Italian Court Fined For “Playing Down Gender-Based Violence”

Italian Court Fined For “Playing Down Gender-Based Violence”

Authored by Jonathan Turley,

There is an interesting decision out of the European Court of Human Rights. The court fined an Italian court for “playing down gender-based violence” in a ruling on a gang rape case.

The ECHR objected to references to the alleged victim’s sexuality, behavior, and the color of her underwear.

The case involved an alleged gang rap by seven men in a car after a party in 2008.  The woman was a student who said that she was drunk at the time. The trial court convicted six of the men. However, the appellate court in Florence overturned the convictions in 2015.

What is striking is that the ECHR did not challenge that verdict but objected that the “language and arguments” used by the Florence court “conveyed prejudices existing in Italian society regarding the role of women.”

In the United States, such a fine of a court would be virtually impossible. Judges can obviously be reversed or reprimanded or even brought up on judicial conduct charges. However, the fining of a court is quite extraordinary.  Indeed, in the United States, even parties are protected from defamation lawsuits for statements made in court. They are subject to court contempt sanctions.

The ECHR indicates that more such fines could on the way because courts are expected to “avoid[] reproducing sexist stereotypes” or “playing down gender-based violence and exposing women to secondary victimisation by making guilt-inducing and judgmental comments.”

The court must pay the woman 12,000 euros ($14,600) in compensation.

The concern about the ruling is not the merits but the means for such objections.  Such fines could be used in a variety of areas to pressure or coerce courts. If courts can be sued by parties for references and evidence cited in opinions, it could chill some judges in writing frankly about what are viewed as flaws or contradictions in the record. It is important for all parties that courts be open and honest about such grounds for decisions. We can then address errors and confront bias in the form of reversals or reprimands. The risk of such reversals or reprimands is itself a deterrent. However, exposing courts to damages could create a countervailing financial pressure on decision making.

This is not the first controversy involving the ECHR.  It ruled in 2010 that a women’s human rights were violated by being denied an abortion in Ireland. In 2018, it ruled that a pro-life advocate could not refer to abortion as “murder.” I was particularly critical of the court in 2018 when it ruled that a teacher could be prosecuted for comparing Muhammad’s marriage to a six-year-old girl as pedophilia. That decision was a direct attack on free speech and reflected a broad assault on free speech rights across Europe.

Tyler Durden
Sun, 05/30/2021 – 08:10

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France’s Bernard Arnault Becomes The World’s Richest Person

France’s Bernard Arnault Becomes The World’s Richest Person

This week, French billionaire, Bernard Arnault, became the world’s richest person.

As Visual Capitalist’s Nick Routely notes, Arnault’s rise into top spot is particularly noteworthy since American billionaires – particularly in the technology sector – have dominated the world’s richest people ranking for a number of years. Amazon’s Jeff Bezos remains neck-and-neck with Arnault, with Elon Musk still within striking distance.

Jeff Bezos began 2021 in top spot, but has been challenged by both Elon Musk and Bernard Arnault. The former took a hit after Tesla’s stock began to cool off after hitting a record high in Q1 2021.

Arnault’s name may be new to some, but he has been on of the top five richest people globally since 2018, and has been a billionaire for well over a decade.

The French tycoon got his start in the fashion space by parlaying a fortune made in construction into the purchase of Christian Dior in 1985.

Vive la France

Bernard Arnault oversees an empire that includes many iconic French luxury brands, including; Louis Vuitton, Dom Pérignon, and Christian Dior. His luxury group, LVMH (Louis Vuitton Moët Hennessy), also spans retail and hospitality industries.

It may be surprising that LVMH is thriving during the COVID-19 pandemic, but the company has been buoyed by strong sales in Asia – especially China.

In January 2021, LVMH completed a deal for Tiffany & Co for nearly $16 billion, in what is possibly the largest luxury brand acquisition in history.

Tyler Durden
Sun, 05/30/2021 – 07:35

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“Steadfast Defender”: A Look At NATO’s Massive War Games On The Black Sea

“Steadfast Defender”: A Look At NATO’s Massive War Games On The Black Sea

Authored by Dave DeCamp via AntiWar.com,

Stoking tensions with Moscow, NATO is carrying out its largest war games yet this year that spread across the Atlantic Ocean and extend into Russia’s backyard in the Black Sea.

According to the NATO website, the Steadfast Defender exercises started on May 12th and will be held until June 22nd. The drills involve 20 ships, 60 aircraft, 500 vehicles, and over 9,000 personnel from 20 countries.

Via AP

Among the ships involved is the HMS Queen Elizabeth, a British aircraft carrier that is on its maiden deployment. After drilling with NATO, the Queen Elizabeth and its strike group will head into the Pacific to send a message to China.

NATO-Secretary General Jens Stoltenberg spoke with reporters while onboard the Queen Elizabeth off the coast of Portugal. “NATO is there to defend all our allies, and this exercise sends a message about our ability to transport a large number of troops, equipment across the Atlantic, across Europe and also to project maritime power,” he said.

