So the Obama Department of Justice decided to celebrate the 40th anniversary of Stonewall — and the 42nd anniversary of Loving vs. Virginia — by filing a brief in a same-sex marriage case that repeats a slew of anti-gay canards, and invents a couple of new ones.
Although some have argued otherwise, I believe (as one of Andrew Sullivan’s readers argues) the DOJ has a duty to defend current federal law in all but a few rare cases. I don’t object to them defending the Defense Of Marriage Act. ((Plus, as a matter of tactics, it’s evident that the big LGBT groups want this case dismissed, on technical grounds, to clear the ground for a different, stronger lawsuit that’s also in the pipeline. And that’s very likely what will happen.)) But there are a hundred ways they could have done this that wouldn’t have been an insult to everyone who, unlike Barack Obama and his administration, gives a fuck about equal rights.
As Law Geek writes:
Even if one argues, as I often have, that a government lawyer — from the Department of Justice to state attorneys general — must defend even those laws with which one disagrees, such a lawyer needn’t overstate his or her case. The government lawyer defending a statute with which she disagrees needn’t add gratuitous demeaning statements into the legal brief she files.
Unlike the Obama Administration’s brief filed in the Don’t Ask, Don’t Tell case turned away by the Supreme Court this week, last night’s filing in Smelt v. United States goes too far (pdf). It’s offensive, it’s dismissive, it’s demeaning and — most importantly — it’s unnecessary. Even if one accepts that DOJ should have filed a brief opposing this case (and the facts do suggest some legitimate questions about standing), the gratuitous language used throughout the filing goes much further than was necessary to make its case.
See also this post from Americablog.
This is really bad. For the next decade, expect to see homophobic talking heads on TV support their most wretched arguments by saying “even the liberal Obama administration says….” Some of the worse, most dehumanizing arguments — like the argument that if gays want equal rights, they should just marry someone of the opposite sex — are now an official position of the Obama DOJ. Worse, they’ve created brand-new, stupid arguments, like the argument that for the Federal government to refuse to recognize same-sex marriages in states where they are legal represents Federal “neutrality.” (Hint: If there is literally no difference between the policy you espouse, and the policy Maggie Galligher prefers, then you are not being “neutral.”)
I think we can summarize: the brief is (just about) defensible; its full contents are way over the line; someone in the DOJ must have understood that and decided to file it anyway – without even consulting anyone in the gay community. The deployment of arguments that refer to our relationships as equivalent to incest, that demand that we simply marry someone of the opposite sex if we want our civil rights, that implies federal recognition of our civil marriages would mean taxing some Americans to pay for something they abhor: this is simply salt in the wound, and it will be deployed and used by every far right gay-hater in the future, and cited as endorsed by the Obama administration. In the context of Obama’s failure to fulfill any of his pledges to the gay community since he took office, this is terribly deflating.
We are asked to be patient, and that is fair enough. But we should not be asked to be attacked in this gratuitous manner, shut out of dialogue beforehand, and applaud. We did that for eight years under Clinton. Never again.
David Link has some plausible speculations on how the hell this happened:
But how could this derision not have been noticed by the President’s men? First, and most obviously, I can only imagine that no lesbian or gay men ever set eyes on this brief. Perhaps I am wrong, but I honestly can’t see how any self-respecting homosexual in 2009 could possibly think this brief was acceptable. While California’s Attorney General Jerry Brown has had to both defend and challenge anti-gay laws, his office has the grace and simple common sense to make sure the briefs are reviewed, if not drafted in the first place, by openly gay attorneys.
There is something deeper here, though. Obama is comfortable with the cliché political rhetoric of gay equality, but this brief shows his understanding doesn’t go a centimeter deeper. Or (most generously) that his Attorney General knows only the words and not the tune. To someone who understands gay equality as little more than a set of slogans and bromides, this brief might not have looked particularly offensive.
That, at least, is the most generous understanding I am willing to indulge – that the brief was written and/or edited by civil servants with an anti-gay inclination, and reviewed by political staff who know no more about gay equality than what they read on the President’s website.
The ball is now in the President’s court. He owes us an apology – and not one of words, but one of action.
Box Turtle Bulletin has a roundup of blogospheric reactions, and a telling comparison to a brief written by an attorney general who really is an advocate for queer rights; Dale Carpenter’s post on the quality of the arguments made in Obama’s brief is worth your while; and I’ll close with another quote from Law Dork.
President Obama, if he intends to regain any credibility with the LGBT community this Pride Month, needs to get an answer from A.G. Holder about how such a brief was allowed to be filed under his rule. And he needs to start speaking up about LGBT issues and taking action to make his campaign promises a reality. Obama needs to show that he truly is “a president who supports our cause.”
When he was running for president and needed votes and money, Obama made a lot of promises to LBGTQ voters, but he hasn’t fufilled a single one of those promises. And now his DOJ is actively working against equality with the same enthusiasm and bad faith arguments we would have expected from the Bush administration.
Unless there is a very rapid about-face from the Obama administration, I hope that when Joe Biden shows up to a gay DNC fundraiser in a couple of weeks, he’s greeted by hundreds of angry queer and queer-allied protestors. I hope he’s booed off the stage; I hope he’s pelted with rotton eggs. I hope that lesbians, gays and allies make it clear to Obama that he won’t get a fucking cent for his re-election until he starts keeping his promises. As of yesterday, however, the time when anyone could give Obama the benefit of the doubt on LGBTQ issues has ended.
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You create an impressive logic chain to reconcile Obama’s alleged support for GLBT communities and his actions.
A simpler hypothesis is that his support is fictional and he was lying when he said otherwise. (Or more accurately, he was telling the truth when he indicated that his position was basically on the center-right, and wishful liberals decided that he was lying about that and secretly was on their team.)
Robert, who is the “you” you’re addressing? I feel like you’re attributing positions to me that I haven’t actually taken.
(By the way, it’s not true that Obama said he’s support DOMA, and liberals wistfully convinced ourselves that he was lying. Obama clearly and unambiguously promised to get rid of DOMA.)
An even more simple hypothesis is that the gay marriage issue is analogous on the left to abortion for the right… even Ronald Reagan talked a good pro-life line–but in fact, did nothing, or very little. (Many anti-abortion activists were/are extremely upset about the appointment of Sandra Day O’Connor.) Lotsa lip service, but when push comes to shove: do not compromise the status quo and lose elections.
These issues are just too incendiary and they feel they already have “the base” voting f0r them–so why rock the boat? So, liberal politicians, Obama included, talk pro-gay-marriage but are too chickenshit to actually deliver. Same for abortion on the right.
We have to change the status quo ITSELF, and then the positions of liberal politicians will change, but not before.
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Obama clearly and unambiguously promised to get rid of DOMA.
OK. He’s just a huge liar then. :)
I hope folks who are interested will actually read the brief instead of assuming that Andrew Sullivan, John Aravois or even Chris Geidner (much as I like and respect him) has interpreted it correctly. For example, the comparison to “incest” that Aravois has hyped and Sullivan picked up is actually the same comparison that was made by the Vermont Supreme Court in mandating that the state provide marital rights to same-sex couples:
(I’m also unclear why Aravois and Sullivan find it so abhorrent to refer to first-cousin marriages — which is all the DOJ brief says; it does not use the term “incest” — but I guess being discriminated against with regard to being able to marry the person one loves doesn’t create any sympathy for people in a similar situation.)
