Here’s Your “Augh!” Moment for the Day

In Feres v. United States, one military servicemember (Jefferson) and the estates of two dead servicemembers (Feres and Griggs) sued the U.S. government under the Federal Tort Claims Act, claiming that DoD negligence caused death/injury.

In Jefferson’s case, he’d had surgery at an Army hospital. He had complications afterward, and doctors decided he needed a second surgery.

During the second surgery, “a towel 30 inches long by 18 inches wide, marked ‘Medical Department U.S. Army,’ was discovered and removed from his stomach.”

Jefferson sued, claiming that the Army doctor who did the first surgery was negligent in leaving the towel behind (ya think?).

The Supreme Court, apparently much less grossed out by this than I was, ruled that the Federal Tort Claims Act does not cover injuries related to military service – including medical malpractice in military hospitals.

Apparently the court decided instead “to cast upon Congress…the task of qualifying and clarifying its language.” In other words, if the Federal Tort Claims Act is supposed to let soldiers sue for negligence suffered while on duty, Congress needs to say so.

Congress did eventually say so…69 years later.

(Since then, 448 negligence claims have been filed; over 25 percent have been denied, 2 percent have been settled, and a few more have gone to trial.)

From 1950 to 2019, though, soldiers couldn’t sue the DoD or the federal government for negligence related to their service if they were injured. Not even if an Army doctor left AN ENTIRE HAND TOWEL INSIDE A VITAL ORGAN.


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Church Sues State. I Have Questions.

St. Joseph’s Parish, in St. Johns, Michigan, recently filed a lawsuit claiming that the state Supreme Court’s holding in Rouch World, LLC v Department of Civil Rights will violate the parish’s religious right to *checks notes* exclude whom it pleases from the kingdom of Heaven.

That’s a paraphrase, but it’s not an exaggeration.

As a matter of both faith and law, I think St. Joseph’s is on the wrong side here. I also think that St. Joseph’s strongest argument is also its most distastefully un-Christian.

Some Background

At issue is whether the word “sex” in the state’s Elliot Larsen Civil Rights Act (ELCRA) includes sexual orientation and gender identity. Or: Does it count as discrimination on the basis of “sex” to discriminate on the basis of sexual orientation or gender identity?

In Rouch, the plaintiffs were both businesses that decided they had religious Issues with serving lesbians and trans women, respectively. Rouch World, LLC didn’t want to let a lesbian couple book its venue for their wedding; Uprooted Electrolysis, LLC didn’t want to perform electrolysis services for a trans woman (an essential procedure prior to gender reassignment surgery and an important one for managing gender dysphoria generally).

The women involved filed complaints with the state Department of Civil Rights; Rouch and Uprooted filed a case with a lower court; the state Department of Civil Rights moved for summary disposition on the grounds that the word “sex” does in fact include sexual orientation and gender identity. Things got complicated.

Tl;dr the state Supreme Court was asked to settle the issue. Which it did – by announcing that yes, the Elliot-Larsen Civil Rights Act prohibits discrimination on the basis of sexual orientation or gender identity, as both of those are included in the word “sex.”

Specifically, now-Chief Justice Elizabeth Clement (a Republican) wrote “Accordingly, the denial of ‘the full and equal enjoyment of the goods, services, facilities, privileges, advantages, or accommodations of a place of public accommodation or public service’ on the basis of sexual orientation constitutes discrimination ‘because of … sex’ and, therefore, constitutes a violation of the ELCRA.” Bookmark this; we’ll come back to it.

St. Joseph’s Case

Enter St. Joseph parish. ELCRA doesn’t include exceptions for religious organizations or religious liberty. In other words, you don’t get to say “but my religion says no [insert protected class here].”

This, of course, concerns St. Joseph, which runs a Catholic school as well as a church. Hence the lawsuit, in which St. Joseph claims that the ELCRA’s protections violate the First and Fourteenth Amendments – exemplified here by St. Joseph’s desire to keep discriminating against queer people because…Jesus?