It’s clear the “message” the military alliance intends to send is aimed at Russia.

The massive exercises come after NATO took a strong stance in support of Ukraine during a tense stand-off between Moscow and Kyiv.

Ukraine’s President Volodymyr Zelensky is pushing hard to get his country into NATO and is asking the US to back the effort.

However, on Wednesday Ukrainian Foreign Minister Dmytro Kuleba decried what he said was a lack of progress towards a NATO membership.

Tyler Durden
Sun, 05/30/2021 – 07:00

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‘Hero Pay’ for Grocery Workers Is Terrible for Grocery Workers


TOPICSREGULATION

“Hero pay” laws, which require big wage increases for grocery store workers during the COVID-19 pandemic, are sweeping the West Coast. Store closures, unemployment, and lawsuits have followed in their wake.

The first of these laws, passed in late January by the Long Beach, California, City Council, mandated that grocery workers at large stores get a $4-an-hour pay raise for the duration of the pandemic. By early February, Kroger announced it was shutting down two stores in Long Beach.

The locations had already been underperforming, the company said, but the new pay hike meant they were now unsustainable. It was the same story in Seattle and Los Angeles: In response to “hero pay” laws, Kroger said it would close three stores in each city.

Many independent stores that remain open say these policies have pushed them deep into the red. One analysis by Capitol Matrix Consulting (and commissioned by the California Grocers Association) found the laws have increased labor costs by an average of 30 percent.

Grocery store associations in California and Washington are suing every city that requires “hero pay.” They argue that such mandates are preempted by federal labor law and violate the 14th Amendment’s Equal Protection Clause.

The grocery store unions that push these laws and the politicians who pass them scoff at store owners’ arguments. Grocery store profits, they note, are way up during the pandemic. They argue that the store closures are merely an intimidation tactic.

Grocery stores “absolutely should be paying this increase,” said Los Angeles City Councilmember Paul Kortez. “And if they shut down stores, it’s just out of spite.” It’s a strange argument that companies would be greedy enough to resist giving affordable pay increases to their employees but not so greedy that they don’t mind closing profitable stores just to make a point.

Even with record pandemic profits, grocery stores operate on very slim margins. Big, sudden increases in expenses have to be absorbed somewhere. Those stores with the least room to make up added costs are the most at risk of being shuttered.

Most supermarkets, of course, will survive, likely through a combination of price hikes, layoffs, and employee hour reductions. These consequences are a compressed version of what we’d expect from the much-discussed idea of raising the federal minimum wage to $15 an hour: pay raises for many workers, job losses for others, and higher prices and fewer options for consumers. Unlike with a minimum wage increase, however, the costs of “hero pay” laws are obvious, immediate, and visible to everyone.

from Latest – Reason.com https://ift.tt/3yPKMDd
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‘Hero Pay’ for Grocery Workers Is Terrible for Grocery Workers


TOPICSREGULATION

“Hero pay” laws, which require big wage increases for grocery store workers during the COVID-19 pandemic, are sweeping the West Coast. Store closures, unemployment, and lawsuits have followed in their wake.

The first of these laws, passed in late January by the Long Beach, California, City Council, mandated that grocery workers at large stores get a $4-an-hour pay raise for the duration of the pandemic. By early February, Kroger announced it was shutting down two stores in Long Beach.

The locations had already been underperforming, the company said, but the new pay hike meant they were now unsustainable. It was the same story in Seattle and Los Angeles: In response to “hero pay” laws, Kroger said it would close three stores in each city.

Many independent stores that remain open say these policies have pushed them deep into the red. One analysis by Capitol Matrix Consulting (and commissioned by the California Grocers Association) found the laws have increased labor costs by an average of 30 percent.

Grocery store associations in California and Washington are suing every city that requires “hero pay.” They argue that such mandates are preempted by federal labor law and violate the 14th Amendment’s Equal Protection Clause.

The grocery store unions that push these laws and the politicians who pass them scoff at store owners’ arguments. Grocery store profits, they note, are way up during the pandemic. They argue that the store closures are merely an intimidation tactic.

Grocery stores “absolutely should be paying this increase,” said Los Angeles City Councilmember Paul Kortez. “And if they shut down stores, it’s just out of spite.” It’s a strange argument that companies would be greedy enough to resist giving affordable pay increases to their employees but not so greedy that they don’t mind closing profitable stores just to make a point.

Even with record pandemic profits, grocery stores operate on very slim margins. Big, sudden increases in expenses have to be absorbed somewhere. Those stores with the least room to make up added costs are the most at risk of being shuttered.

