The new pandemic: Texan ‘stealth overruling’

In 2010 law professor Barry Friedman published an article on the perils of “stealth overruling.” “Stealth overruling” is a way state actors can secretly destroy or circumvent constitutional rights, United States Supreme Court precedent, or protective legislation. Perhaps “stealth overruling” is the new pandemic, a strain first concocted in the Texas laboratory.

Let us use our imaginations and envision that Texan strain spreading to another state — let’s say Mississippi — which enacts the following law: Any resident of the state has a private cause of action for damages and/or injunctive relief against:

1. Any individual or business who employs or houses anyone protected by the United States Constitution, the state constitution, and federal, state or local civil rights legislation (including, but not limited to, anyone who is or appears to be female, a person of color, Hispanic, Latino, of Middle Eastern or Asian descent, LGBTQ, plus anyone who is not Episcopalian).

2. Any individual or business who aids and abets any individual or business covered by section 1 above may be named as defendant in any such civil suit.

Preposterous? Ridiculous? No worries: It can’t happen here!

Amy D. Ronner

Aspen and Coral Gables, Florida