In other words, this is a reference to existing precedent that State A can recognize a marriage that State B would not recognize. This precedent has made it possible for marriage equality to occur at the state level without freaking the hell out of people in states that weren’t ready and causing the passage of a Federal Marriage Amendment that would have precluded every single state from being able to recognize SSMs. As it is now, I’m still not sure we have the numbers to stop an FMA if there is a requirement for, say, Virginia and Florida and several other were-blue-in-2008-but-still-not-down-with-LGBT-rights states to have to recognize marriages they don’t want to recognize. I do feel confident that a FMA will not pass by the time that over a quarter of states have SSM (a federal constitutional amendment requires 3/4 of state legislatures to ratify).
Consider the long game, not just the individual plays.
Oh, and since this seems to be a common point of confusion: Obama said he supported a repeal of the federal Defense of Marriage Act. He did not say that he considered DOMA to be clearly unconstitutional; he did not say that he would support its nullification through the courts. A repeal of DOMA requires Congress to act. I realize that for people concerned solely with results and not with process, this seems like a pointless technicality, but it’s actually kind of important: a Congress that repeals DOMA is a Congress that won’t pass a Federal Marriage Amendment (the other requirement for a Constitutional amendment, in addition to 3/4 of state legislatures, is 2/3 of both houses of Congress).
The very first page of the DOJ brief says, “same-sex couples in these States have won what they understandably view as a vital personal right of surpassing importance to their happiness and well-being.” If there was a “go fuck yourself” in the brief, I’m afraid I missed it.
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I’m with PG on this one: read the brief. The commentary on it does not make sense to me.
When he was running for president and needed votes and money, Obama made a lot of promises to LBGTQ voters, but he hasn’t fufilled a single one of those promises.
I’m kind of surprised that you all seem surprised about this.
I hope that lesbians, gays and allies make it clear to Obama that he won’t get a fucking cent for his re-election until he starts keeping his promises.
I will propose that these folks you name are not single-issue voters, but that in fact there are a lot of other issues they care about that Pres. Obama specifically and Democratic politicians in general are a lot closer to them on than Obama’s 2012 opponent or Republican politicans are. I further propose that Obama knows this (he’s no fool) and figures “where else are they going to go?” He may not get the single-issue money, but the political calculus probably comes out that this issue will cost him more than it will gain him.
Unless, of course, you expect him to act out of principle. Good luck on that.
PG, I agree with you that the concerns about the incest thing are overstated, although the precedent you cite isn’t actually the precedent people have been objecting to. (The objections I’ve read have been to Catalano v. Catalano, about an uncle marrying his niece, and In re Mortenson’s Estate.) But that seems to be the only argument you’ve actually responded to (and it was barely mentioned in my post at all).
(By the way, I did read the brief, and I’d bet that most or all of the people I linked to did too.)
I agree that the right of states to not recognize marriages they don’t agree with is important, for now, to prevent an anti-gay constitutional amendment. (Section 2 of DOMA isn’t legally necessary for this — the right of states to not recognize other states’ marriages was established long before DOMA – but politically it’s useful). But section 3 of DOMA — which says that the Federal government cannot recognize same-sex marriages even in states where SSM is legal — isn’t necessary to prevent a federal constitutional amendment, and is obviously disgusting. (GLAD’s lawsuit, which is not the same as the one this brief addressed, doesn’t attempt to overturn section 2, just section 3.)
To quote Lambda Legal’s Jon Davidson — who, I feel certain, has read the brief:
Law Prof Leonard Link, while agreeing with you (PG) about distinguishing between repealing a law congressionally versus in the courts, writes:
I’d also recommend this post by John Culhane, another law professor.
Why? I don’t think you could name a single other significant democratic constituency that Obama made real promises to, pre-election, who have gotten nothing. Obama has done good pro-choice work since being elected; although he’s been horrible in some areas on civil rights and torture (mainly in protecting Bush’s people from criminal investigation), he’s also made real steps forward in that area; he’s kept his promise to work on health care; etc, etc..
I never thought Obama was a savior or a person running on principle alone. I thought he was a politician, and still do. And it’s evident that the LGBT community is going to have to put more pressure on him than was previously thought in order to get a response. Posts like this one are, in a very small way, part of that pressure; anger is sometimes not only sincere and justified, but politically helpful.
It’s interesting that the mainstream gay rights organizations like HRC, which have been loathe to criticize Obama much, have released a (for them) harshly critical statement.
Er.. wha?
If you file, you file to win. That involves choosing your best arguments and listing them. I cannot see how one could simultaneously concede that the administration can do its job of making an argument, and also expect them not to make the best argument that they can.
The Link quote tries to address it, conceding:
but then backs off the concession, in the same paragraph:
Ah, so the arguments should be in the brief… except that they should not have been in the brief.
Most of the commentary on it is doing a bad job of summarizing (see the “incest” example addressed by PG.) LawBlog complains because they spend two pages on an old USSC case, apparently ignoring that it is an on point issue from the same court.
Why do you think that this argument is stupid, or new?
Take three general conditions:
(a) SSM could actively disqualify you from federal benefits, as do certain other acts like felonies.
(b) SSM could have no effect on your qualification for federal benefits (also commonly referred to as a “neutral effect” or “nonexistent effect.”)
(c) SSM could actively qualify you for federal benefits, as does OSM.
“Neutral” is a fairly standard term, and the use of it here isn’t unusual. It doesn’t mean that the EFFECTS are neutral; facially neutral standards can have biased results. But the argument itself doesn’t seem especially off. And it’s certainly not something new.
Amp,
Apologies for assuming you hadn’t read the brief — I would like to know what you thought was so horribly in the way the brief was written (as opposed to the basic substance of the arguments made). The main beef seems to be “Well, OK, the Administration is obliged to defend the law, but they were hateful and bigoted in the way they did it.”
None of the links you provided specifies which citation in the brief made them feel there was an offensive comparison to incest. The relevant paragraph of the brief says,
Moreover, one of the blogs you link (although not the specific post you noted) repeatedly claims that the brief is “comparing gay marriage to incest and pederasty,” and cites exactly the totality of the passage I just quoted to support the claims about “incest” and “child rape.”
There’s also been a troubling trend in several people’s saying that a Mormon attorney should not be allowed to work on a brief dealing with gay rights. One of the posts you linked makes this allusion (“The civil service lawyers – one of whom proudly boasts of being a Mormon on his webpage”) and John Aravois and others have been more explicit: “Now we have a big problem. Andrew Sullivan discovered that one of the three Obama Justice Department attorneys who wrote and filed the anti-gay DOMA brief last night is W. Scott Simpson, a Mormon…” One blogger even said that he didn’t think the brief was so bad — until he discovered that a Mormon had written it, and then he realized that it actually must be full of bigotry.