Most supermarkets, of course, will survive, likely through a combination of price hikes, layoffs, and employee hour reductions. These consequences are a compressed version of what we’d expect from the much-discussed idea of raising the federal minimum wage to $15 an hour: pay raises for many workers, job losses for others, and higher prices and fewer options for consumers. Unlike with a minimum wage increase, however, the costs of “hero pay” laws are obvious, immediate, and visible to everyone.

from Latest – Reason.com https://ift.tt/3yPKMDd
via IFTTT

Abramson: Critical Race Theory Versus American Exceptionalism

Abramson: Critical Race Theory Versus American Exceptionalism

Authored by Bruce Abramson, op-ed via The Epoch Times,

Over the past few weeks, legislatures, school boards, and parents have risen to challenge critical race theory (CRT) as a divisive ideology that teaches our children to become racists.

Their objections have brought this once-obscure academic theory to the front pages of newspapers around the country.

Demonstrators gather in front of Los Alamitos Unified School District Headquarters in protest of critical race theory teachings in Los Alamitos, Calif., on May 11, 2021. (John Fredricks/The Epoch Times)

They’ve also raised some burning questions: What is CRT? What makes it so objectionable? How can this central pillar of “antiracist” training be racist?

The answer begins, as so many do these days, with the progressive penchant for the redefining—or rather, deconstruction—of words. “Antiracist” training is racist because progressives have redefined “racism.”

CRT scholars have been clear and consistent on this matter. The “antiracism” they’re preaching isn’t the “anti-racism” of Martin Luther King Jr. Nor is it opposition to the discriminatory treatment most Americans oppose when speaking against racism. CRT contends that the “systems” defining modern American life are irredeemably racist. It calls for a revolutionary upheaval, laying waste to every existing governmental, legal, economic, cultural, social, communal, and familial institution.

CRT’s “antiracism” explicitly requires compensatory discrimination against “white people,” rather than equal treatment for all. To further this goal, K–12 CRT programs emphasize and heighten racial identity, segregate students by racial group, discriminate in their treatment of these groups, and teach that racial tension is unavoidable.

CRT also embodies an absolute and total rejection of American exceptionalism. One consequence of that rejection is that CRT has become a shorthand for the entire constellation of anti-American neo-Marxist theories dominating today’s political left. Whereas Marx cast history as a struggle among economic classes, contemporary Marxists believe that struggles among races and genders to be at least as important. CRT sees the entire American experiment of extolling individual liberty as white supremacism seen through the lens of good public relations.

Though CRT’s blurring of culture clashes may give its advocates a talking point, it’s hardly one of consequence. Just as Marx missed the incredible adaptivity of capitalism and the benefits it confers upon poor workers, CRT’s loathing of America blinds it to the adaptive and evolutionary role American exceptionalism has played in combating discrimination.

There was nothing exceptional about the first African slave ships to arrive in the New World in the early 17th century. Slavery had been around throughout recorded history. Every known culture, everywhere in the world, had embraced inequality. Captives taken from conquered cities, warring tribes, or disfavored faiths had long been sold into bondage. People were born into a station in life and expected to behave accordingly. Few even bothered to question such “structural inequalities.” No human society had ever embraced the radical idea that “all men are created equal,” much less tried to put it into practice.

That is, until July 4, 1776, when a slaveholding plantation owner named Thomas Jefferson declared it to be the foundational creed of a new nation. That foundation was truly exceptional. It sent the young America on a collision course with all of past history. One after another, the time-honored institutions of inequality fell before this revolutionary American ethos.

Four score and seven years later, Abraham Lincoln reiterated Jefferson’s proposition as part of the fight to end slavery. A century after that, King galvanized the nation to end Jim Crow. Over the next few decades, the United States not only dismantled all legal and most social barriers to black advancement, but also adopted numerous set asides and preferences to promote the full integration of its black citizens into the American dream. In 2009, America inaugurated its first black president.

Those steps were all exceptional and proper sources of American pride. Yet viewed through the lens of CRT, they merely masked increasingly subtle forms of anti-black racism and white supremacism.

CRT’s ability to reach such a conclusion reveals just what type of “theory” it is. CRT relies upon the reasoning that has served as the hallmark of conspiracy-theoretic thinking: Evidence—like slavery—tending to support the argument that the United States is racist is taken at face value, while evidence tending to negate it—like the elevation of King to the forefront of this country’s heroes—is inverted into support. To critical race theorists, CRT is self-evidently true. All relevant evidence, no matter what it appears to say, is taken as confirmation.

CRT is a toxic, racist, anti-American conspiracy theory. At its heart is a denial of the American exceptionalism that has done more than any other ideology to combat inequality and discrimination. CRT has no place in our schools. America’s children should learn that their nation introduced new notions of equality to the world—and dedicated its history to broadening their applicability. They should learn to embrace America’s foundational ideal and take pride in the way it has developed throughout our history.

True advocates for diversity and inclusion should love no country on earth more than the United States. Our exceptional nation has taught the world that broad equality under the law provides a far better path to stability and prosperity than the perpetual struggle among divided groups ever could. That’s why true opponents of racism oppose CRT—in our schools and elsewhere.

