June 2009 Archives
If Bernie Madoff's crimes were "extraordinarily evil," as his sentencing judge declared, than how to we describe the crimes of Joseph Stalin, or the warp speed massacres in late 20th century Rwanda? How do we distinguish linguistically between a massive Ponzi scheme and genocide? It's not an idle semantic question. Hyperbole, pop culture's lingua franca, doesn't simply exaggerate; it also diminishes. It threatens to obliterate essential moral and aesthetic distinctions, undermining our ability to recognize gradations of good and evil, freedom and repression, or beauty, intelligence and talent.
Yes, Madoff ruined countless lives (literally, considering the effect of his fraud on charities as well as individual investors.) Yes, he stole on a grand scale and earned his imprisonment. Yes, apparently he had his share of neuroses, (like reported obsessive compulsive tendencies,) but who doesn't? Generally, he seems such an ordinarily evil man. His sins -- greed, selfishness, dishonesty, an absence of empathy -- are all distressingly common. Indeed, his story owes its symbolic resonance to the ordinariness of his character and crime. Extraordinary people stand apart. Madoff stands within and for the acquisitive, status hungry culture that lionized him, the tribalism that led so many Jews to trust him, and the corrupt financial and regulatory system that allowed him to prosper.
Yes, Madoff ruined countless lives (literally, considering the effect of his fraud on charities as well as individual investors.) Yes, he stole on a grand scale and earned his imprisonment. Yes, apparently he had his share of neuroses, (like reported obsessive compulsive tendencies,) but who doesn't? Generally, he seems such an ordinarily evil man. His sins -- greed, selfishness, dishonesty, an absence of empathy -- are all distressingly common. Indeed, his story owes its symbolic resonance to the ordinariness of his character and crime. Extraordinary people stand apart. Madoff stands within and for the acquisitive, status hungry culture that lionized him, the tribalism that led so many Jews to trust him, and the corrupt financial and regulatory system that allowed him to prosper.
"Schools given OK to discriminate against Christians," a press release from the Alliance Defense Fund declares, with some justice. The Supreme Court has declined to review the 9th circuit's decision in Truth v Kent, which I discussed here last week (along with a contrary ruling by the 7th circuit in CLS v Walker.) The decision in Truth, allowing public school administrators to withhold official recognition from student religious groups with religious membership requirements, will stand. In other words, (at least within the jurisdiction of the 9th circuit,) schools may use their non-discrimination policies to discriminate against student groups with discriminatory membership rules: a public vision of equality trumps a private, religious right of association.
Back in 2003, while the government was busy enforcing its notoriously inaccurate no fly lists, ensnaring a range of travelers from Senator Kennedy to an activist nun, New Jersey Senator Frank Lautenberg was protesting the Justice Department's failure to use terrorist watch lists to screen prospective buyers of guns and explosives. "The possibility that a person on the State Department's watch list, such as Adnan G. El-Shukrijumah (suspected Al Qaeda Cell Leader), could walk into a U.S. gun shop and legally purchase a weapon is very disturbing to me," Lautenberg declared, in a June 2003 letter to then Attorney General Ashcroft.
Plus ca change. Last month the GAO reported that, in general, being named on a watch list will not bar you from making firearm purchases. A five year review of FBI data showed that "963 NCIS background checks resulted in valid matches with terrorist watch lists record; of these matches, approximately 90% were allowed to proceed..." There's an obvious political reason for this anomaly - opposition of the gun rights lobby to regulation of firearms sales. But the legal reasons are harder to discern. According to the GAO, current law does not "automatically prohibit a person from possessing firearms or explosives because they appear on a terrorist watch list." (emphasis added)
But is someone named on the lists legally permitted to purchase a firearm? Executive Order 13224, issued shortly after 9/11, authorized the Treasury Department to promulgate a list of suspected foreign and domestic terrorists, with whom all economic transactions are legally prohibited. Along with other federal laws, it created an extensive web of watch lists, with perhaps unintended but entirely predictable results, described in a 2007 report from the Lawyers Committee for Civil Rights. "An increasing number of private businesses, such as banks, mortgage companies, car dealerships, health insurers, landlords, and employers now check the names of customers or applicants against a U.S. Treasury Department terrorist list." Some employers outsource list checking to companies that conduct background checks. (LCCR followed up this report with a Freedom of information Act lawsuit that secured the release of Treasury documents relating to consumer complaints about the lists.) Not for profits also engage in list checking: In 2004, the Washington Post reported that the Ford Foundation "daily checks the names of its 4,000 grantees against the government lists;" the Foundation was legally obligated to do so, a spokesman told the Post, and, in any case, "it's just the right thing to do."