This really, really bothers me. We’ve gone from criticizing the Bush DOJ for politicizing the civil service to criticizing the Obama DOJ for not imposing religious tests on who’s allowed to do their jobs. And I’m with Sailorman on the point that it’s the DOJ’s job to make every legal argument that they can in favor of the law’s constitutionality, not to pick and choose among which arguments will make Lambda Legal feel happiest. Evidently some folks are OK with politicizing the DOJ, just so long as it’s politicized in their favor.
I’m taking the “this was unnecessarily offensive” claim most seriously because I don’t think the “this made more arguments than necessary” claim deserves to be taken seriously by a litigator. My job is to make every non-frivolous argument for my client that I can (I am bound as an officer of the court not to make frivolous arguments). I’ve had clients for whom I didn’t care at all, including one who was a big donor to Swift Boat Veterans for Truth, and legal claims to argue that I didn’t personally find agreeable. It’s still my job to argue the claims, and I’m very disturbed that people feel comfortable assuming that if a lawyer makes an argument on behalf of the client, the lawyer must agree with that argument on a personal level.
And in the case of the Obama Admin, if they’re obviously not making some non-frivolous arguments on the grounds that “Oh this argument might be more than we need to defeat the motion,” you can bet that every Republican will seize on that as an example of how the Obama Admin is no less politicized than Bush’s, and that it can’t be trusted to defend the law to the fullest extent. That’s the kind of argument that appeals to moderates: the concern that the institutions and processes aren’t working the way they’re set up to do, that the government isn’t being neutral but instead favoring a “side.”
However, on issues like this I do think it’s important not to be offensive. So if there was a term used or something on par with say, Rick Santorum’s making his point about morality laws by comparing homosexual sex to “man on child or man on dog,” then I’ll join with the criticism. So far, I haven’t seen anything of that sort, and I’m not going to be convinced by links to all the people who have been upset when there’s a brief that can be quoted to specify exactly what there is to be upset about.
Law Dork writes (emphasis in original):
I’m rereading this and trying to figure out why it’s overreaching. Terms like “simply” and “merely” are common. This is an argument, after all, and the goal is to win it, not to present your opponents as brilliant. “Simply” and “merely” are not the same as “stupid” or “idiotic.”
There’s overreaching, sure, but it’s in the responses to the brief. Not the brief.
I havea nightmare… where gays and lesbians defiantly marry each other to aquire the benefeits withheld to homosexuals… then, the Obama administration retroactively embraces a new legal definition of “man” and “woman” to exclude those who practice sexual activity other than heterosexual copulation.
I had one other thought, a “HOPE” if you will… that Obama DOJ is actually issuing these statements as a false flag strategy. Taken at face value, these statements serve as tacit aknowlegement that discriminatory activity is going on. Something for the legal community to leverage in order to overturn DOMA.
SM writes:
And this (and your assumption that “file to win” means “never file on narrow technical grounds”) comes from… God? The Constitution?
My guess is that your authority for your statement is “I attended law school.” But of course, many people who disagree with you also attended law school, and some of them teach law school. Therefore any argument based on that authority cannot stand.
From everything I’ve read, the DOJ is free to decide which arguments to include and which to exclude; there is no requirement to include every possible argument. (In fact, it’s obvious, if you read the brief, that they didn’t).
SM, that’s not what the passage you just quoted said. “It would be okay for a low-level lawyer to put it in the first draft, but that lawyer’s bosses should have removed it before filing the brief” is not self-contradictory.
Regarding “neutrality,” I’ve never seen it used as a legal argument for DOMA before (and I’ve read quite a lot on this issue), and apparently some fairly expert people have never seen it either.
The federal government has always honored marriages legitimized by a state — even ones that aren’t recognized in all states. Until DOMA. To then create a special exception only for same-sex marriage is not neutrality; it is treating SSM unlike any other class of marriage recognized in some but not all states. Neutrality would be treating it the same.
The most likely change to DOMA that Obama and Congress will make actually will be to treat SSM like other variation in marriage law: states are not obliged to recognize out of state marriages, but a marriage recognized in any state is a marriage the federal government will recognize (i.e. first-cousin marriages are recognized as marriages by the federal government, even if Texas doesn’t allow such marriages; Kansas’s 14-year-old brides were deemed spouses under federal law though not Nebraska law). Saying it’s inherently offensive and outrageous and out-of-the-question to compare SSM to such federally-recognized marriages is a nice way to shoot this significant improvement in the law in the foot.
However, these marriages (among young teenagers and first cousins) were unions recognized from the beginning of our Republic. Many states always allowed for interracial marriage, so the federal government has always had to recognize interracial marriages. There never was a period in U.S. history where there were no interracial marriages at all; of the original 13 states, NY, VT, NH, CT and NJ never prohibited interracial marriage. (And of course what was deemed “interracial” varied greatly from one state to another. Many statutes drew a line between whites and all non-whites, while some like Oklahoma’s drew the line between blacks and all non-blacks.)
In contrast, there is no state that has always allowed for same-sex marriage. It is an innovation in our law to recognize SSM. There also never has been any variation from marriage to recognize interracial relationships; either they were criminally penalized, or they were legally recognized as marriages. There were no domestic partnerships, civil unions etc. for interracial couples, teenage couples, first-cousin couples.
If you’re going to argue that because the federal government never treated interracial/first-cousin/teen marriage as a new form of marriage, it cannot say that SSM is a new form of marriage, you might want to compare their respective histories more carefully. When the Lovings got married to D.C. and then moved to Virginia, they weren’t just dealing with having the Commonwealth refuse to treat them as spouses. Under the laws against fornication, and particularly interracial fornication, they were criminally liable for living together when Virginia did not recognize them as husband and wife. In a state where first-cousins cannot marry, it also is criminal for them to have incestuous sex.
I do not know of a case where an interracial couple were demanding benefits; all the cases regarding interracial couples with which I am familiar were either demands to be allowed to marry in a state that forbade their marriage, or appeals from criminal charges.
It’s worth keeping in mind that federal recognition of one’s marriage hasn’t done much until relatively recently in our history. Until there was a permanent federal income tax, there was no question of whether one could file as a married couple; until there was a permanent federal estate tax, there was no question of whether someone would be counted as a spouse for the purpose of avoiding such tax in the course of inheritance. The thousand-plus differences that the federal law draws between spouses and non-spouses are almost all of recent vintage, post-dating the Utah polygamy fight and many of them even post-dating Loving v. Virginia. What relationship the federal government recognizes didn’t become a big deal until the federal government became so much of a larger presence in Americans’ lives in the last century.
The federal government has recognized marriages licensed by states, but this is potentially tautalogical given that territories that refused to conform their marriage laws as the federal government desired were not allowed to become states. For example, within Utah polygamous marriages were recognized, but the territory was refused admission to the Union until it had outlawed such marriages. That would be an instance of a type of marriage that the federal government had never recognized before (in contrast to interracial/first-cousin/teen marriage, which the federal government always had recognized).
You say that the federal government has recognized state-licensed marriages in the past even when there were disparities among states, but there’s no precedent for the claim that there’s a constitutional right to such recognition, rather than its being at the discretion of the federal government. And the federal government isn’t required, under current law, to be neutral between same-sex and “opposite” marriage. Given that Romer and Lawrence were based on rational basis review, and that Lawrence specifically carves out marriage (”[This case] does not involve whether the government must give formal recognition to any relationship that homosexual persons seek to enter”), there’s no precedent on which to rely in saying that sexual orientation is a suspect classification such that failing to recognize SSM would violate a constitutionally-protected form of equality.
