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Litman: the Supreme Court Should Try to Catch the Leaker. but That Won’t Fix What’s Broken

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The Supreme Court’s investigation into the leak of the draft opinion overruling Roe vs. Wade is reaching a boiling point, with law clerks reportedly being required to turn over their cellphone records and sign affidavits — under penalty of perjury — disavowing any role in the leak.

According to one CNN commentator, the strong-arm tactics have the nearly 40 clerks “freaking out,” and they contemplate lawyering up. The court’s hardball investigative moves have drawn harsh criticism: Jennifer Rubin in the Washington Post called the actions an “unseemly dragnet,” and lawyer and legal commentator Leah Litman (no relation) termed them “insanity.”

I’m a mild dissenter from the outrage at the investigation’s starchiness. The leak was a grievous transgression, and the seriousness of the response should neither surprise court insiders nor leave them indignant.

What the leaker did may not have broken a specific law (a bill was just introduced in Congress to remedy that), but when it comes to court culture, it was the equivalent of a capital offense.

Chief Justice Roberts calls the leaked draft a “betrayal” and says it will be investigated.

More importantly, the leaked draft, and other bits and pieces that have continued to surface regarding the progress of the Roe decision, confirms that the Supreme Court itself is broken. But here, the leak is more a symptom than a cause.

It’s hard to describe to outsiders just how big a sin the leaked draft is in terms of Supreme Court culture. I was a clerk for Justice Anthony M. Kennedy in the late 1980s, during a term with a very high-profile abortion case that portended the overruling of Roe. That the draft opinion on that case — or any case — would wind up published was inconceivable then. The appearance of Samuel A. Alito Jr.’s full Roe draft in May was as unprecedented as it was shocking.

Chief Justice John G. Robert Jr.’s investigation, and his fury — he called the leak “an affront to the court and the community of public servants who work here”— is completely understandable.

The Supreme Court is a deliberative body, at least in design, and its drafts are the actual means of persuasion and coalition-building. They are meant to be written candidly and confidentially, then probed, discussed and adjusted according to colleagues’ comments. There is no bully pulpit, as with the president, no heated exchanges on the floor of the Senate. The back-and-forth of arguments made in writing is the decision-making process.

The conservatives have embarked on a crusade of judicial activism against a raft of precedents, and not just on abortion.

That process has been unalterably corrupted by the leak. Any justice writing a draft opinion must now consider that it could wind up in the public sphere, awash in political crosscurrents that should play no role in Supreme Court deliberations.

Justice Clarence Thomas has been mocked for saying, with characteristic dyspepsia, that the leak “changes the institution fundamentally…. You begin to look over your shoulder. It’s like kind of an infidelity, that you can explain it, but you can’t undo it.” But he’s right about the leak’s impact.

So the court simply could not let the leak pass. A concerted effort to find the leaker (or leakers) is necessary, if only for the sake of deterrence.

Which brings us back to the investigation itself.

As far as we know, only the clerks are being asked, as a work requirement, to turn over their phones and sign affidavits. They are the logical focus of Roberts’ inquiry. They mirror the passions and positions of the justices they work for; indeed, they increasingly have been chosen because they are soldiers for shared political and legal causes. And the court, as their ultimate boss, has considerable leverage to get them to cooperate with the ask — if they don’t comply, they could be dismissed, a severe blow to their future careers.

Others at the court — administrative employees, for example — may have had access to the draft opinion, but they are much less likely to be privy to the added tidbits that have dripped out — that no other Roe drafts had circulated and no justice changed his or her vote. As for the justices themselves — it’s not only unthinkable that they would be the source of the leak, targeting them would be tanatamount to dropping a bomb in the middle of the conference room. In any case, the chief justice has little leverage to force his colleagues — with their lifetime tenure — to cooperate with this investigation.

The leak of a U.S. Supreme Court draft opinion about Roe vs. Wade underscores how the court still operates in enormous secrecy. What if it didn’t?

In the long run, expending outrage over the investigation targets and its process obscures what the leak clarifies: The Supreme Court has become a very public train wreck.