Not really. As a result of all this excessively cautious and often covert list-checking by the private sector, "Many Americans who are not on the lists face stigma as well as delayed or denied consumer transactions solely because their names are similar to others who are designated," the Lawyer's Committee reported. "Theoretically, before a grocer sells a pint of milk, a deli serves a sandwich, or a doctor treats a patient, they should all be checking the (treasury) list to make sure they are not assisting a person on the list ... (Executive Order 13224) "extended liability to hair stylists, flower peddlers, hot dog vendors, or any Jane Doe who unwittingly sold a product or service to a designated person." You'd think that an anti-terrorism law applying to people who sell flowers would also apply to people who sell guns.
It's a moot point, I guess, since the watch lists are apparently not being used to obstruct transactions involving guns and explosives -- but it's a point that illustrates the dangerous idiocies of post 9/11 watch list laws. The lists themselves are notoriously inaccurate and difficult if not impossible for innocent victims to correct; the laws are so absurdly broad that they cannot be applied with any fairness or consistency. They can only be enforced erratically and arbitrarily. You probably shouldn't worry about buying or selling an umbrella on the street from or to someone whose name might turn up on a watch list, unless perhaps the Administration is looking for an excuse to prosecute you. The Treasury Department, for example, has used its "virtually unchecked power" under "overly broad" terrorism financing laws to discriminate against Muslim charities, effectively shutting them down with little regard for due process or the First Amendment rights of Muslim Americans, according to a recent ACLU report.
Executive Order 13224 is a primary source of Treasury's summary power to designate suspected terrorists and consign them to economic limbo, and the ACLU urges its repeal. But the ACLU's opposition to EO 13224 and other terrorism financing laws is tainted by its own annual agreement to comply with them, in order to participate in a charitable giving program for federal employees, the Combined Federal Campaign. (I've written about this controversy here, and in Worst Instincts.)
The ACLU, like other organizations, is formally bound by EO 13224 and other terrorism financing laws, in any case, but by voluntarily certifying compliance, it assumes additional contractual obligations to abide by the laws and refrain from hiring anyone named on the Treasury lists. How does the ACLU fulfill these obligations? In an email exchange, organization spokesman John Kennedy stated that the ACLU does not check employees against the watch-lists. What alternative measures does it take? Kennedy declined to "publicly discuss internal personnel and compliance practices." But it's only fair to presume that the ACLU, among other not-for profits, makes a good faith effort to honor its contract with the government and somehow avoid transactions with people named on the lists, engaging in anti-terror measures from which dealers in firearms and explosives seem effectively exempt.
Senator Lautenberg wants "to close the 'terror gap' in the nation's gun laws" and is re-introducing his 2007 "Deny Firearms and Explosives to Dangerous Terrorist Act," which would give the attorney general discretionary authority to block the sale of guns or explosives to known or suspected terrorists. The effort has a lot of obvious, common sense appeal. Gun control advocates are understandably indignant about the gun sale "loopholes" that Lautenberg has long decried, (and pending proposals would provide prospective gun buyers an opportunity to challenge the AG's decisions.) Still, civil libertarians as well as gun rights advocates have good reason to oppose extending terrorism financing laws without dramatically amending them first.
Surveying the highly selective, arbitrary and abusive use of post 9/11watch lists laws by the government and private sector, you see little rationality and virtually no justice. Instead you find a relatively obscure network of statutes, executives orders and regulations that empower the government to impose harsh, discriminatory economic sanctions on individuals and groups rightly or wrongly suspected of terrorism and on virtually any person or group with whom these suspected terrorists engage in mundane economic transactions - a network of laws that strongly encourages the complicity of businesses, financial institutions, and charities in blacklisting. Whatever happened to due process and equal application of the law? It's hard to engage with this unjust, ineffective, anti-terror bureaucracy without being corrupted by it.
