Federal Hate Crimes Law and Editorial Missives

As I'm sure everybody knows now, Obama just signed landmark hate crimes legislation making it a federal crime to willfully cause bodily harm to someone because of their actual or perceived sexual orientation, gender identity, or disability. The Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act (enrolled as H.R. 2647, now Public Law No: 111-84) is Division E of the "National Defense Authorization Act for Fiscal Year 2010," meaning that this landmark civil rights legislation was a rider on a military appropriation act.

I was curious to see how (or even if) any respectable opposition to this bill exists. I have found at present only Jillian Bandes at Townhall, who writes:

The Department of Defense Authorization Act (H.R. 2647) is going to a vote on Thursday. It's caused significant strife among Republican Senators who want to vote to fund our troops, but will also be forced to vote for controversial hate crimes legislation if they do so.

Some legislators have said they will withhold their vote; others said they're going to just bite their tongue, but whatever the case, it's a dirty tactic on an issue that deserves a separate, Democratic vote by itself.

I think we can reject the argument on its merits fairly simply. Her definition of "controversial" appears to stem from her misreading of the bill, and to this I would direct people to her April 30 article on the subject. To summarize: this law makes it a federal crime to beat, kidnap, kill, maim, or otherwise inflict bodily harm to someone because they are gay. Where is the controversy in that?

More interesting is an analysis of her rhetoric. Although this two paragraph report is thin, she identifies the use of attaching riders on bills as a "dirty tactic," but perhaps only when engaging an issue that "deserves" a "Democratic vote." I don't want to speculate about her capitalization of Democratic--I suspect this was just careless grammar. But why a "dirty" tactic? The word conjures up an immediate sexual reference, suggesting both the forbidden and the obscene. There seems to be some level of association here between the subject matter--protection of gay men and women--and the author's own feelings on the matter.

I do not deny that this may be making a mountain out of a molehill. But that is precisely what Brand's own reporting does--to point the finger at relatively innocuous legislation that has strong moral content (prevention of violence) and hooks into a well-established constitutional tradition of protecting civil rights (this extends back to 1866) and call it "dirty" is laughable. Unless, of course, one begins with the assumption that federal support of gays' civil rights is morally wrong.

I should point out here that the interesting constitutional issue--well known to constitutional lawyers--is whether the Thirteenth Amendment, which ended slavery, can really provide Congress with the authority to pass hate crimes laws that protect people other than former slaves. Historically, the real question is the ebb and flow of congressional and judicial enforcement of these laws protecting basic human rights. The Supreme Court has swung from one extreme to the other in its history on the subject. Congress has been alternately hot and cool on the subject. And a parallel (although problematic) might be antilynching law, which Congress could never pass in the early twentieth century despite tremendous need because southern senators banded to filibuster and kill such legislation. Now that was a dirty trick.

Saturday Night Supreme Court Smackdown: Scalia v. Breyer!!!!!

Okay, not so much Wrestlemania as civilized discussion. But those interested in pinning down disagreements on constitutional interpretation might be interested in this combative discussion between Supreme Court associate justices Antonin Scalia and Stephen Breyer.

Serious students of Supreme Court methodology and judicial philosophy will likely be disappointed in this discussion. Both justices articulate their philosophies reasonably well, but speak in generalities that make make them both appear startlingly naive at times. Breyer, for instance, identifies affirmative action as a hard topic because of its challenges in terms of understanding precisely what "equal protection" means (i.e., is the Constitution color blind or does it allow legislators to promote equality through affirmative action policies?) but offers little in the way of guidance for how justices might solve this riddle. One is tempted at times to conclude, with Scalia, that his philosophy is just the substitution of modern moral outlook for key phrases in the Constitution. If "equal protection of the laws" in the Fourteenth Amendment merely means whatever we want it to mean--if it has no fixed meaning--then we are really at sea (Scalia's phrase).

But this raises the perennial problem of "fixed" meaning in legal texts. Consider Scalia's jaw-dropping statement that Brown v. Board of Education was an easy case. Originalist principles, Scalia argued, would lead one to conclude that segregated schools violated the "equal protection clause" of the Fourteenth Amendment. But his application of original meaning jurisprudence does not lead to this conclusion. Given that some schools were segregated in northern states at the time of the Fourteenth Amendment's adoption and that courts had consistently upheld race-based laws and reconciled them with "equal protection" requirements, any credible application of originalism would allow in 1954 for the continued segregation of educational facilities. Scalia warded this off by suggesting that the text was clear--equal protection of the laws means that you have to treat everyone equally. But formal legal equality was part of the segregationist regime in the United States, and formalist legal principles masked the inequality that is so apparent to us today.