The only instance I can find where the federal government was unwilling to recognize a type of marriage (polygamy in Utah), the Supreme Court ruled that there was no constitutional right to such a marriage. I don’t know of a precedent for the federal government to be forced to recognize a marriage that Congress has said it doesn’t want to recognize.
In short, Smelt might reasonably be considered premature. It requires a judge willing to push past rational basis to a level of scrutiny used for sex classifications (which is where I’ve always thought sexual orientation belonged anyway since it’s based on the sex of the parties).
As for the problem with using the word “neutrality,” let’s look at how the brief uses that term:
The basic point about “neutrality” being made here is that, given that in the 21st century the federal government’s recognition of marriage has significant implications for all taxpayers, including those living in states that have not only failed to recognize SSM but registered strenuous objections to it through statutes and constitutional amendments explicitly forbidding such marriages, the federal government is not going to pick sides between the states that recognize such marriages and those that don’t.
There’s no explicit Constitutional requirement to do so. However, the DOJ’s job is to act as the federal government’s attorney. An attorney’s obligation is to be a zealous advocate for his client. There’s a tendency among some academics who haven’t been in that role for a while to forget that, but it is a written requirement in the ethics rules covering attorneys for every state of which I’m aware. Honestly, the complaint I hear most often from laypeople about their attorneys is about a tendency toward valuing clubbiness and collegiality over zealous advocacy for the client. After all, the average client is a one-time player, whereas one’s fellow members of the bar are repeat players whom you’ll encounter over and over again. So why not do a favor for them if it won’t cost your client much? The fact that this attitude has become widespread doesn’t make it any less a violation of the attorney’s ethical obligations.
It’s not self-contradictory, but there should be a reason given to remove them beyond “it’s better politics.” Unless, of course, the DOJ’s job no longer is to be the whole federal government’s attorney, but instead to be a politicized entity that picks and chooses what arguments to make, what laws to defend, which people to prosecute, based on the party of the person occupying the White House. I’d really hoped that the end of the Bush Administration had marked the end of that kind of DOJ.
Another case on which W. Scott Simpson worked, in which the plaintiffs resented what they thought the government’s brief was implying about them.
Yes, I understand that was the argument made in the brief. I hope you understand that it’s nonsense.
Current state law about SSM is a spectrum, running from the most homophobic (non-recognition of any same-sex relationship, including civil unions), to the slightly less homophobic (recognizing civil unions but not same-sex marriages), to edging towards SSM (recognizing civil unions & marriages performed in other states, but not allowing same-sex marriages to be performed within the state), to full and equal recognition of SSM.
Something in the middle of that spectrum could be reasonably described as “not taking a side.” (I might disagree, but I’d concede that the argument is reasonable.) However, DOMA commits the Federal Government to the most homophobic position on this spectrum. That is not avoiding picking a side; it is unambiguously taking a side.
DOMA wasn’t written by a neutral third party; it was written by those who oppose SSM. It is their side.
* * *
I agree with you, PG, the attacks on W. Scott Simpson have often been unfair, and in particular the mormon-baiting. I think that it would be relevant if someone could show that W. Scott is a fundamentalist
with a history of taking religiously-motivated religious right positions; but the mere fact that he’s Mormon, lacking anything more, is just bigotry.
(I think it’s understandable why, in the wake of organized Mormanism’s extraordinary effort to pass prop 8, a lot of queer activists have become extremely suspicious, and in some cases simply bigoted, towards Mormons. But “understandable” does not mean “right.”)
* * *
PG, I think you’re very naive if you think that politics never, ever made a difference to how the DOJ argued up until the Bush II administration. Nor am I convinced that it should make absolutely no difference who the public elects. The DOJ should of course follow the law and do their duty, but they serve an elected official, and their approach to doing their duty should reflect that. Elections should matter in a Democracy.
Richard Socarides, a lawyer who worked in the Clinton White House — and who cannot, I think, be said to be an entirely ivory-tower lawyer who has forgotten how the law actually works in practice — argues:
* * *
That said, even if you believe that the DOJ had no ethical choice in the world but to file this exact brief exactly as it was written, and no choice but to release it on the anniversary of Loving, that still doesn’t get Obama off the hook. If Obama had been showing a sincere effort to repeal DOMA (or just part 3 of DOMA) up to this point; if he had ever acted on Don’t Ask Don’t Tell (a policy that’s so unpopular, even most Republicans who are polled oppose it); if he had at least coupled the release of this brief with a specific commitment to getting Congress to vote on a bill to overturn part or all of DOMA this session; then the reaction would have been 100% different.
Context matters. The “we’re really pro-gay, really we are, but the DOJ had no ethical choice but to submit this actual brief, exactly as written” argument only works, in other words, if there were real and substantial evidence that the Obama administration has taken pro-gay actions on any big issue.
Amp,
How do you envision this working as a practical matter? The federal government either deems a relationship to exist or it doesn’t. Either you’re a spouse and exempt from the estate tax when you inherit from the deceased, or you’re not a spouse and you’re subject to the tax. Is the idea that “something in the middle” would be having same-sex spouses paying only half the tax? Getting only half the pension or Social Security payout? All of those still involve federal money, and federal money is the money of all taxpayers, not just those who are the recognition end of the spectrum.
I don’t feel compelled to take Richard Socarides very seriously for a few reasons:
1) While he has experience as an attorney, that wasn’t his role in government. Socarides served on national political campaigns, as Deputy Director for Public Liaison for Clinton/Gore ’96 and as Political Director and Senior Advisor for U.S. Senator Tom Harkin in 1991-92. He also served on Tom Harkin’s U.S. Senate staff. From 1993 to 1999, Socarides worked as a White House advisor in a variety of senior positions. He served as Special Assistant to the President and Senior Advisor for Public Liaison and also as Chief Operating Officer of the 50th Anniversary Summit of NATO. He coordinated communications and event strategy, policy and community outreach relating to key initiatives and represented the President and articulated administration policy in public appearances.
That’s not legal work; all of those positions have been held by non-attorneys. He was not White House counsel; he had no particular relationship with the DOJ. He knew how the White House worked on political matters, but there’s no reason for him to have particular insight on how the DOJ worked.
2) He provides no examples of this: “From my experience, in a case where, as here, there are important political and social issues at stake, the president’s relationship with the Justice Department should work like this: The president makes a policy decision first and then the very talented DOJ lawyers figure out how to apply it to actual cases. If the lawyers cannot figure out how to defend a statute and stay consistent with the president’s policy decision, the policy decision should always win out.” If this is true, when did it happen? When did the Clinton Administration ever decide as a policy matter not to defend a Congressional statute that was under constitutional attack?
3) In particular, Socarides offers nothing about why his boss and buddy Clinton decided to sign DOMA in the first damn place. Credibility — shot.
By this argument, PG, the Federal government’s current position could not possibly be termed “neutrality.” So you seem to be implicitly admitting, the Feds have taken a side.