Those who caused the crash are, for the most part, political actors, outside the court itself — Donald Trump and Mitch McConnell foremost among them. And the crash they caused was the installation of a supermajority of justices eager to take a sledgehammer to many of the foundations of American constitutional law.

The Roe leak has further undermined what was already crumbling. In many important cases and respects, the court has ceased to be the trustable deliberative body of constitutional design. It is in the iron grip of a five-justice bloc that is out of step with the legal community and the American public, one that has the power to ignore reason and argument from the rest of the court.

An ill-gotten supermajority degrades the Supreme Court and leaves it, in the broad perception of the country, hopelessly politicized. The leak is important — it matters. But however the investigation turns out, it can’t repair this bigger problem.

@HarryLitman

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Original Source: latimes.com

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The Senate Has a Climate Deal. Now Comes the Hard Part

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After decades of inaction on the climate crisis, the federal government is on the verge of enacting a sweeping plan to slash planet-warming pollution, with Arizona Sen. Kyrsten Sinema agreeing late Thursday to support the bill.

Now comes the hard part — or at least, the next hard part.

Phasing out coal, oil and natural gas — the fossil fuels largely responsible for the climate crisis — will require building huge amounts of clean energy infrastructure, including solar farms, wind turbines, lithium-ion batteries and electric power lines. The Senate bill sets aside nearly $370 billion to support those technologies and others that could help reduce carbon emissions.

But finding good spots to put all those renewable energy projects — and contending with opposition from nearby landowners, Native American tribes and even environmental activists — could be just as challenging as getting a bill through Congress.

Across the country, local opposition has slowed or blocked many renewable energy facilities. And land-use conflicts are likely to intensify. Princeton University researchers estimate that zeroing out U.S. carbon emissions by 2050 could require installing solar panels and wind turbines across more than 225,000 square miles, an area much bigger than California.

“There’s this misperception that there’s plenty of land,” said Eric O’Shaughnessy, a renewable energy researcher at Lawrence Berkeley National Laboratory. “That is true, but [solar and wind farms] have to go in specific places.”

The Senate deal, known as the Inflation Reduction Act, should accelerate America’s renewable energy buildout. It was the product of months of negotiations between Majority Leader Chuck Schumer (D-N.Y.) and Sen. Joe Manchin III (D-W.Va.), and it needs support from all 50 Senate Democrats to overcome unified Republican opposition.

Sinema, the final holdout, now says she’ll “move forward” with the bill once it overcomes a final procedural hurdle.

Sen. Joe Manchin III (D-W.Va.) outside the Capitol in May.
(J. Scott Applewhite / Associated Press)

The bill would extend and expand tax credits for companies to build and buy climate-friendly technologies, from solar and wind power to energy storage and carbon capture. Other provisions include $4,000 tax credits for buying used electric cars and rebates for homes that replace gas boilers with electric heat pumps. The bill would establish a “green bank” with a $27-billion budget, force oil and gas companies to pay fees as high as $1,500 a ton on methane leaks and pay farmers to change their practices.

Senate Democrats say it would help cut U.S. carbon emissions 40% below 2005 levels by 2030, assuming it passes the Senate and House and is signed by President Biden. Independent analyses support that claim. Rhodium Group estimates emissions would fall 31% to 44%, compared to 24% to 35% under current policy. The research firm Energy Innovation offered a similar projection.

Those would be big cuts — but not enough to meet U.S. climate targets. President Biden pledged to slash emissions at least 50% by 2030. Steeper reductions will be needed over the following decades to achieve the goals of the Paris climate agreement.

That won’t be easy. And if policymakers fail to grapple with local opposition to solar and wind power, it might not be possible.

Two recent studies help explain the sources of that opposition — and what might be done to alleviate local concerns.

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The first study, from researchers at Massachusetts Institute of Technology, explored 53 renewable energy projects that were delayed or blocked over more than a decade. It found the most common sources of opposition were concerns about environmental impacts and land use.

California and neighboring states have seen both types of conflicts.

Some conservation groups have tried to block solar and wind farms in the Mojave Desert, citing potential harm to animals and plants such as desert tortoises, golden eagles and Joshua trees. Just this month, Ormat Technologies Inc. paused construction of a geothermal project in Nevada while federal wildlife officials study whether it would harm the endangered Dixie Valley toad.