Here’s Why I Think St. Joseph Shouldn’t Have a Case

When I first read the Lansing State Journal article, I lingered over the ELCRA passage cited by Chief Justice Clement: “…a place of public accommodation or public service…”

As both a lawyer and a Christian, this is the hinge on which I think the reasoning here rests. Christianity, broadly, claims to take seriously Christ’s call in Matthew 28:19 to “go and make disciples of all nations.” It also claims to take seriously Paul’s statement in Galatians 3:28 that “there is no longer Jew or Greek; there is no longer slave or free; there is no longer male and female, for all of you are one in Christ Jesus.”

Christianity broadly, and Catholicism specifically, claim to take the Gospels and the Epistles very seriously. They’re the cornerstones of millennia of theology and practice.

I maintain that any religion that insists its commission is to “go and make disciples of all nations” is a public accommodation or public service by definition.

Christianity cannot take that call seriously and also run itself like a country club or a secret society. It’s “go and make disciples of all nations.” It’s not “go and make disciples of the nations that pay the membership fee and survive the hazing rituals.”

In fact, I’d go so far as to say that Christians do not have any right to discriminate as a matter of religion (not as a matter of law). Paul tells us that the very divisions prohibited by the ELCRA no longer exist under Christ. There is no longer male and female, for all of you are one in Christ Jesus.

Christianity also cannot take Paul’s words seriously and also continue to discriminate on the basis of sexual orientation or gender identity. There must be another way to understand the texts’ distaste for what gets translated as same-sex sexytimes – and it must be one that observes Jesus’s note on the greatest commandment, that “all the Law and the Prophets” hang on the command to “love God with all your heart and with all your soul and with all your mind” and “you shall love your neighbor as yourself.”

(I do believe this view exists, but that’s another post.)

Bottom Line: A Christian church asking a court to let it discriminate on the basis of sex as a matter of religious practice shouldn’t even be a thing.

…But I Suspect St. Joseph Might Win This Anyway

Despite that, I think St. Joseph has a strong religious argument for being allowed, as a matter of religious practice, to discriminate on the basis of sex, which is:

Christianity, and religion generally, isn’t just a matter of what’s written in the rulebook. It’s also a living, ongoing tradition of practice and patterns of behavior.

I noted above that Christ’s charge is to “go and make disciples of all nations,” not “go and make disciples of the nations that pay the membership fee and survive the hazing rituals.” Yet for many centuries, the Catholic Church has treated Christianity as if Christ gave us our homework in precisely those words. I’m thinking specifically of the atrocities recorded by Bartolom√© de las Casas, but there are countless other examples.

One can argue, as I did, that the central texts of Christianity don’t support discrimination on the basis of sex. Yet it’s much harder for me to argue that the central longstanding practices of the Catholic Church don’t support discrimination – and resultant atrocities – on the basis of any number of traits included in the ELCRA. The faith, as it has been practiced, is all too often about causing precisely the harm the ELCRA seeks to prevent.

For decades now, courts have been skirting this question by declining to dig into any particular religious tenets, instead punting to the idea that any “sincerely held religious belief” is worthy of protection. The state leaves questions like “Should I sincerely believe that discrimination/exploitation/genocide-scale hazing/etc. is what I’m called to do?” to the individual.

And if I’m being honest, it probably should. But the state should also exercise its powers to keep us, as a society, from inflicting our worst impulses on one another – whether or not those impulses stem from a “sincerely held religious belief.” For that reason, I am inclined to say that the ELCRA’s lack of a religious exemption may be doing the holy work of saving St. Joseph parish from itself.


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Watch the Bird Burn: A Twitter News Masterpost

I just Googled “when did Elon Musk buy Twitter?” because I couldn’t remember. The answer: fifteen days ago. What a long, strange trip it’s been.

Anyway, here’s a collection of Twitter-related news as we watch the birdsite burn down, fall over, then sink into the swamp. To submit any I’ve missed, find me on Counter.social.

First Things First

Oct. 28 Welcome to Hell, Elon (The Verge). If there will be one classic piece of writing on the entire Twitter fiasco – one anthologized in overpriced textbooks and assigned as mandatory reading for every first-year business class – this is it.