I should note quickly that I am not commenting here upon those journalists who misquoted Scalia as suggesting that segregation was constitutional under the provisions of the Fourteenth Amendment (hat tip to Jack Balkin and Balkinization, linked above). But I think it ironic that misquoting Scalia actually gets closer to the true application of Scalia's jurisprudence. After all, Scalia is to be applauded for demonstrating the limits of his own jurisprudence. Certain laws, he says, may be appalling. Or just stupid. But that does not necessarily mean that they are unconstitutional. I agree. But, I fear, application of this judicial philosophy would have upheld school segregation in 1954. And Scalia ought really to come to terms with it.

Veterans, the Desert Cross, and the Separation of Church and State

The Supreme Court heard oral arguments yesterday in Salazar v. Buono, an interesting (albeit somewhat technical) case involving the existence of a five-foot white cross on public land (in the Mojave National Preserve) erected by the Veterans of Foreign Wars to honor those who died in World War I. The VFW was initially hit with an injunction directing that the cross not be displayed as a violation of the Establishment Clause of the First Amendment. The federal government covered the cross, and Congress in the mean time organized a land transfer to the VFW that required that organization to maintain a war memorial on the land. A second injunction was sought, the district court ruled the land transfer invalid, the Ninth Circuit upheld, and the case is now pending before the Supreme Court.

The most interesting exchange in oral arguments was arguably the least important, from a legal standpoint. The issues before the Court (e.g.: standing of the respondent; constitutionality of a land swap with a reversionary interest) turn on technical issues that will have to be translated into English for the rest of us. But the interesting exchange had to do with the meaning of religious symbols. I quote from the transcript, which you can find here.

JUSTICE SCALIA: The cross doesn't honor non-Christians who fought in the war? Is that -- is that --
MR. ELIASBERG (counsel for the respondent): I believe that's actually correct.
JUSTICE SCALIA: Where does it say that?
MR. ELIASBERG: It doesn't say that, but a cross is the predominant symbol of Christianity and it signifies that Jesus is the son of God and died to redeem mankind for our sins, and I believe that's why the Jewish war veterans --
JUSTICE SCALIA: It's erected as a war memorial. I assume it is erected in honor of all of the war dead. It's the -- the cross is the -- is the most common symbol of -- of -- of the resting place of the dead, and it doesn't seem to me --what would you have them erect? A cross -- some conglomerate of a cross, a Star of David, and you know, a Moslem half moon and star?
MR. ELIASBERG: Well, Justice Scalia, if I may go to your first point. The cross is the most common symbol of the resting place of Christians. I have ben in Jewish cemeteries. There is never a cross on a tombstone of a Jew.
(Laughter.)
MR. ELIASBERG: So it is the most common symbol to honor Christians.
JUSTICE SCALIA: I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead. I think that's an outrageous conclusion.

Outrageous indeed. Scalia probably meant that the intent of the cross's erectors (the VFW in 1934) was to honor all the war dead. What he left out was that in 1934, the VFW could conflate "American war dead" with "Christian war dead" and receive very little in the way of argument. This conflation may still have offended Jewish, Muslim, Buddhist, and veterans of other faiths, but this was not the intent of the VFW. They were simply using a common cultural symbol. In this sense, Scalia misses the mark entirely--his comments were predicated on the fact that nowhere did the memorial explicitly exclude any other religion. But symbols are useful precisely because they implicitly (through a cultural identification process) include and exclude certain groups of people. To be blind to this is to be obtuse (if not outrageous).

But I reiterate: this exchange was not central to the issues in the case. It is interesting precisely because it gets at the heart of the question of how culture can inform our understanding of legal and constitutional issues. And for the record, I understand Scalia's evident frustration. I attended Pomona College, an educational institution founded by Congregationalists and whose official seal portrays a cross and the words: "Our Tribute to Christian Civilization." As a senior student there, I publicly opposed changing the seal to be more inclusive. I did so not because I value "Christian Civilization" (it is a misnomer), but rather because the symbol has historical import and we cannot simply change out symbols in the name of multiculturalism without risk of losing our sense of historical presence.

The same argument, I think, might apply here. And the oral arguments are worth perusing just to see how the justices signaled one another about the inherent trickiness of Establishment Clause jurisprudence, and just how much context matters in making determinations that honor the spirit of the First Amendment, the concerns of a pluralistic United States, and our own sense of identity and history.