Tyler Durden
Sat, 05/29/2021 – 23:30

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Space Plane Startup Promises Los Angeles To Tokyo In One Hour 

Space Plane Startup Promises Los Angeles To Tokyo In One Hour 

Modern transportation is experiencing significant upgrades thanks to transformative technologies. A startup space plane company is promising hypersonic flight worldwide and travel times to anywhere in about an hour. 

Venus Aerospace is building a passenger aircraft that will revolutionize the world’s transportation sector with hypersonic flight. The company raised $3 million in a March funding round. It plans to build a Mach 12 hypersonic aircraft designed to travel at the edge of space, allowing passengers to go from Los Angeles to Tokyo in one hour.

Traveling in a space plane is sort of like traveling in a regular plane, except for when the pilot initiates rocket boosters mid-flight that propels it to the edge of space. The aircraft then glides back into the atmosphere and can land at any conventional airport. 

Two former Virgin Orbit employees started Venus: Sarah Duggleby, a launch engineer, and her husband, Andrew, who manages launch, payload, and propulsion operations.

“Every few decades humans attempt this,” Andrew Duggleby told Bloomberg, as for now, the dream of high-speed global travel is in reach because of new rocket engine and hypersonic technologies. “This time, it will work.”

The Dugglebys say their space plan has more efficient engines, wings, landing gear, and jet engines that allow it to take off like a commercial airliner. 

Jack Fisher, a former NASA astronaut who analyzed Venus’ plans, said the initial blast of acceleration “throws you back in your seat” but soon dissipates because “you get going so fast that you don’t even feel it anymore.”

Three scale models of the space plane will be tested this summer. The project is expected to take at least a decade of testing before commercialization. 

If the technology works, Venus will have to decide if the plane is for commercial or military use first. Already, the husband and wife team, with a dozen employees, have secured a research grant from the U.S. Air Force.

Sassie Duggleby suggests the superfast space plane is for “regular people.”  

Before hypersonic space planes, we suspect supersonic ones would be commercialized first, at the end of this decade.  

The Federal Aviation Administration is already issuing new regulations around supersonic travel as multiple startups are working on developing supersonic aircraft.  

Tyler Durden
Sat, 05/29/2021 – 23:00

via ZeroHedge News https://ift.tt/3yMRbPz Tyler Durden

Coming Soon: China’s Navy Patrolling Off New York?

Coming Soon: China’s Navy Patrolling Off New York?

Authored by Gordon Chang via The Gatestone Institute,

China is scouting for a naval base on the west coast of Africa. In the near future, therefore, Chinese ships could be regularly patrolling off America’s East Coast.

In recent testimony before the House and Senate Armed Services Committees, General Stephen Townsend, commander of U.S. Africa Command, has been sounding the alarm.

At the moment, China’s only offshore military base is in Djibouti, on the Horn of Africa. The facility is near some of the world’s busiest shipping routes, including those going through the Suez Canal.

Townsend believes the People’s Liberation Army Navy is surveying locations on Africa’s west coast, from Mauritania in the north to Namibia in the south.

“Now they’re casting their gaze to the Atlantic coast and wanting to get such a base there,” the general told the Associated Press.

Africa is important in its own right.

“Located at the crossroads of the world, Africa watches over strategic choke points including the Strait of Gibraltar, the Strait of Sicily, the Red Sea, the Bab al Mandeb, and the Mozambique Channel,” General Townsend pointed out in a publicly released 2021 Posture Statement for Congress.

“The land mass of Africa is larger than the United States, China, India, Japan, and most of Europe combined.”

The African continent is home to 11 of the 25 fast-growing economies and is the world’s most demographically vital region.

Chinese planners are not only thinking of the continent, they are also eyeing islands in the Atlantic, specifically Terceira, one of the Azores.

On that island, part of Portugal, there is a port and, of even greater interest, Air Base No. 4. Better known as Lajes Field, the facility is jointly operated by the U.S. Air Force and its Portuguese counterpart.

If China controlled the base, the Atlantic would no longer be secure. From the 10,865-foot runway there, Chinese planes could patrol the northern and central portions of the Atlantic and thereby cut air and sea traffic between the U.S. and Europe. Beijing would also be able to deny access to the nearby Mediterranean Sea.

Pentagon budget cutters have been scaling back activities at Lajes, making it a “ghost base.” As a result, Lajes is ripe for China to take it over.

Whether China takes over Lajes or not, China’s plans for Africa are clear. As Bradley Bowman of the Foundation for Defense of Democracies told the Washington Times this month, “It’s just a matter of time before you have regular surface and subsurface Chinese naval vessels in the Atlantic.”

An Atlantic base “would let China make mischief for the United States in its own hemisphere,” James Holmes of the U.S. Naval War College told Gatestone.

“It could siphon some U.S. forces from the Western Pacific to the Atlantic, easing the pressure on China in the East China Sea, Taiwan Strait, and South China Sea. It would distract and stretch us to Beijing’s benefit.”