Oct. 28 Can We Count the Ways in Which Elon is Going to Regret Owning Twitter? (TechDirt). As the Magic 8 Ball told us repeatedly in our youth, signs point to no.

It’s About the Money

Nov 7. Musk discusses putting all of Twitter behind a paywall (Casey Newton, Platformer). Musk tossed around the idea of making people subscribe for the coveted blue check mark almost immediately. He’s also considered making the entire site pay to play.

Nov. 9 Elon Musk sells almost $4bn of Tesla shares (BBC). Musk sold 19.5 million shares of Tesla worth about $3.95 billion. Since initiating the whole Twitter think, Musk has sold about $20 billion worth of Tesla. Naturally, Tesla’s stock price is not responding well. (Oh, and Tesla is facing a recall of some 40,000 vehicles (NBC) for potential power steering problems after a software update.)

Nov. 11 Elon Musk learns the hard way that being a Twitter troll is way more fun than being a mod (The Verge). As one of my friends noted, “$44 billion of fucking around buys an awful lot of finding out.”

Life Inside the Bird

Nov. 6 Twitter: Musk defends deep cuts to company’s workforce (BBC). It only took a week for about half of Twitter’s worldwide staff to be pink-slipped (pink-emailed?).

Nov. 8 Here’s how a Twitter engineer says it will break in the coming weeks (MIT Technology Review). Cutting half of Twitter’s workforce left it without enough people to sustain the platform, according to an engineer.

Nov. 10 Twitter’s Security and Privacy Leaders Quit Amidst Musk’s Chaotic Takeover (Forbes). At least three of Twitter’s executives in charge of security and privacy quit, raising major – and majorly expensive – questions about federal compliance, among others.

Nov. 10 Inside Elon Musk’s first meeting with Twitter employees (The Verge). A complete transcript of the Chief Twit’s meeting with the remaining Twitter employees. Yikes.

Nov. 11 Twitter’s new leaders charged with helping Musk execute “dumb things” (Ars Technica). No, surely not! Doesn’t more money mean more genius, after all?

Nov. 11 Inside the Twitter meltdown (Casey Newton and Zoe Schiffer, Platformer). I can’t say it better than the authors: “Everything went from bad to worse at Twitter on Thursday.”

Here Comes the Law

Nov. 10 Musk’s Twitter loses key executives, triggers sharp FTC warning (Politico). The resignation of privacy and security leadership prompted the Federal Trade Commission to remind Musk that it can and will fine Twitter millions or billions of dollars per day for violations. Oof.

Nov. 10 Mass layoffs at Twitter, Meta and other companies spotlight a little-known US law that protects employees (CNBC). Elon, my poppet, my pignsnie, you can’t just go firing people on the spot. At least not this many people. At least not in California or New York. Anyway, brace yourself for WARN Act-related class actions, sir.

Nov. 11 Saudi Arabia is the Second-Largest Investor in Twitter. Sen. Chris Murphy Thinks the U.S. Should Look Into That. (Slate) That’s right – after Musk, the next largest Twitter investor is Saudi prince Al Waleed bin Talal. Insert “it’s fine” dog meme here.

How the Whole “User Verification” Thing is Going

Nov. 2 Hey Elon: Let Me Help You Speed Run the Content Moderation Learning Curve (TechDirt). A super-quick primer on why social media sites actually need content moderation (and why it’s so hard to get right). Reading the entire piece is guaranteed to make you 1500 percent more qualified to run Twitter than Elon Musk is.

Nov. 10 For $8, Twitter Blue users create a wave of checkmarked impostor accounts (Ars Technica). Imagine being the pharma giant who has to tell everyone that no, insulin is still outrageously expensive.

Nov. 11 Twitter brings back ‘official’ account tag; $8 blue-tick option disappears (Reuters). Who would have guessed that letting people pay to present themselves as official brand and individual accounts would have ended badly?

Nov. 11 15 Fake Verified Twitter Accounts Causing Absolute Chaos Right Now (Gizmodo). Turns out a lot of people have $8 and no reason not to pretend to be celebrities, politicians, or major corporations.


When Twitter stops letting you impersonate Tesla for the good of the nation, consider sending $8 my way for less lolz but more competence.