, apparently by Tiberius himself, concluding that these problems were the natural result of Jesus trying too hard to be popular. At the bottom of the briefing is a routing stamp showing the matter was referred to Pilate for appropriate action.

David Schleicher is an attorney with offices in Waco, Houston and Washington, D.C.

This column originally appeared in the Waco Tribune-Herald, where David is a member of the Board of Contributors.

Why This Democrat Touts Trump — by David Schleicher

You may be shocked to hear this former County Democratic Party Chair singing the praises of Donald Trump, also known as “The Donald” or “The Great I Am.” I’ve not lost my marbles, nor do I have bats in the belfry, nor am I nutty as a fruitcake; I have not gone full poodle. No, my support for the Orange Dream is extremely rational:

1. He’s very entertaining. After hours watching his rallies and press conferences, I could view another hundred without an urge to channel surf.

2. I have some very smart and kind friends from around the country who support him. Surely they can’t all be wrong. Can they?

3. He’s first among his peers: Bush bores me; Cruz curdles my blood; Christie clogs my arteries; Fiorina’s a flop; Huckabee merits a har har; Santorum is sanctimonious. Perry? He’s oopstastic.

4. He says what he thinks. His primary opponents say what they think you think they should think.

5. He would pump money into the poorest parts of Texas and greatly reduce unemployment there, what with all those positions for wall builders.

6. As in elementary school, bullies run the world. It’s about time America had its own.

7. He’s mucho media savvy, knowing whom to insult when and which talk show host ring to kiss.

8. He cheats at golf, allowing him to focus his efforts at honesty on more important matters.

9. He’s really ticked off Fox News — something I’ve tried to do for years without success.

10. Last but not least of all, I desperately want Hillary to win in November 2016.

[As run in the Waco Tribune-Herald, 9/6/2015.]

David Schleicher is an attorney with offices in Waco, Houston, and Washington, D.C. He was formerly the chairman of the McLennan County Democratic Party and is a member of the Trib’s Board of Contributors.

Answers to 5 Questions on Supreme Court Same-Sex Marriage Ruling

Here are five answers to nagging questions regarding the same-sex marriage ruling issued last month by the U.S. Supreme Court:

Will ministers be forced to perform same-sex marriages? No.

This concern is wholly mythological. The First Amendment’s protection of religious liberty means that no court will force a clergy member to marry someone whose marriage they do not approve of. For example, no U.S. court has forced a minister to conduct an interracial or interfaith marriage, even though it remains generally illegal for businesses to discriminate on the basis of race or religion.

Will county clerks be forced to issue marriage licenses to same-sex couples? Yes.

Issuing a marriage license is considered a non-discretionary duty of a county clerk who is assigned to that position by law. Consider that a county clerk who for religious reasons does not want to issue a marriage license to someone who is divorced or to an interracial couple is not allowed to override his or her legal duties on the basis of those religious beliefs. This principle likewise applies to same-sex marriages. To avoid having to violate his or her religious beliefs by complying with the law, a county clerk is free to resign and forego being paid by the public to perform such duties.

I predict none of the few remaining clerks in Texas who still refuse to comply with the Supreme Court decision will prove willing to spend even a day in jail for contempt of court and so will eventually comply or not run for re-election. Even judges who disagreed with the high court’s ruling are likely to view an ongoing refusal to comply with it as a threat to their own judicial authority.

Is an employee of a county clerk’s office required to take part in the process of issuing a marriage license to same-sex couples? Yet to be determined.

In some situations, courts traditionally hold that promoting equality overrides beliefs of individual government employees to the contrary. For example, someone who believed it was against God’s law to allow women to drive generally would not be allowed to work in a driver’s license office and refuse service to female applicants. On the other hand, the law generally protects an employee’s sincere religious beliefs if they do not impose an undue burden on the employer. So an employee who believes for religious reasons that it is immoral to work on Saturday generally is allowed to refuse to be scheduled on Saturdays so long as there are a sufficient number of other employees willing to provide work coverage for that day.

The outcome to this question thus is likely to turn on whether the court analyzes it as being similar to the first situation (equality overriding personal beliefs to the contrary) or the second (accommodating religious beliefs when not interfering with the employer’s operations). Different judges may rule different ways on which it is, so it may take some time for this issue to get resolved. On the other hand, if there are sufficient employees in a clerk’s office that a same-sex couple ends up with a license even though some employees won’t participate, then the question might never reach court.

Now that the Constitution protects same-sex marriage, will polygamy have to be allowed too? No time soon.

The modern trend in Westernized countries has been toward greater acceptance and inclusion of same-sex marriage, in spite of its lacking the endorsement of history. By contrast, polygamy was widely accepted in the past, for example not being expressly condemned by the Bible. But over time polygamy became less recognized.