Worse, China could then target the American homeland. Lajes, for instance, is less than 2,300 miles from New York, shorter than the distance between Pearl Harbor and Los Angeles.

China could get a base even closer than that. About 90 miles east of Palm Beach, on Grand Bahama Island, a Hong Kong-based business is spending about $3 billion on a deep-water container facility, the Freeport Container Port.

That port is designed to take advantage of traffic from the recently expanded Panama Canal, but the concern is that the port will become another Hambantota. China in December 2017 took control of the Hambantota port in Sri Lanka, grabbing 70% of the equity and signing a 99-year lease after that project could not repay high-interest loans extended by China. China’s takeover was inevitable because Hambantota was, from an economic point of view, misconceived from the beginning.

Now there are concerns that Hambantota will eventually become a Chinese naval base. China’s admirals have long eyed Sri Lanka. In both September and October 2014, the Sri Lankan government allowed a Chinese submarine and its tender to dock at the Chinese-funded Colombo International Container Terminal.

Sri Lanka is perhaps the model for China’s militarization of the Bahamas. In addition to the overly large facility in Freeport, there is a Chinese-funded port on Abaco Island, also part of the Bahamas. The port in Abaco is essentially useless from a commercial point of view and could fall into Beijing’s hands.

China, therefore, could have two naval bases close to Florida, unless the Biden administration moves fast to block Chinese penetration of the Bahamas.

As Holmes points out, it would be a mistake to believe that countries in Africa or this hemisphere will not assert their own interests.

“It’s worth speculating about what response a Chinese presence would elicit from South Atlantic countries, not just ourselves,” he tells this site.

“Like other regional hegemons, Brazil has proprietary feelings toward regional waters, especially considering how much of Brazilians’ economic hopes depend on the offshore ‘Blue Amazon.’ “

Holmes, the first holder of the J. C. Wylie Chair of Maritime Strategy at the Naval War College, suggests Brazil could act like India. In the Indian Ocean, India, with big ambitions, can determine outcomes close to its coast. “China,” Holmes says, “can’t automatically bully its way into a dominant position.”

At the moment, Beijing, deploying trade, investment, and other tools, bullies and intimidates countries in Africa and in Latin America and the Caribbean. America can counter, however, by working closely with capitals on both sides of the Atlantic.

Yet Washington needs to look beyond countries with ports. South and Central America and the Caribbean are important in their own right, as is Africa.

At the moment, America is, with trade and investment, strengthening a hostile Chinese regime, which has declared the U.S. to be its enemy. Last year, America’s two-way trade with China totaled $560.1 billion.

Washington, with incentives and disincentives, should redirect trade toward countries in Africa and the Western hemisphere so that the U.S. can build support for democracy instead of Chinese-style totalitarianism — and permit countries to be less reliant on Chinese cash.

There is a long way to go to build ties. America’s two-way trade in goods with Africa last year was a paltry $45.8 billion. The figure for US two-way trade in goods and services with Brazil last year was $103.9 billion.

That brings us back to the Chinese naval bases. Beijing, as evident from statements from its leaders, wants to rule the world. An interim step is controlling the Atlantic, the Caribbean, and the waters off the East Coast of the United States.

Tyler Durden
Sat, 05/29/2021 – 22:30

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Australian Mouse Plague May Last Two Years; Rodents Eye Sydney Invasion 

Australian Mouse Plague May Last Two Years; Rodents Eye Sydney Invasion 

Australia’s out-of-control mouse plague is worsening in New South Wales, a southeastern Australian state, as experts warn the fast-spreading rodents could overwhelm the area for two years if urgent extermination action is not taken, according to Daily Mail

Xavier Martin, the New South Wales Farmers (NSW Farmers) vice president, said farmers are abandoning their fields and barns as a biblical wave of mice devour the region’s crop before it can be harvested. He said now is the perfect time to stop the plague. 

“Farmers are abandoning some paddocks and cannot hold off winter crop sowing a moment longer, and researchers warn that without a concerted baiting effort in the next few weeks, this could easily turn into a two-year plague event.

“After more than eight months of battling growing mouse numbers, farmers are still waiting for State Government assistance to hit the ground and offer some practical support to our farming community,” Martin said.

He said the NSW government’s mouse plague aid is “impractical, dysfunctional, and weeks away, which is not helping farmers who need support right now to drive mouse numbers down and break this horrible, unrelenting cycle.” 

“NSW Farmers has consistently said the simplest, safest, and most timely way for the State Government to assist farmers would be through providing rebates of up to $25,000 per farm business to cover 50 percent of the cost of zinc phosphide bait,” he added.

Mouse tracking website “MouseAlert” shows the mice are migrating from the countryside into cities. There are concerns the mice are already populating across the Sydney metro area. 

“Mice are a significant problem in Australia, causing severe economic, social and environmental damage during plagues,” the website states. 