Plus ca change. Last month the GAO reported that, in general, being named on a watch list will not bar you from making firearm purchases. A five year review of FBI data showed that "963 NCIS background checks resulted in valid matches with terrorist watch lists record; of these matches, approximately 90% were allowed to proceed..." There's an obvious political reason for this anomaly - opposition of the gun rights lobby to regulation of firearms sales. But the legal reasons are harder to discern. According to the GAO, current law does not "automatically prohibit a person from possessing firearms or explosives because they appear on a terrorist watch list." (emphasis added)
But is someone named on the lists legally permitted to purchase a firearm? Executive Order 13224, issued shortly after 9/11, authorized the Treasury Department to promulgate a list of suspected foreign and domestic terrorists, with whom all economic transactions are legally prohibited. Along with other federal laws, it created an extensive web of watch lists, with perhaps unintended but entirely predictable results, described in a 2007 report from the Lawyers Committee for Civil Rights. "An increasing number of private businesses, such as banks, mortgage companies, car dealerships, health insurers, landlords, and employers now check the names of customers or applicants against a U.S. Treasury Department terrorist list." Some employers outsource list checking to companies that conduct background checks. (LCCR followed up this report with a Freedom of information Act lawsuit that secured the release of Treasury documents relating to consumer complaints about the lists.) Not for profits also engage in list checking: In 2004, the Washington Post reported that the Ford Foundation "daily checks the names of its 4,000 grantees against the government lists;" the Foundation was legally obligated to do so, a spokesman told the Post, and, in any case, "it's just the right thing to do."
Not really. As a result of all this excessively cautious and often covert list-checking by the private sector, "Many Americans who are not on the lists face stigma as well as delayed or denied consumer transactions solely because their names are similar to others who are designated," the Lawyer's Committee reported. "Theoretically, before a grocer sells a pint of milk, a deli serves a sandwich, or a doctor treats a patient, they should all be checking the (treasury) list to make sure they are not assisting a person on the list ... (Executive Order 13224) "extended liability to hair stylists, flower peddlers, hot dog vendors, or any Jane Doe who unwittingly sold a product or service to a designated person." You'd think that an anti-terrorism law applying to people who sell flowers would also apply to people who sell guns.
It's a moot point, I guess, since the watch lists are apparently not being used to obstruct transactions involving guns and explosives -- but it's a point that illustrates the dangerous idiocies of post 9/11 watch list laws. The lists themselves are notoriously inaccurate and difficult if not impossible for innocent victims to correct; the laws are so absurdly broad that they cannot be applied with any fairness or consistency. They can only be enforced erratically and arbitrarily. You probably shouldn't worry about buying or selling an umbrella on the street from or to someone whose name might turn up on a watch list, unless perhaps the Administration is looking for an excuse to prosecute you. The Treasury Department, for example, has used its "virtually unchecked power" under "overly broad" terrorism financing laws to discriminate against Muslim charities, effectively shutting them down with little regard for due process or the First Amendment rights of Muslim Americans, according to a recent ACLU report.
Executive Order 13224 is a primary source of Treasury's summary power to designate suspected terrorists and consign them to economic limbo, and the ACLU urges its repeal. But the ACLU's opposition to EO 13224 and other terrorism financing laws is tainted by its own annual agreement to comply with them, in order to participate in a charitable giving program for federal employees, the Combined Federal Campaign. (I've written about this controversy here, and in Worst Instincts.)
The ACLU, like other organizations, is formally bound by EO 13224 and other terrorism financing laws, in any case, but by voluntarily certifying compliance, it assumes additional contractual obligations to abide by the laws and refrain from hiring anyone named on the Treasury lists. How does the ACLU fulfill these obligations? In an email exchange, organization spokesman John Kennedy stated that the ACLU does not check employees against the watch-lists. What alternative measures does it take? Kennedy declined to "publicly discuss internal personnel and compliance practices." But it's only fair to presume that the ACLU, among other not-for profits, makes a good faith effort to honor its contract with the government and somehow avoid transactions with people named on the lists, engaging in anti-terror measures from which dealers in firearms and explosives seem effectively exempt.