Same-sex marriage bans were stricken down in part because opponents could not persuasively verbalize or demonstrate a concrete harm they caused beyond offending the religious and cultural beliefs of some citizens. By contrast, polygamy opponents point to the inferior status of women in polygamous cultures; that polygamy often involves underage females matched with older males; and that polygamous families are assumed by some to be gaming public services by using welfare or food stamps to sustain the multi-spousal arrangement.

While marriage between two people may help resolve legal questions such as who inherits someone’s property if they die, having multiple spouses could complicate them, such as with inheritance and deciding which spouse has the right to decide whether to remove life support during a terminal illness. Television shows such as “Sister Wives” have made progress in reducing some negative stereotypes, but polygamy is unlikely to find the number of sympathetic judges, lawmakers and ministers that ended up supporting same-sex marriage.

Many families have at least one member — even if a distant relative — who has come out as gay, leading same-sex marriage to seem less radical over time. But most still do not know a relative who is a polygamist. Even with a majority of Americans telling pollsters they were no longer opposed to gay marriage, the Supreme Court still just barely granted it protection with a 5-4 vote. With that narrow a margin for same-sex marriage, polygamy can expect to have a very long wait in line for protection.

Is it now illegal to fire someone for being gay? Or to sell them a wedding cake? Depends where you live.

While the Supreme Court ruled that states cannot outlaw same-sex marriage, that did not change whether or not it is legal to discriminate against LGBTQ people in other aspects of life. Where a city and state (like Texas) has not added sexual orientation to the list of prohibited grounds of discrimination (a list that traditionally includes things like race, religion, age and gender), it may still be legal to fire someone or to refuse to serve them on that basis. For example, in many Texas towns, a couple that went to the bakery to buy a cake for their same-sex marriage could be turned away without legal remedy and then fired from their jobs the next day when their boss found out about their plans, again without legal remedy for the couple.

Courts have held that firing someone for not complying with gender stereotypes is a form of sex discrimination — such as getting rid of a female lawyer for being aggressive when a male member of the firm is praised for his aggressiveness. Lately some courts have held that firing a male for being gay can be the equivalent of firing him for not meeting stereotypes of what a male should be like and so it is prohibited gender discrimination. Other courts by contrast have ruled that if Congress wanted to ban private employer discrimination against gays, it would have directly done so, but it has not.

Unless you are in a state or city where sexual orientation discrimination is expressly prohibited, more often than not it is still legal to fire someone for being lesbian or gay or to refuse them service on that basis. Proponents of same-sex marriage, having been victorious, now can be expected to turn their sights on banning sexual orientation discrimination in other areas, such as employment and services. Ten to 20 years from now, sexual orientation discrimination is likely to be as widely banned in the United States as discrimination is now on grounds such as ethnicity, religion and gender. But it’s not now.

Conclusion: The Supreme Court struck down laws that prohibit people from getting married based on the gender of the person they plan to marry. Nothing in the decision or in U.S. legal history suggests that ministers will be forced to conduct same-sex marriages — for the same reasons that the government has not ever forced clergy to perform a wedding for any other particular kind of couple. The high court did not outlaw all forms of discrimination against the LGBTQ community, though Congress and state legislatures likely will do so eventually nationwide, with some cities doing so even sooner.

The law has changed, and changed dramatically, but the sky is not falling and polygamy is not going to be constitutionally protected this time next year or even in the next 10 years, if ever. But county clerks who refuse to comply with the court’s ruling will face the same fate as those who refused to comply with the court’s earlier rulings against school desegregation: praised by some initially for their courage but universally losing in the end. Yet for employees of clerks, the question remains an open one.

David Schleicher is an attorney with offices in Waco, Houston, and Washington, D.C.

[as published in Waco Tribune-Herald – July 15, 2015 – 6A]

Supreme Court Disrobes Discrimination: The Marriage Equality Decision 

Posted: Friday, June 26, 2015 11:01 am

Just shy of 29 years after the Court ruled it was constitutional to arrest two gay men for what they did in private, the U.S. Supreme Court has ruled 5-4 that states may not prohibit someone from marriage on the basis of sexual orientation. Like its former leader Anita Bryant, the anti-gay movement in America has gone from triumph to bankruptcy, clinging to a belief (as per her ministry’s bio page) that she is the real victim and remains a “real heroine.”

I can still remember the excitement of hearing Ms. Bryant’s telephone call to us over the loudspeakers at a rally in San Antonio against an ordinance that would have banned housing discrimination based on sexual orientation. A nine-year old at the time, I carried a homemade protest sign upon which I had written in large letters with a marker that “Homos Need Help.”