Videos posted on Twitter show stomach-churning scenes of mice pouring out of grain storage facilities and equipment. 

Australia suffers from a mouse plague every decade or so. A combination of a bumper crop in NSW and heavy rains resulted in perfect breeding conditions for mice in late 2020. 

What’s concerning is that migrating mice to city centers could transmit diseases such as hantavirus, leptospirosis, salmonellosis, tularemia, and even the plague.

NSW has faced everything from drought to brushfires, a pandemic, devastating floods, massive hordes of spiders, and now a biblical wave of mice. 

Apart from the economic cost of the mouse plague, a public health crisis could be forming as mice swarms appear to be honing in on Sydney. 

Tyler Durden
Sat, 05/29/2021 – 22:00

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Appellate Court Strikes Down Racial And Gender Preferences In Biden’s COVID Relief Law

Appellate Court Strikes Down Racial And Gender Preferences In Biden’s COVID Relief Law

Authored by Glenn Greenwald vis Substack, (emphasis ours)

This judicial ruling about the raging debates over group-based benefits vividly highlights the social, political and culture divisions driving U.S. politics…

A federal appellate court on Thursday invalidated the racial and gender preferences in President Biden’s $1.9 trillion American Rescue Plan Act as unconstitutional. The Cincinnati-based Sixth Circuit of Appeals ruled that provisions of that law, designed to grant preferences to minority-owned small-restaurant owners for COVID relief, violate the 14th Amendment’s guarantee of equal protection under the law:

No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The specific provision struck down was part of the law’s $29 billion Restaurant Revitalization Fund grant program for small, privately owned restaurants struggling to meet payroll and rent due to the COVID crisis. The law, which was passed almost entirely by a party-line vote in March, grants priority status to restaurants that have 51% ownership or more composed of specific racial and ethnic groups as well as women. By effectively relegating struggling businesses owned by white males or ethnicities and nationalities excluded from a priority designation “to the back of the line,” the COVID relief program, ruled the court by a 2-1 decision, ran afoul of core constitutional guarantees.

The ruling is not only constitutionally significant in its own right but also vividly reflective of broader societal debates over how race and gender categories ought to be treated when set next to class. The parties to this case as well as the judges involved in the ruling themselves highlight the pervasive conflicts created by race and gender preferences.

The lawsuit was brought by Jake’s Bar and Grill, a restaurant jointly owned by Antonio Vitolo, who is white, and his wife, who is Hispanic. If Vitolo’s wife owned more than 50% of the restaurant, then Jake’s Bar and Grill would be eligible to receive priority treatment for a grant, since her ethnicity qualifies as “socially and economically disadvantaged” under the law. But because she only owns 50% — her white husband owns the other half — the restaurant’s application cannot be considered until the Small Business Administration (SBA) first processes all applications from restaurants entitled to priority status based on race and gender, as well as veteran status.

The Vitolos’ restaurant, said the court, “has struggled during the pandemic—it closed on weekdays and offered to-go orders on weekends. It lost workers and a considerable amount in sales.” For that reason, they filed their application for a grant under the COVID relief bill on the first day the SBA accepted applications, which was May 1. But under the law, their application could not be considered until the 21-day period reserved for priority businesses elapsed. If all of the allocated grant money were exhausted during that designated 21-day period — as the Vitolos feared — then Jake’s Bar and Grill and other non-minority-owned struggling businesses would receive no relief.

The Vitolos filed a lawsuit against the SBA administrator asking that the race-and-gender-based scheme be enjoined and that, instead, their application be processed without regard to their race. Though the district court judge rejected the request on a variety of procedural and substantive grounds, the three-judge appellate panel yesterday ruled in their favor.

The court ordered the government to cease “using these unconstitutional criteria when processing Antonio Vitolo’s application.” The majority expressed the crux of its ruling simply: “This case is about whether the government can allocate limited coronavirus relief funds based on the race and sex of the applicants. We hold that it cannot.”

The appellate judge who wrote the majority opinion is Amul Thapar. He made history when, in 2008, he became the first-ever South Asian judge appointed to the U.S. federal bench after being selected by then-President George W. Bush. The son of immigrants from India, whose father owns a heating and air-conditioning supply business in Toledo, Ohio, Thapar was elevated to the Sixth Circuit in 2017 after first being considered by President Trump for the Supreme Court vacancy ultimately filled by Justice Neil Gorsuch.

Sixth Circuit Court of Appeals Judge Amul Thapar authored a ruling invalidating the race and gender preferences in President Biden’s COVID relief bill, May 27, 2021 (photo: Court of Appeals)

Thapar’s ruling contains multiple indirect references to his own ethnicity and race. Among the components of the racial preference scheme that clearly offended his constitutional sensibilities was the seemingly arbitrary classification calculus — what he called a “scattershot approach” — used to determine which groups do and do not qualify as “socially and economically disadvantaged” under SBA regulations. As Judge Thapar put it:

[I]ndividuals who trace their ancestry to Pakistan and India qualify for special treatment. But those from Afghanistan, Iran, and Iraq do not. Those from China, Japan, and Hong Kong all qualify. But those from Tunisia, Libya, and Morocco do not.