Senator Lautenberg wants "to close the 'terror gap' in the nation's gun laws" and is re-introducing his 2007 "Deny Firearms and Explosives to Dangerous Terrorist Act," which would give the attorney general discretionary authority to block the sale of guns or explosives to known or suspected terrorists. The effort has a lot of obvious, common sense appeal. Gun control advocates are understandably indignant about the gun sale "loopholes" that Lautenberg has long decried, (and pending proposals would provide prospective gun buyers an opportunity to challenge the AG's decisions.) Still, civil libertarians as well as gun rights advocates have good reason to oppose extending terrorism financing laws without dramatically amending them first.
Surveying the highly selective, arbitrary and abusive use of post 9/11watch lists laws by the government and private sector, you see little rationality and virtually no justice. Instead you find a relatively obscure network of statutes, executives orders and regulations that empower the government to impose harsh, discriminatory economic sanctions on individuals and groups rightly or wrongly suspected of terrorism and on virtually any person or group with whom these suspected terrorists engage in mundane economic transactions - a network of laws that strongly encourages the complicity of businesses, financial institutions, and charities in blacklisting. Whatever happened to due process and equal application of the law? It's hard to engage with this unjust, ineffective, anti-terror bureaucracy without being corrupted by it.
Secularists scoff when conservative Christians complain that they're oppressed. So many demands for putative religious rights - like the "right" to conduct official school prayers - are really demands for religious power. But Christian groups sometimes have good reason to protest denials of their rights, especially in academia.
On college and university campuses and in high schools, Christian student groups risk being denied official school recognition because their religious beliefs conflict with anti-discrimination policies. These controversies often involve groups that bar gay students from qualifying for voting membership or leadership positions if they don't acknowledge the alleged sinfulness of their ways. Liberal advocates of equality applaud the denial of official status to conservative groups deemed hostile to gay people; conservatives and some traditional civil libertarians decry the denial of fundamental associational and religious rights to Christian groups.
This particular clash between liberty and equality dates back about 10 years (according to lawyers who follow it.) In 2000, for example, the Christian Fellowship at Tufts University was "de-recognized" by the student government because it barred gay students from leadership posts; the controversy attracted the attention of the press and the Foundation for Individual Rights in Education (FIRE), on whose advisory board I serve, and the group regained its official status after an appeal. Other groups have not been so lucky, and the conflict between anti-discrimination policies and associational rights has ended up in federal court, producing conflicting results from the seventh and 9th circuit courts of appeals, with an appeal to the Supreme Court pending.
In Christian Legal Society v Walker, the 7th circuit granted a preliminary injunction restoring official status to the Christian Legal Society (CLS) at Southern Illinois University School of Law. CLS had been de-certified by the dean because as the court observed, "CLS welcomes anyone to its meetings, but voting members and officers of the organization must subscribe to the statement of faith, meaning, among other things, that they must not engage in or approve of fornication, adultery, or homosexual conduct, or having done so, must repent of that conduct." Stressing that the CLS membership rule explicitly addressed sexual conduct, not sexual orientation (which was explicitly protected by school policy), the majority argued that CLS was not in violation of university affirmative action requirements (or any state or federal law.) The distinction between an exclusion based on sexual conduct and one based on sexual status was a distinction without a difference, the dissent in CLS v Walker argued convincingly; and it helped the majority sidestep the interesting question of whether student groups that do violate formal anti-discrimination policies should be granted official status, which would arguably transform them from purely private to quasi public groups, subject to public rules.