In fact it was me, and my fellow protestors, who needed the help. We were using our Bibles as an excuse for hate much as segregationists had done decades earlier. Our hypocrisy became apparent to me in the years since, so much so that I felt compelled around the turn of the century to march in Waco in a parade supporting LGBTQ rights.

It had dawned on me that things condemned with much more frequency by the Bible, such as greed, are rarely if ever suggested as a basis for denying someone housing, employment or admission to the clergy. The obsession with sexual orientation was not driven by the Bible, merely excused with it. For her part, fighting the fight for the sanctity of marriage did not prevent Ms. Bryant from divorcing and remarrying, notwithstanding Jesus’ view (Matthew 19:9) that a second marriage equals adultery.

Like me, San Antonio too has seen the wisdom of reversing course. It is one of 11 Texas cities (including Waco) that now have in place at least some degree of protection against sexual orientation discrimination. Pulling back the veil on such discrimination, we see it is not the inspirational “Save Our Children” campaign Ms. Bryant tagged it as being. Rather it the poison fruit of the prejudices of history, cloaked in a nobility it never deserved.

Having myself once been a protester against gay rights, I need not grant the opponents of same sex marriage the grace that Justice Kennedy did in today’s decision. Writing for the majority, he said the view that marriage can only be between a man and woman “long has been held — and continues to be held — in good faith by reasonable and sincere people here and throughout the world.”

The State of Michigan stooped so low in oral arguments as to claim that outlawing same sex marriage promoted stable homes for children by discouraging the idea that people would marry based solely on love. The flimsiness of this argument is a hint that it is meant to cover an actual, more sinister motivation (what in law is called “pretext”). Kennedy and four other justices were not persuaded.

The Supreme Court held the right to marry worthy of governmental protection in its 1967 Loving v. Virginia case, striking down bans on interracial marriage. A primary question in the latest case was whether banning same sex marriage was a legitimate exercise of legislative discretion to deny marital benefits to those not traditionally granted them, or instead an unconstitutional denial of government benefits targeted based solely on archaic tradition.

Justice Kennedy explained that the petitioners in the case were not out to “denigrate marriage, but rather to live their lives, or honor their spouses’ memory, joined by its bond.” As with bans on interracial marriage, yesterday’s heroes become today’s bigots in the brighter light of hindsight. This Supreme Court decision is not about the high court taking a turn to the liberal left. Its decisions on voting rights and campaign finance make clear it can muster plenty of conservatism when it wants.

Instead it is about what was thought a left-wing view being shared by conservatives such as Justice Kennedy as well: the liberties protected by the Constitution extend even to those our forefathers deemed unworthy of their reach. As Kennedy noted, “rights come not from ancient sources alone. They rise, too, from a better informed understanding of how constitutional imperatives define a liberty that remains urgent in our own era.” Later in the opinion he explained that “new insights and societal understandings can reveal unjustified inequality within our most fundamental institutions that once passed unnoticed and unchallenged.” He traced the constitutional evolution in granting rights to women as an example.

Justice Roberts’ dissent is well-written and persuasive if read on its own. That is, until one realizes similar take-it-slowly-and-let-the-voters-decide arguments could have been made against the earlier decision striking down bans on interracial marriage. Justice Scalia’s dissent calling the ruling a “threat to American democracy” would have us believe he has no strong opinions about same sex-marriage laws. Instead he solely wants the voters and their legislators to decide the issue.

As we learned in the Shelby County Voting Rights Act case of 2013, Scalia and Roberts will not hesitate to strike down the will of the people when they consider it justified to protect others. The Voting Rights Act was renewed in 2006 with a 98-0 vote in the Senate and 390-33 vote in the House — margins unimaginable in today’s fiercely partisan climate. The votes were based on 20 hearings, testimony from more than 90 expert witnesses, totaling more than 15,000 pages of testimony supporting the continuing need for the law.

If Scalia truly considered legislative action sacred, he would have not so readily overturned that voting rights legislation to protect us from over-protecting African-American rights. It boils down to this: He believes there is something fundamentally different about same sex marriage that puts it out of reach of constitutional protection. It’s not normal; it’s not right; now’s not the time.

Today’s Supreme Court’s decision disrobes discrimination. “Because the Bible tells me so” is confirmed to be as poor an excuse for oppressing the LGBTQ community today as it was for oppressing African-Americans in the 1950s. Children will be helped, not hurt, by what happened today. The disdain with which we today regard yesterday’s segregationists today will tomorrow in the bright light of hindsight be applied to the opponents of marriage equality. Just as orange is the new black, Anita Bryant is the new George Wallace.

David Schleicher is an attorney with offices in Waco, Washington, D.C., and Houston.