Then there’s San Bernardino County — California’s largest by land area. Three years ago, it banned solar and wind farms on more than 1 million acres, spurred by locals who worried the sprawling projects would industrialize their rural communities.

A solar farm in California’s Kern County.
(Mel Melcon / Los Angeles Times)

Some clean energy advocates consider that type of opposition NIMBYism at best and thinly veiled climate denial at worst.

But Lawrence Susskind, an urban planning professor and the MIT study’s lead author, said local concerns of all kinds need to be taken seriously. His research has convinced him that speeding up the clean energy transition will be possible only if developers slow down and make a good-faith effort to gather input from communities before dumping solar and wind farms on them.

Too often, Susskind said, companies exclude local residents until the last minute, then try to steamroll opposition — to their own detriment. His study cited 20 projects that were ultimately blocked, some by lawsuits or other forms of public resistance.

“If you want to build something, you go slow to go fast,” he said. “You have a conversation, not a confrontation.”

That was the thinking behind the Desert Renewable Energy Conservation Plan, an ambitious government effort to map which parts of the California desert are suitable for solar and wind farms and which parts should be protected. The plan took eight years to complete and covered more than 10 million acres — and barely survived a Trump administration attempt to scrap it.

Renewable energy companies criticized the maps as too restrictive. But they didn’t take their complaints to court, and so far the desert plan seems to be standing the test of time. The Biden administration recently approved its third clean energy facility under the plan — a 500-megawatt solar plant, with 200 megawatts of battery storage, off Interstate 10 in Riverside County.

An 11th-hour Trump administration proposal foreshadows a tough balancing act for Biden on public lands.

Stanford University researchers hope to facilitate similar compromises for the rest of the country.

Stanford’s Dan Reicher told The Times he’s convened more than 20 groups and companies — representing the solar industry, environmental advocates, Native American tribes, the agriculture industry and local governments — in an “uncommon dialogue” to discuss land-use conflicts involving large solar farms. It’s modeled after a similar dialogue that Reicher convened for the hydropower industry and conservation groups, which led to an unprecedent agreement between those long-warring factions.

Reicher hopes the solar discussions will lead to companies to make smarter decisions about where to build projects — and do a better job communicating with local residents and conservationists when they think they’ve found good locations.

“Done well, siting is a highly technical process that also lends itself to significant input,” Reicher said.

The Los Angeles Department of Water and Power’s Pine Tree Wind and Solar Farm in the Tehachapi Mountains of Kern County.
(Irfan Khan / Los Angeles Times)

O’Shaughnessy agrees on the need for public engagement up front.

The Lawrence Berkeley researcher was lead author of the second recent study, which found that solar and wind farms typically get built in rural areas with low incomes — and those projects can be either a benefit or a burden to those communities, depending on local factors. Construction jobs and tax revenues can be a boon, while loss of agricultural land can be a big loss.

Renewable energy facilities can also destroy land held sacred by Native American tribes or disrupt treasured views.

The visual impacts of renewable energy could be one of the biggest roadblocks to fighting climate change.

The potential harms from solar and wind energy pale in comparison to the dangers of oil and gas drilling and other fossil fuel projects, which unlike renewable energy can expose nearby residents to cancer-linked chemicals and other toxins. The low-income communities of color that have born the brunt of fossil fuel pollution are also especially vulnerable to climate change consequences.

But taking steps to make sure solar and wind farms in vulnerable communities don’t worsen ongoing injustices is important, O’Shaughnessy said. And it’s a priority for the Biden administration, which has set a goal of delivering 40% of the benefits of federal investments in climate and clean energy to disadvantaged neighborhoods — an initiative known as Justice40.

“There will be projects that move forward despite some degree of local opposition. That’s inevitable,” O’Shaughnessy said. “It comes back to making sure there are participation processes in place to do this as fairly and equitably as possible.”

They key question is whether enough clean energy can still be built fast enough to avert climate catastrophe.