***
A neutral position would be one in which neither side gets all that they want. The federal government could take the same halfway position that many states have taken: civil unions. This could work in two ways:
1) Federal government automatically recognizes civil unions, and automatically recognizes any married same-sex couple as having a civil union for federal purposes.
2) Federal government creates a Federal civil union registry, which anyone who has a recognized civil union or marraige in their state can apply for.
Civil unions could have all the benefits of marriage, except for the word “marriage.” Since this is, in reality, the middle position on the spectrum of positions taken by the states, it can reasonably be claimed to be a “neutral” or compromise response. It certainly has a better claim to being a neutral position than the DOMA position does.
* * *
The bit I quoted wasn’t about not defending a statute; it was about defending it, but picking and choosing which arguments to use. You seem to think that it’s always legally unacceptable to make narrow arguments; are you seriously arguing that the DOJ has never, ever submitted a brief with narrow argumentation?
According to you, academic lawyers who are experts in this field of law are not worth listening to, because they’re academics and therefore have no idea how things work. And a lawyer who actually worked in a Democratic White House and saw how policy sausage was made close up is irrelevant, because his work in the WH wasn’t legal work, and because his boss signed a law he obviously disagrees with.
At this point, PG, since you have presented ad hom rationalizations for dismissing all lawyers who disagree with you, I have to ask: Have you ever personally filed a brief while you were employed by the DOJ?
* * *
Otherwise, I stand by my arguments here. You have been extremely unpersuasive in arguing that the DOJ had no choice but to file exactly this brief, with exactly these arguments; and you haven’t responded at all to my arguments that part of the problem with this brief is the context of the Obama administration’s (lack of) actions towards important LGBT issues since taking office, and also how they presented and contextualized this brief.
(Admittedly, perhaps you haven’t responded to that because you agree with me regarding context. You haven’t stated an opinion on that one way or the other.)
Amp,
By this argument, PG, the Federal government’s current position could not possibly be termed “neutrality.” So you seem to be implicitly admitting, the Feds have taken a side.
No, because the opposite side of the “we should have SSM everywhere!” position is the “we should have SSM nowhere!” position. The federal government took a side on polygamy: they said it wouldn’t be allowed in any state in the Union. That’s not what we have now with SSM. Indeed, even the Bush Admin’s DOJ said that DOMA wouldn’t prevent the non-biological child of a civil union couple from obtaining child’s benefits through the Social Security Act, nor preclude a transsexual who made what a state deemed a heterosexual marriage from obtaining benefits under immigration law.
Federal government recognition of civil unions is not a “halfway point” on the spectrum between the federal government’s treating same-sex couples like married couples and the fed government’s not doing so. It’s all the way over on “treating them like married couples.” The majority of states do not have any recognition of same-sex relationships: no domestic partnerships, civil unions, or SSM.
I think it’s always acceptable to make narrow arguments when such arguments serve your client’s interest. However, to make arguments based on your own political agenda is unethical. The standard example of this for liberal lawyers is when you’re doing a death penalty appeal. What we’d ideally like is for the death penalty to be declared categorically unconstitutional. That would be awesome! Then we’d never have to do any more of these damn appeals! However, it’s really really unlikely that’s going to happen.
If you spend the majority of your time working on the brief’s 8th Amendment arguments instead of the narrow, specific ones that are particular to your client’s case of why he didn’t get the level of due process required, you’re serving your own interests, not his. As a general rule, people on death row don’t give a damn about breaking new ground in the law; they just want not to be executed themselves. If you can’t stick to what serves your individual client’s interest, you shouldn’t be his primary attorney writing the brief; you should go join a think tank and file as an amicus instead. The Federal Programs division of the DOJ is the federal government’s lawyer. It is their job to make all non-frivolous arguments on behalf of their client.
No, I said that academic lawyers sometimes lose sight of the “zealous advocacy” part of ethical duties to the client. Quite frankly, they’re exactly the types most likely to make the kind of mistake I described above: they’ve developed a new theory of the law and they want to test it in court, even if it’s not the most likely winner for the client. They are welcome to do so in an amicus brief (many major cases feature academics as amici, sometimes even allowed time during oral argument to take questions from the judges on that theory).
Richard Socarides’s opinion of how the DOJ works isn’t worth much because he’s never worked for nor closely with the DOJ. I brought up the fact that his boss signed DOMA not because that in itself makes his views irrelevant, but because he never explains just what the sausage-making process there was. On the highly relevant question of how we got DOMA in the first place — a question that has nothing to do with the DOJ, but on which Socarides presumably could shed some light — he provides no answers. He provides no specifics at all, in fact. No examples. No cases. No details. Why should I consider him authoritative or even persuasive?
My problem is not with lawyers who disagree with me; it’s that all the lawyers you cite are people with no experience working for or closely with the DOJ. There are lots of lawyers who have worked for the DOJ; if this brief is clearly out of line from past practices, let’s hear from one of them explaining why. I can’t say whether I have been on a brief at the DOJ (or anywhere else) because I’m not authorized to speak in that role.
I completely agree with you that the reason people are attacking this brief so fiercely has less to do with the contents of the brief than the political context in which it comes. I do not consider that a sound reason to criticize the brief.
No, not in this context. That would generally be a compromise position, not a neutral position. Neutrality towards condition X usually means that condition X has no effect on your behavior.
I am a bit confused as to why you are arguing against such a common use of the word “neutral.” You should have come across it in a variety of instances.
For example, if a policy is “race-neutral” or “neutral as to race” it does not mean that “neither race gets all that they want and both races get a bit of what they want.” It simply means that the policy is
blind to raceenforced without any regard to race, as if race didn’t exist. A race neutral policy can benefit either race as a practical matter and still be race neutral.That’s where the whole “facially neutral” issue comes up. Things can be “neutral” (alumni preferences at Yale) and can still have a hugely disproportionate effect.
Remember those three things I wrote above, that you didn’t respond to? That’s one common way that “neutrality” is used in legal appellate code. No consideration of a characteristic for good or bad, it’s “neutral.”
It doesn’t mean that the INTENT OF THE LEGISLATURE was neutral. It doesn’t mean that the FUNCTIONAL RESULT OF THE STATUTE is neutral. It means that the statute does not allow a given characteristic to affect outcome. The statute is “blind” to the issue.
As far as I can see, you are claiming that failing to consider the effect of SSM, and failing to allow the existence or nonexistence of SSM is de facto “non neutral.” That’s not
You probably won’t find this in a dictionary, but in my experience “neutrality” is commonly a process word, not a results word, at least in the legal world. The way you are using it is commonly referred to as “equality.”
Also:[ed: deleted.]
Sigh…
SM, my point was that just as my asking a ad hom question about PG’s qualifications would be a bad argument, PG’s arguments for dismissing academic experts and a lawyer who actually worked in the WH were bad arguments. Sorry that I didn’t spell that out clearly enough.
And I don’t recall saying “only a lawyer.” I respect that as lawyers, you and PG know more about the law than I do. But I don’t assume that because you’re lawyers, you’re right anytime you disagree with me about a legal question. Especially when it’s obvious that there is no consensus among lawyers about the question under discussion.