The racial divisions and ethnic categories imposed on the citizenry for determining which restaurants are eligible for COVID relief are, in his view, as irrational as they are discriminatory. One hypothetical invoked by Judge Thapar illustrated the precise racial discrimination which, in his view, the Fourteenth Amendment’s Equal Protection guarantee was created to avoid:

Imagine two childhood friends—one Indian, one Afghan. Both own restaurants, and both have suffered devastating losses during the pandemic. If both apply to the Restaurant Revitalization Fund, the Indian applicant will presumptively receive priority consideration over his Afghan friend. Why? Because of his ethnic heritage. It is indeed “a sordid business” to divide “us up by race.” League of United Latin Am. Citizens v. Perry, 548 U.S. 399, 511 (2006) (opinion of Roberts, C.J.). And the government’s attempt to do so here violates the Constitution.

Thapar was referencing the fact that under SBA regulations, a person is deemed “socially and economically disadvantaged” if they are “black, Hispanic, or Native American.” They are deemed presumptively disadvantaged as “Asian Pacific Americans” only “if they have origins from Burma, Thailand, Malaysia, Indonesia, Singapore, Brunei, Japan, China (including Hong Kong), Taiwan, Laos, Cambodia (Kampuchea), Vietnam, Korea, the Philippines, U.S. Trust Territory of the Pacific Islands (Republic of Palau), Republic of the Marshall Islands, Federated States of Micronesia, the Commonwealth of the Northern Mariana Islands, Guam, Samoa, Macao, Fiji, Tonga, Kiribati, Tuvalu, or Nauru.” Meanwhile, for a person to qualify as “Subcontinent Asian Americans,” they “must have origins from India, Pakistan, Bangladesh, Sri Lanka, Bhutan, the Maldives Islands, or Nepal.”

If a person is in one or more of those groups, they are deemed presumptively disadvantaged — and thus entitled to priority grant allocation — unless “someone comes forward” with “credible evidence to the contrary.” But if someone is not in one of those groups — not just if they are white or male but also from any of the countries excluded from the preferred designations — then they can qualify only if they “prove they have experienced racial or ethnic discrimination or cultural bias by a preponderance of the evidence,” a process filled with lengthy delay and red tape.

If they fail to demonstrate this to the satisfaction of the SBA, then they must wait, and perhaps never receive relief. As Judge Thapar put it, “the schedule of racial preferences detailed in the government’s regulation—preferences for Pakistanis but not Afghans; Japanese but not Iraqis; Hispanics but not Middle Easterners—is not supported by any record evidence at all.” The law, in his words, is designed for “presumptively sending men from non-favored racial groups (including whites, some Asians, and most Middle Easterners) to the back of the line.”

Thapar, who was joined in the decision by Reagan-appointed Judge Alan Norris, recognized that racial and gender preferences are sometimes constitutionally permissible under Supreme Court jurisprudence, but only if “the government has a compelling interest” in giving some racial and ethnic groups preferential treatment, and only if the preferences are “narrowly tailored,” whereby “the government must show ‘serious, good faith consideration of workable race-neutral alternatives.’”

The court ruled the preference scheme in the COVID relief law constitutionally insufficient for multiple reasons. Among them was the lack of a specific nexus between the discrimination suffered by the favored groups and prior government action. Equally significant, said the court, was the existence of numerous race-neutral alternatives to the problems identified by the government that they are trying to fix: namely, that minority-and-female owned businesses have had greater difficulty obtaining credit or prior COVID relief funds. “The government could,” said the court, “grant priority consideration to all business owners who were unable to obtain needed capital or credit during the pandemic,” rather than only those who are from preferred racial groups. Or the state “could simply grant priority consideration to all small business owners who have not yet received coronavirus relief funds” (emphasis added).

But instead of a targeted effort to assist all American small-restaurant owners who have suffered equally from the pandemic, the law arbitrarily grants priority to some based on racial or gender identity that has no necessary relationship to economic suffering. The law, for instance, favors white women over Middle Eastern men. And it grants priority to ethnic groups that are among the highest earners in the U.S. — including Indian-Americans and specific groups of Asian-Americans — over lower-earning groups including white men and Middle Easterners.

Group-based income levels in the from 2013-15 U.S. Census Bureau data. Data from subsequent years adheres to these trends.

The court explained this irrational approach in the context of striking down the law’s gender preference:

The priority system is designed to fast-track applicants hardest hit by the pandemic. Yet under the Act, all women-owned restaurants are prioritized—even if they are not “economically disadvantaged.” Pub. L. No. 117-2, § 5003(c)(3)(A). So whether a given restaurant did better or worse than a male-owned restaurant next door is of no matter—as long as the restaurant is at least 51% women owned and otherwise meets the statutory criteria, it receives priority status. Because the government made no effort to tailor its priority system, we cannot find that the sex-based distinction is “substantially related” to the objective of helping restaurants disproportionately affected by the pandemic.