Susskind, the MIT researcher, thinks it’s doable. He said renewable energy companies should be willing to redesign their projects to avoid sensitive lands and to offer financial compensation to people or businesses who feel they’re still being harmed.

“More stuff would get built faster,” he said.

The Solar Energy Industries Assn., an influential national trade group, agrees with that assessment.

Ben Norris, the group’s director of environmental policy, said in an interview that engaging with communities early — and giving them a real opportunity to be heard — is “the hallmark of good project development.” He said it’s an area where the solar industry is working to improve, in part through the Stanford initiative — and the Senate deal makes it more important than ever.

“This is such a historic opportunity that we’re on the cusp of that we need to get it right,” Norris said.

Senate Majority Leader Chuck Schumer (D-N.Y.) discusses the Inflation Reduction Act at a news conference.
(Kent Nishimura / Los Angeles Times)

Not everything in the Senate bill has been embraced by climate activists.

To win Manchin’s support, Schumer included provisions that require continued oil and gas leasing on public lands and offshore, which activists have been fighting to shut down for years. Democratic leaders also agreed to support legislation designed to speed up permitting for all kinds of energy projects — including climate-disrupting natural gas pipelines and gas export terminals.

Sempra Energy is seeking federal approval for a new proposal to ship fossil fuel overseas.

As far as Energy Innovation is concerned, the bill’s benefits far outweigh its harms. The research firm estimates that for every ton of carbon pollution caused by the fossil fuel leasing mandates, 24 tons of carbon would be avoided by other provisions.

Michael Gerrard, founder of Columbia University’s Sabin Center for Climate Change Law, also thinks the tradeoffs are worthwhile. The best way to cut down on oil and gas production, he said, is to reduce demand for the fuels — and the Senate bill does that.

The separate permitting bill could also be helpful, Gerrard said, because it could streamline approval of clean energy projects.

“Local opposition has emerged as one of the major inhibitors of [solar and wind farms],” Gerrard said. “Trying to clear away those obstacles is extremely important, even if it is at the price of making it somewhat harder to fight new fossil projects.”

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Gerrard pointed to the Telecommunications Act of 1996 as a possible model for speeding solar and wind development. The law prevented local governments from banning cell towers and required them to approve or reject towers within a few months.

It also prohibited local governments from rejecting cell towers because they emit electromagnetic fields, or EMFs — a type of radiation that has spurred fears of cancer and other health problems, despite a lack of strong evidence to support those fears. Gerrard thinks similar rules could be helpful for solar and wind projects dogged by misinformation over alleged health effects.

“Whether it’s wind farms or vaccines or elections, people don’t always listen to evidence,” he said.

“Going to communities early and trying to engage them — it’s helpful,” he added. “But it’s not a guaranteed silver bullet.”

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Original Source: latimes.com

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Possible Pelosi Visit Elicits Shrugs in Taiwan, Long the Focal Point of Geopolitical Standoff

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TAIPEI, Taiwan — 

On the top of Iris Hsueh’s list of concerns living in Taipei are COVID-19 restrictions, electricity prices and, if she’s being honest, the latest news on Taiwanese pop stars. Nowhere on that list is the proposed visit of House Speaker Nancy Pelosi (D-San Francisco) and the potential Chinese backlash.

“Whether she comes or not won’t really change” anything, the 37-year-old saleswoman speculated. “I think China will think it’s a provocation, but I also don’t think they will escalate any actual military behavior because of this.”

Asked how her circle of friends feels about the standoff, which has prompted the deployment of a U.S. aircraft carrier group to the Taiwan Strait and China to conduct live fire military drills Saturday, Hsueh said matter-of-factly, “I don’t think they really care.”

As tensions flare between the two superpowers — risking the worst crisis in the region in a quarter of a century — people in Taiwan appear by and large to be responding with a collective shrug, occupying their attention with things like the summer heat wave and local elections rather than the specter of war.

Such is life on the self-governed island of 23 million that has long served as the focal point of an explosive geopolitical standoff. The threat of Chinese military action has loomed for so long that few seem to raise an eyebrow when Beijing lashes out, as Chinese leader Xi Jinping did Thursday in warning President Biden on a call that “those who play with fire will perish by it.”