Also, sorry I’m not responding to everything. I have this “cartooning” stuff I do on the side, which sometimes takes some time. :-P
Amp,
You still seem to be under the impression that I was dismissing Socarides’s arguments because he didn’t have a legal role in the DOJ. I wasn’t; you’d introduced him as “a lawyer who worked in the Clinton White House ,” giving the impression that he had personal experience of dealing with exactly the issue being debated here. I was dismissing him as being inherently authoritative due to experience. If his claims stood up on their own, that would have been irrelevant, but they don’t stand up; he just doesn’t provide any facts to back them up. Given the weakness of the arguments, why should the fact that he worked in the Clinton White House make him any more worth listening to than any random schmoe off the street?
What’s being said by a gay attorney who actually worked in the DOJ under Clinton:
Sailorman:
As you say, the brief does emphasise that marrying someone of the same sex won’t cost you any federal benefits that you have access to as a singleton. And, yes, someone could call that a “neutral” effect. But the brief doesn’t call it that.
The word “neutrality” crops up a total of 6 times in the brief (“neutral” isn’t used at all), and in each case, it refers to a federal neutrality, purportedly embodied in DOMA, between the conflicting claims of state law.
Here are all 6 instances (I’ve bolded a capsule summary of this supposed policy of neutrality):
PG writes:
Yes, but the attorney works for their CLIENT, not the other way around.
The Department of Justice is part of the Executive Branch, not some independent entity. Obama is the Chief Executive, not some middle manager or head of some other branch.
I think this case is an example of “Bad cases make bad laws.” These weren’t the best possible plaintiffs and based on what I read in the brief, they didn’t present the best possible case.
I do think there are several seriously whacked arguments in the government brief. I’d hope that when a better plaintiff with some real injuries shows up that they bring a real lawyer with them. I also agree with a poster up-thread who suggested this might be some kind of false-flag action. The “can’t make those bigots pay same-sex marriage benefits” bit is transparent.
In case anyone missed it in the news, Obama has just modified the rules so that unmarried partners of federal employees (same sex or opposite sex) can become eligible for certain federal benefits ,irrespective of their marital status.
Link:
http://www.latimes.com/news/nationworld/nation/la-na-gay-benefits18-2009jun18,0,3111414.story
I agree, but I think we have a different understanding of who the client is. My understanding is that the DOJ’s client is not just Obama, but the federal government as a whole. The “Federal Programs” division of the DOJ in particular is obliged to handle “the defense against constitutional challenges to federal statutes, suits to overturn government policies and programs, and attacks on the legality of government decisions. The Federal Programs Branch also initiates litigation to enforce regulatory statutes and to remedy statutory and regulatory violations.”
Given that the federal government is the DOJ’s client, the DOJ generally cannot refuse to defend a duly passed and signed federal statute against a constitutional challenge. Even when the president himself is skeptical of the constitutionality of the statute (as Bush was with McCain-Feingold bipartisan campaign reform act), the DOJ still shows up to defend that statute in court (as they did in McConnell v. FEC).
If the DOJ is ethically obligated to be a zealous advocate for their client, the federal government, they should not refuse to make an argument based on whether it might offend some part of the president’s political base. That is exactly the kind of politicization of the DOJ that Bush committed and that I’d hoped Obama would end.
I think that FCH may have a point, insofar as the DOJ is an administrative body bound to the executive branch which is therefore technically under control of the president.
Obama could in theory instruct the DOJ not to raise a defense to anything, because the order of the president supersedes the internal rules of the DOJ. Or even if he is prevented by his own rulings from doing so on a case by case basis, he could theoretically dismantle the DOJ to a large extent: Congress doesn’t have that sort of enforcement power.
But as a practical matter this isn’t done, which is a good thing IMO.
Sailorman,
I’m not saying that the DoJ can just refuse a case, but that how the brief is constructed is a matter with some leaway.
By all means, certainly, defend DOMA against that suit. But as the brief makes very plain, there were enough procedural flaws that the brief could have been written to address those merits alone, and all this offense avoided.
For example — when I got divorced 13 years ago, my attorney was told what the boundaries were and what lines he wasn’t allowed to cross. This meant that there were no “dirty tricks” coming from my side the way there were from opposing counsel. OC made all sorts of bizarre claims and accusations, all in the interests of “zealously advocating the clients interests.” However, the facts were on my side for many of the claims and there was no need to resort to the hijinks lawyers are often want to do.
The issue here isn’t whether or not the federal government should have refused to defend DOMA at all. On this thread, no one has argued that; I therefore wish that PG and SM would stop beating that strawman, or move those particular arguments to some other forum where people are arguing that.
Your argument vastly understates what the Bush administration did to politicize the DOJ. If you honestly can’t see the huge difference between “the brief should have used narrower arguments” and “the DOJ should fire prosecutors who fail to conduct trumped-up investigations against members of the opposition party,” then I don’t think it’s possible to discuss this issue with you.
Y’all might be extremely interested in the latest DOMA attack; see the open thread for details.
And speaking of queer issues, courtesy of Equality Texas —
“The full Senate is scheduled to vote — this week — on the Matthew Shepard Hate Crimes Prevention Act, so your Senators need to hear from you now! Please send an email and, if you have a couple extra minutes, please call each of your Senators, too.”
I sent my favorite racist, sexist, homophobic, anti-worker asshat an e-mail.
Okay, I didn’t actually sign my name that way. I like using “Terrorism” to describe hate crimes. I figure that being opposed to fighting terrorism is something Republicans will die rather than do.
No, they’ll just say that your equating of what you’re terming a hate crime with terrorism is false.
RonF,
What is false about FCH’s equating the assaults committed against her with terrorism? 18 U.S.C. 2331:
Hate crimes are generally dangerous to human life and are already themselves crimes; are intended to intimidate a civilian population; and occur primarily within the territorial jurisdiction of the United States.
I would be OK with limiting hate crimes laws only to those crimes that are “generally dangerous to human life,” such that putting hateful graffiti on a synagogue or temple wouldn’t be under federal jurisdiction, but all acts of arson, assault, homicide etc. would be. But most hate crimes that the federal government involves itself in are crimes that are “generally dangerous to human life,” so that wouldn’t make much of a change. Certainly what was done to FCH would still be within the feds’ purview.
There will always be a significant contingent of people (like me) who will oppose hate crime legislation so long as we believe the intent to be that of selectively protecting certain groups. Compensation for certain group statuses may be appropriate in hiring, school admissions, and the like. But it is not appropriate in the criminal code.
Unless you want to resort to True Scotsman tactics, it’s difficult to argue that there aren’t isolated pockets (or large areas) in which the traditional power/hate structures aren’t reversed. And you don’t even need to be in those areas. Unlike the whole “there is no reverse racism” argument which relies on systemic power, crime is individual: there is sure as heck crime between groups in both directions.
We think of hate crimes every time that a gay guy gets beaten up by a straight guy. But if we’re not trying to create a “protected criminal class, we need to be thinking of hate crimes every time a straight guy gets beaten up by a gay guy, too. After all, it’s not as if straight folks (or any other majority) have a monopoly on group identity, power, or the like.