In sum, divvying up Americans by race and gender and determining who, on that basis, is entitled to benefits and who is not, is something that is constitutionally permissible only in the narrowest and most extreme circumstances. In the view of the court, the race and gender preferences embedded in the COVID relief bill for small-restaurant owners did not come anywhere near that requisite justification. “As today’s case shows once again,” concluded the court, quoting a prior Supreme Court ruling, the ‘way to stop discrimination on the basis of race is to stop discriminating on the basis of race.’”

The dissenting judgeBernice Donald, is an African-American woman who was first appointed to the federal bench in 1995 by President Bill Clinton, then elevated to the Sixth Circuit in 2011 by President Barack Obama. Her dissenting opinion thoroughly captures the broader political arguments in favor of providing race-and-gender-based preferences.

“It took nearly 200 years for the Supreme Court to firmly establish that our Constitution permits the government to use race-based classifications to remediate past discrimination,” she wrote, but “only seven days for the majority to undermine that longstanding and enduring principle.” Echoing the argument made by those who advocated for such legislative preferences in the first place, Judge Donald insisted that the purportedly race-blind majority opinion ignores systemic realities about how the United States functions and the damages it imposes on specific groups of people:

The majority’s conclusion that Plaintiffs are entitled to injunctive relief requires us to make several assumptions. The majority’s reasoning suggests we live in a world in which centuries of intentional discrimination and oppression of racial minorities have been eradicated. The majority’s reasoning suggests we live in a world in which the COVID-19 pandemic did not exacerbate the disparities enabled by those centuries of discrimination. The majority’s reasoning suggests that we live in a world in which Congress passed the Restaurant Revitalization Fund (“RRF”) not to aid the nation’s economic recovery, but to arbitrarily provide special treatment to racial minorities and women.

She also argued that the evidence is overwhelming that the racial and gender preferences in the law correspond to those most discriminated against by COVID struggles. Citing the legislative process and the judicial hearing, she said “experts offered evidence showing that minority-owned businesses were more vulnerable to economic distress than businesses owned by white entrepreneurs—they were more likely to operate in retail, accommodation, food services, and personal care services industries, which were hardest hit by government shut-down orders and a decrease in foot traffic.” Beyond that, she said, minority-owned businesses were more likely to be in areas with higher rates of COVID-19 infections.”

Judge Donald seemed to concede that no scheme of racial or gender preferences will perfectly match the realities of the population. Some people who do not suffer as much will receive race-based benefits, while others who suffer more will be denied them. But such schemes, in her view, are nonetheless constitutionally justified given the “broad-based emergency legislation designed to fight business fallout that is uniquely and directly tied to the COVID-19 pandemic.” Given the one-time emergency nature of this grant, she said, “we must avoid hurried judicial decision-making under such circumstances,” and should grant extra deference to the legislature regarding its assessments of how best to help a struggling population.

Judge Donald’s core argument is that racial and gender preferences, even if imperfectly targeted, are justified to cure widespread racial and gender inequalities.

“Entrepreneurs of color have had specific difficulty in accessing business capital,” she said, while “banks require more documentation from minority applicants but approve loans less often or for lower amounts” and “minority entrepreneurs had lower familial and household incomes, decreasing access to private capital.”

But what of the solutions proposed by the majority, which would target people based on need rather than race and gender? Judge Donald conceded that “in normal times, there may be some force to the majority’s position,” but given the need to “act fast,” some imperfections are inevitable. The Congress, she said, is far better positioned than the Court to assess what is best for the nation during an emergency.”

The undercurrents and conflicts driving this case are highly illustrative of broader cultural debates. Indeed, the case captures the core question driving much politics in the U.S. and the West: is it remedial, or bigoted, to continue to divide people based on race and gender and determine their official rights, benefits and preferences based on their membership in demographic groups rather than the realities of their individual lives?

Specific states, such as Oregon, have explicitly set aside millions of dollars in COVID relief funds available only to black residents. Such race-based benefits across the nation have prompted similar litigation and have resulted in many of these funds being frozen pending their outcome (a Mexican-American resident of Oregon who sued the state over the state’s black-only relief fund had her case rejected).

This latest appellate ruling — at least when it comes to COVID relief for small-restaurant owners in the Sixth Circuit (parts of Kentucky, Michigan, Ohio and Tennessee) — resolves that question in favor of individual treatment and against group-based preferences. But that specific decision is likely to be appealed to the full court and perhaps the Supreme Court and, either way, this specific race and gender debate will continue to rage.

Tyler Durden
Sat, 05/29/2021 – 21:30

via ZeroHedge News https://ift.tt/2R6wa1u Tyler Durden