Speaker of the House Nancy Pelosi departed for Asia on Friday.
(J. Scott Applewhite / Associated Press)

While the invasion of Ukraine has heightened concerns around the globe about a possible Chinese assault, many in Taiwan still view Beijing’s bellicose threats as largely bluster.

“The Chinese Communist Party is playing the same old tricks,” said Yisuo Tzeng, a research fellow at the Institute for National Defense and Security Research in Taipei. “They’re making a fuss about nothing.”

Pelosi, a frequent critic of China’s human rights abuses, left for Asia on Friday. Her itinerary includes U.S. ally countries Japan, South Korea, Malaysia and Singapore. As of Saturday morning, no plans were revealed about stopping in Taiwan. Biden said the Pentagon advised against her visit.

The rancor over the trip underscores how badly the U.S.-China relationship has soured in recent years and how firmly Taiwan remains its most dangerous flashpoint. Pelosi wouldn’t be the first House speaker to visit the democratically-ruled island; Republican Newt Gingrich made the trip in 1997. But China under Xi is a much more powerful and assertive country than it was back then, and it’s determined to dominate Asia in a way befitting of a great power.

Standing immediately in its way is Taiwan, a teardrop-shaped island roughly the size of Maryland located less than 100 miles off the coast of mainland China.

Formerly known as Formosa, the island was taken over by the fleeing Chinese Nationalist government after it was defeated by the communists in 1949, in the Chinese civil war.

Since Russia invaded Ukraine, more Taiwanese say they are willing to fight if attacked by China. But without firearms or sufficient military training, many wonder how to prepare.

Beijing considers Taiwan part of China, and after urging peaceful unification for years, has warned it will take the island by force if necessary — particularly if Taiwan formally declares independence.

Washington switched diplomatic relations to Communist China in 1979, adopting a “one China” policy that acknowledges Beijing’s claim to Taiwan, but doesn’t endorse it. To deter China from invading, the U.S. provides Taiwan with defensive weapons and maintains a policy called strategic ambiguity designed to leave China guessing as to whether American troops will defend the island if it is attacked.

While that approach has fostered a peaceful status quo for more than four decades, it has grown more fraught with the elevation of Xi, China’s most powerful leader since Mao Zedong.

Xi has hitched Taiwan to his grand project of national rejuvenation, marking the 100th anniversary of the founding of the Chinese Communist Party last year with a speech that described unification as “a historic mission and an unshakable commitment.”

Much of China’s military planning and modernization is geared toward an invasion of the island. The People’s Liberation Army Air Force has tripled the number of sorties it’s flown around Taiwan the first half of this year compared with the same period a year ago, a tactic aimed at prodding and exhausting the territory’s air defenses.

Xi Jinping is China’s most powerful leader since Mao Zedong.
(Andy Wong / Associated Press)

In June, Beijing said the sea separating China from Taiwan, known as the Taiwan Strait, did not qualify as international waters, claiming sovereignty over the waterway and challenging the U.S. Navy’s presence there.

Beijing has also accused the U.S. of blurring its “one China” policy when Cabinet officials and Congress members visit Taiwan with growing frequency. On three occasions Biden has made remarks suggesting the U.S. had discarded strategic ambiguity by pledging to defend Taiwan with force, but the administration has walked back the comments each time.

The tension between the nations with the world’s two largest economies shows few signs of abating. Xi will be less constrained after the 20th Party Congress later this year when he’s expected to secure his third five-year term, the first Chinese leader to do so since Deng Xiaoping imposed two-term limits in 1982. Biden’s ability to maneuver is also limited by the bipartisan enmity for China, one of the few issues rival lawmakers agree on in an otherwise severely polarized political climate. The call between the two leaders Thursday offered no offramps.

Caught in the cycle of escalation is Taiwan, whose voice is often drowned out by the din of Washington and Beijing. The government led by President Tsai Ing-wen has said little about a Pelosi visit — even as analysts say her appearance provides no concrete benefit to the territory and may be more trouble than it’s worth.

Taiwan Semiconductor Manufacturing Co. makes chips for iPhones, video game consoles and fighter jets. Now it’s being forced to choose sides.