(the rest of the post has been edited) Do you support the use of hate crime legislation in ALL cases? It’s popular to want the prosecutor to dig into hate crime possibilities every time two whites beat up a black. But do you want them to do so every time two __ beat up a not-___?
Does this hold true even when the people being charged with hate crimes are minority or disempowered group members, and the purported hate crime victim is not? Are you hunky-dory with assuming “hate crime” when two blacks beat up a white? Does my general dislike of various religions mean I’m eligible for hate crime charges if I get into a fight with a fundie?
Do you want ALL criminal defendants to have this as a charging concern every time that they happen to be on the other side (minority/majority irrelevant) of any group membership?
Or not?
If your (the global “you,” BTW) first response is that “oh, this never happens” or “well, it’s not worth thinking about,” or “no, because the power dynamics aren’t the same,” then what you are functionally doing is supporting selective prosecution of a criminal issue.
If you only want selective prosecution (either enshrined in the law or in the practice of prosecutors), then IMO you are driving the Constitution into a very dangerous place. It’s a bit like saying that there’s no DV against men, for example.
I think hate crime legislation is a bad idea in any case. Not because I support the crime, but because I don’t have great faith in our legal system. I believe our legal system is at its least accurate and most dangerous when we try to make determinations of intent, understanding, and knowledge. We don’t really need hate crime laws; what we need is a better and more fair judicial system which actually enforces the existing laws. But it’d take me a long way towards supporting it if I believed it would be imposed without regard to someone’s minority/majority status.
Sailorman,
What makes a “Hate Crime” a “Hate Crime” is precisely that it is a part of a process by which all or most members of “X” group are in fear of body harm because some other group (“Y”) routinely engages in those crimes.
In the case of Straight v. Queer violence, there’s no evidence that straight people are being targeted by queers for violent acts aimed at either getting them to stop being straight, or stop being straight in public. Blacks aren’t targeting whites for violent crimes to get them to quit living or working around blacks. Christians aren’t targeted by Jews for acts of violence to get them to quit being a bunch of religious co-opting polytheists.
A “Hate Crime” is not simply a crime that makes some people afraid. When there are acts of violence against a synagogue someplace far away, my synagogue steps up security measures, because we know that it only takes one or two crazies to get more crazies to come out of the woodwork. Crimes against Jews-as-Jews impact far more Jews than just the ones in that area. Dittos for Queers, dittos for People of Color.
It is an act of terrorism because that is what it creates — “terror”. When I was in New Orleans just after Katrina, you can best believe I was in a state of “terror” whenever the police did something wrong to People of Color, or to white people who were helping People of Color. It’s a really scary feeling knowing there are people with fully automatic weapons trying to make you feel as unwelcome as possible.
On the national scale, no. But on an individual scale, of course there are. I’ve seen plenty of neighborhoods where non-Orthodox Jews were treated in a fashion which would be tagged as a hate crime if applied in reverse; I’ve seen plenty of areas where being white is likely to get you treated poorly or beaten because of your skin color, etc.
Obviously there are tradeoffs. But I think that the language and enforcement of hate crimes legislations is so damaging to civil liberties that it is not the solution. I grow sorely disappointed at how the left has coopted strategies which it once decried in the name of liberalism.
The fact that most hate crime advocates* do their utmost to prevent equal enforcement is, to me, indicative of a delineating line in their mind between “protected people” and “other people.” It’s coming from the same mindset as affirmative action, blacklists, or selective speech codes: Help group A, at the expense of not-A, and we’ll all achieve equality.
The problem is that this is using the CRIMINAL CODE to do it, and that, to me, is stepping way way way over the line in the sand. I understand the concept of reaching equality through selective benefit, though i don’t always agree with it. But leave the criminal code out of it.
*You didn’t make this clear, so i’ll ask: What is your position regarding equal enforcement?
The fact that most hate crime advocates* do their utmost to prevent equal enforcement is, to me, indicative of a delineating line in their mind between “protected people” and “other people.”
Examples, please? Given that the laws are written based on classifications, not based on listing off the “protected people,” I’d be curious to see how people rationalize that a crime against whites or Christians that is done for the purpose of terrorizing that group should not be prosecuted as a hate crime.
This is different, BTW, from crimes that involve the perpetrators picking a victim based on assumptions regarding age, race, disability and sex. E.g. if I am looking for someone to mug and I pick an elderly white woman using a cane, I’m not trying to terrorize all such persons; I’m just looking for a target that I assume will have money because I believe white people are more likely to have money, and that will be vulnerable due to age, sex and disability.
Indeed, crimes done to enrich the perpetrator (such as robbery) are unlikely to be hate crimes because the non-hateful motive is so obvious: I robbed you for your money, not because I care whether you feel safe in public or not. When the crimes include gratuitous violence toward persons or destruction of property, however — violence or destruction beyond what is necessary simply to grab the property and run — then it’s much more likely that a motive of hatred is at work. If I burglarize someone’s home and in addition to taking the jewelry and electronics, *also* hunt out family photos and destroy them, then there’s something going on beyond my desire to have valuable stuff.
I think Sailorman has an interesting point about hate crime legislation crossing the civil liberties line. However, I grew up in Texas, and while I love my home state, it has some serious issues with LGBT and non-Christian denominations. Racism is still pretty rampant; not just the drag a black man to death behind your truck kind (can you believe that happened in 1998? WTF?) but the separation of race by all parties by distrust and family-passed-on biases.
In cases like that, it seems necessary for hate laws, not to make X group a protected group, but for two reasons that I see: 1) it’s a shaming label, and 2) it keeps the judge from being lenient.
Number one is pretty straightforward. Labelling a crime as a hate crime only allows for viewing it in that sense – you committed a crime of hate. You might get people that disagree with it, but it will polarize the community. That can be good and bad, but eventually for change it’s necessary to call it what it is – to make people uneasy about perpetrating violence on a group that they might not agree with.
Number two seems more important to me. It’s called “good ol’ boy” system for a reason. If you can keep the judges from being able to hand out lenient sentences for killing, you can keep it from being unofficially acceptable behavior.
Now I’m sure I’m missing a few points (the coffee hasn’t kicked in) but my basic attitude is that I would rather err on the side of protecting people who do feel fear from a majority group rather than not. I’m not comfortable with violating civil liberties, though – that’s a point I’ll have to think further on.
I am confused about where there’s a violation of civil liberties involved. You don’t have a constitutional right to assault people, so why would your receiving an enhanced sentence because of your motive constitute a violation of your civil liberties? We consider motive all the time in the criminal law, both in determining what kind of (or even whether it was a) crime, and in sentencing. Why is it that when the motive is one of hatred toward a particular group, that’s the point at which motives shouldn’t be considered?
Let me start with a statement of what i believe to be the real life application:
If I beat up a mulsim transwoman disabled person because I hate mulsim transwomen disabled people (I don’t), it is more likely to get labeled a hate crime. Whereas if I beat up a christian straight macho abled person because I hate christian straight macho abled people (I don’t), it is less likely to get labeled a hate crime. The hate’s the same. The crime’s the same. the victims are different.
Before we go farther: Do you disagree or agree with my predictions? If you disagree, can you explain why?
My sense of hate crime practice is that it works like this:
1) Someone’s victimized.