“Taiwan’s agency in the U.S.-PRC-Taiwan triangle has varied over time, but at this moment, the drivers are the U.S. and China,” said Shelley Rigger, a leading Taiwan expert at Davidson College, using the initialism for the People’s Republic of China. “Taiwan is stuck in the middle.

“Unfortunately, I don’t think the Taiwanese government is in a position to speak frankly with U.S. officials,” Rigger continued. “The U.S. is Taiwan’s primary defender, and U.S. officials have shown a lot of ego and arrogance in the relationship. Offending American leaders by pointing out the downside of their decisions is not something Taiwanese officials are really in a position to do.”

Taiwan generally views visits by high-level U.S. officials and politicians as a political boost for the ruling party and a show of much-needed international support. Beijing has diplomatically isolated Taiwan to the point where it’s recognized by just over a dozen mostly small nations. China also thwarted Taiwan’s bid to join the World Health Organization assembly during the pandemic.

A Pelosi visit “would definitely encourage the people of Taiwan, basically saying that ‘you are not alone,’” said Chen Kuan-ting, chief executive of Taiwan NextGen Foundation, a think tank politically aligned with the governing Democratic Progressive Party.

That’s important because since Russia invaded Ukraine, confidence in Washington’s willingness to send troops to defend Taiwan in an invasion scenario has waned. A survey conducted by the Taiwan Public Opinion Foundation showed a 30% decline between last October and March in the number of respondents who believe the U.S. will come to the island’s aid.

Many in Taiwan say Pelosi can’t afford to back down, worrying another cancellation (she initially postponed a trip to the territory in April after testing positive for COVID-19) will send a signal to Beijing it can coerce and intimidate Washington.

Taiwan President Tsai Ing-wen has urged her country to better prepare for an invasion.
(Shioro Lee / Associated Press)

“Taiwan is a democratic country. We have the right to welcome any friend who supports” us, said Freddy Lim, a pro-independence legislator who met with Pelosi in Washington in June and urged her to visit Taiwan.

Beijing, which views a visit by Pelosi as a challenge to its sovereignty over Taiwan, said it would respond forcefully to her arrival. Analysts say China could place sanctions on the U.S. lawmaker, test missiles, or in the most provocative scenario, scramble fighters to try to turn her aircraft around. Doing nothing would make China’s leadership look weak, a problem China faces after threatening Taiwan for years.

“To have the same effect of cowing the Taiwan population, Beijing is forced to be more threatening,” said Ja Ian Chong, a political scientist at the National University of Singapore. “This cycle may continue until Beijing either has to follow through with its threats or its bluff is called.”

The last time tensions were this high in the region was in 1995, when then-President Lee Teng-hui of Taiwan sparked a furor in Beijing by visiting the U.S., breaking diplomatic protocol. China, which also wanted to send a warning to pro-independence groups before upcoming Taiwan elections, responded by conducting a series of missile tests in the waters off the island. The standoff ended when the Clinton administration deployed more warships to the Taiwan Strait than had been assembled since the Vietnam War.

Many in Taiwan don’t expect the same muscular U.S. response — not when China’s military has advanced enough to inflict massive harm to the U.S. Navy.

But in a country where air raid sirens and military drills are a regular occurrence, few seemed fazed by the latest crisis.

“Pelosi’s visit will add to the intensity of [Beijing’s] diplomatic remarks,” said Su Liu Di-Sheng, a 23-year-old graduate student in political science at National Taiwan University. “But the military risk has always been high.”

Yang reported from Taipei, Taiwan, and Pierson from Singapore.

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Source: latimes.com

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Podcast: to Be Queer in Singapore

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Just this year, Singapore’s top court upheld section 377A. That’s a British colonial-era law prohibiting consenting sex between men. And while the government says it doesn’t strictly enforce that law, anyone who breaks it could face up to two years behind bars.

Meanwhile, thousands of Queer Singaporean activists and LGBTQ allies will gather in Hong Lim Park this weekend for an annual gay pride event — and send a clear message to lawmakers that they’re done being denied their basic human rights.

Read the full transcript here.

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Article: latimes.com

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