2) If the victim is a protected group and the perp is a majority group, then hate crime charges are considered.
3) the fact that the victim and perp are in their respective groups is considered evidence of hate crime activity.
Let me explain:
1) An assault motivated by hatred toward a particular group, of which the victim is a member.
OK in theory, not facially problematic. I.e., OK to charge with a hate crime, so long as you do so consistently in all such cases.
Not OK to charge inconsistently based on which group the defendant belongs to and/or which group the victim belongs to, with limited exceptions.
and the subset of that:
An assault motivated by hatred toward a particular group, of which the victim is a member, AND which group is specially protected, i.e. a group which is viewed, truly or not, as being subjected to more than usual assaults.
Immediately not OK, in my view, because it (1) treats defendants differently, i.e. it treats identical hatred with differing penalties depending on whether the victim is in an adequately protected group; (2) it treats victims differently; i.e. it provides additional protection to certain people based only on their group memberships.
It’s a bit of the reverse of a privilege list. The more marginalized your group is, the more likely that you become to get the protections of hate crimes, and the less likely it is that you will be viewed as a perpetrator of hate crimes. This is–surprise!–just like pretty much any “equalizing” program. Which is OK civilly, but not criminally.
So, EQUALLY enforcing hate crime legislation so taht any assault which is motivated by the group membership of the victim would be OK.
As for motives, I think i already addressed this above. I said:
The more that our legal system addresses motives and thoughts, the more frightening it gets to me. It’s not as if I only have this problem with hate crimes. As it is, we usually only address motive in a “did you mean to do it, yes or no” sense, outside of a very few crimes like murder.
Could you explain where you get this “sense of hate crime practice”? It certainly doesn’t comport with what I have seen of the process of prosecuting a hate crime, which DOES NOT consider the mere fact of the victim being in a minority group, and the perpetrator in a majority group, to be sufficient evidence even to indict someone under federal hate crimes laws, much less for the prosecutor to feel any likelihood of getting a conviction under those laws. If it did, almost EVERY crime committed by a person of a majority/dominant group would be getting charged as a hate crime, when in fact hate crime charges are not very common at either the state or federal level.
I assume you’re aware of the various evidentiary rules and burdens of proof for criminal law, so the question is why you think those are in some way suspended or changed if someone is charged with a hate crime? As with any other element of a crime that is defined by motive, the prosecutor must prove beyond a reasonable doubt that a motive was one of animus toward a group to which the victim belonged. When a hate crime is charged, it’s standard to charge the defendant with the hate crime while allowing the jury also to consider the crime without the hate crime element (example).
Heck, even cross-burning prohibitions (which I DO consider a violation of civil liberties, specifically the right to freedom of expression — I am not clear on exactly which civil liberty you consider to be violated by hate crimes laws) are required under Virginia v. Black to put the burden on the prosecution to prove an intent to intimidate.
As for your example of your attack on a Muslim, if you’re as bright as this guy was (telling the cops that you’d wanted to join the military to kill Muslims), then yeah, you’re probably gonna get charged with a hate crime. Assault people of color on Election Night while yelling “Obama”? Ditto.
Hmm.
I may well be wrong in my initial impression of statistics; after spending a while going through the FBI files I am questioning myself.
Certainly, non-majority individuals are reported to commit hate crimes against majority individuals, based on their majority group membership (e.g. a “race bias” crime where the perp is black and the victim white.) Unfortunately, I can’t find prosecution or conviction data which allows me to see if the eventual outcome matches the reporting.
Sailorman,
The reason you’re not seeing all these “reverse bias” crimes is because if they happened, you can best believe a bunch of good ol’ boys would be in a pickup truck (or other metaphore …) and there’d be a bunch of violence going on.
How many straight white boys, brutally beaten by a gang of roving gay thugs, left tied to a fence to die from exposure can you name? How many circumstances do you have to remove before you get 1?
I’ll give you your equality — the next time a group of black men shout black power slogans and chain a white man to the back of a pickup truck and drag him around town, it would be fine with me if it were prosecuted as a hate crime.
What someone else mentioned upthread about gratuitous violence — pointless, excessive, senseless, BRUTAL violence — is pretty much the case. Queers who are beaten for being queer aren’t just robbed a little.
@ Sailorman:
Which strategies has the left coopted? This might help me understand your civil liberties argument. I’m having a hard time seeing how Hate Crime laws interfere with civil liberties, but I want to make sure that I’m not missing something.
And also, could we specify WHICH civil liberty we have in mind here? A citation to the Constitution would be helpful. First Amendment? Fourth?
I think Sailorman’s almost right, but just missing the important point. The reverse bias thing doesn’t work. PG’s absolutely correct that hate crimes are based on list of protected classifications – like religion, race, sexual orientation – so it’s still a hate crime if it’s committed against muslims or christians, blacks or whitess, or gays or straights.
I think the problem is that there is a list of protected classifications. Hate crime advocates could have decided to try and make any crime committed for the purpose of terrorizing a group a hate crime – but that never been the agenda. It’s really been about making politically motivated distinctions between the worthy and unworthy and making some sort of moral and political statement that their identity politics is important.
Examples? Take belief: religion’s protected, if you’re attacked for being Christian you’re deserving, but politics isn’t, if you’re attacked for being a marxist you’re not deserving. Sexuality: sexual orientation is protected, but more specialised attractions like foot fetishists aren’t. Physical characteristics/culture: race and ethnicity is protected, but other things like albinism or exotic hair colour, or social class aren’t. You can spot things that aren’t on the list very easily and multiply these examples endlessly.
The distinction between classifications that make the list and those that don’t are just incoherent – and pretty much boils down to politics. The idea of hate crimes may work in theory, but this is undercut by how they’re enacted in practice. If their advocates were really bothered by crimes committed to terrorize a group, then why the deliberate framing of these laws to place restrictions on what kinds of groups? There’s something else going on.
Actually, most protected classes make at least some sense: protected classes tend to be immutable, i.e. characteristics which are not subject to change. Sex, age, race, birthplace, etc: all immutable.
Some protected classes make less sense, but are linked to historic and social issues: religion is by no means an immutable trait, but arguably it’s a bit much to expect a non-adult to spontaneously reject their parent’s religion. And we’ve had so much shit worldwide regarding religion that it arguably makes sense to protect it.
Political views are both mutable and are also related to social pressures, so protecting them from assault makes little sense in a democracy. I don’t know about fetishes. Hair color is easily altered. Social class is difficult to change but nonetheless alterable. And so on.
Also, where are the instances of anti-Albino hate crimes. Foot-fetishist hate crimes? Purple hair hate crimes?
Some of these groups are so underrepresented in the populace that if Al The Albino were brutally assaulted to within an inch of his life, are the rest of the albinos in this country really going to know about it and refuse to go out for fear of assault?
Rather than some conspiracy to protect the “Politically Correct” minority groups, I think it’s more laziness on the part of legislators, and the desire to avoid crafting a law that’s so vague it doesn’t stand up to a challenge.
“I hate laws because the don’t protect every single last group I think they should” doesn’t strike me as a valid reason not to have the law, but more like not wanting the law because of the people it DOES protect.