Rejecting the university's justification for de-certifying CLS obviously strengthens the group's countervailing First Amendment rights to exclude people who don't subscribe to its ideals; the grounding of those ideals in religion only enhances CLS's case. The Supreme Court has confirmed the fundamental, private associational right to discriminate; in Dale v Boy Scouts of America, (2000), it upheld the BSA's right to exclude openly gay people. In Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995,) the Court upheld the right of a private group sponsoring the Saint Patrick's day parade to exclude gay marchers. Citing these cases, the majority in CLS v Walker stressed the inextricable connection between membership and message: Requiring CLS to admit members who do not share its views of sexual conduct would clearly "impair its ability" to express those views: "It would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct."
If the relationship between screening group members and expressing a group ideal seems obvious (practically tautological,) the 9th circuit court of appeals still managed to finesse it. In Truth v Kent School District, a three judge panel justified the denial of official status to a high school bible club, Truth, by minimizing the effect of the denial on the club's First Amendment rights and magnifying the effect of the club's exclusionary rules on other students. (Truth is represented by the Alliance Defense Fund, which is seeking Supreme Court review. FIRE has filed an amicus brief in support of Truth's appeal.)
The refusal to recognize Truth was not prompted by any particular policy or belief regarding homosexuality but simply by the club's religious conditions for membership. The court held that club rules, requiring all members to "possess a true desire to ... grow into a relationship with Jesus Christ" and voting members to affirm the Bible as "the only infallible, authoritative word of God," bar non-Christians from joining and violate the District's prohibition on religious discrimination. The ACLU agreed, arguing that Truth engaged in religious discrimination "by requiring students to take a religious test to become members." Actually neither the ACLU nor the court was making an argument so much as stating a fact - which was not dispositive.
Associational rights are contingent on the right to discriminate - to choose the people with whom you wish to associate. Of course Truth was discriminating on the basis of religion - against Christians with different theologies, as well as non-Christians. How else might the group retain its integrity? The court did not explain; but if religious groups can be denied official recognition for practicing religious discrimination against members and leaders, then the Catholic Church could be required to open the priesthood to women and atheists alike - or forfeit its tax exemption.
In addition to constitutional limits on state power to interfere with religious discrimination by religious groups, federal law offers explicit protections to public school students engaged in religious activities. The federal Equal Access Act prohibits school administrators from denying student groups, like Truth, equal access or opportunity based on religion. Naturally Truth claimed that denying it official status violated the Act. The court countered by narrowly interpreting the Act's requirements, holding that the school's refusal to recognize Truth was based on a "content neutral" rule against discriminatory membership requirements and was not directed at the "religious content" of the groups' speech.
Maybe in the abstract the court's reasoning makes sense, to lawyers batting arguments around. But as a practical matter, it seems difficult if not impossible to distinguish between the group's right to choose members who share its religious beliefs and the group's right to express and uphold those beliefs. In Truth v Kent, the 9th circuit trivialized what the 7th circuit stressed in CLS v Walker - the central role of membership criteria in forging the group's message: the membership is the message, at least in part.
The 9th circuit relied on a legal fiction - that "the school is not denying Truth access based solely on its religious viewpoint, but rather on its refusal to comply with the District's non-discrimination policy." It's a fiction that ignores Truth's apparent inability to abide by District policy without violating its religious views.
The harm to a sectarian religious group of conditioning official recognition on a change in its membership rules and message is obvious. How might others be harmed if groups like the Christian Legal Society or Truth were recognized without altering their messages? Students who disagree with Truth that the Bible is the only infallible word of God or who consider CLS's beliefs about sexual conduct intolerant, anachronistic, or utterly unrealistic are free not to seek CLS or Truth membership, which would probably not offer them many like-minded colleagues anyway. But critics of these membership requirements are not content simply to take their business elsewhere; they want to deny the offending clubs official recognition partly because recognition generally entails financial as well as in-kind support and what some consider a symbolic endorsement. As the dissent pointed out in CLS v Walker, "CLS is trying to force an affiliation between itself and a state institution."
Can CLS claim the inviolate rights of a purely private association to discriminate when it seeks to avail itself of public support? The Supreme Court effectively answered that question in the affirmative when it upheld the rights of the Boy Scouts to exclude gay people, despite the public subsidies it enjoyed. But questions about the BSA's right to public support have lingered: Dale was something of a pyrrhic victory for the Scouts, which lost private and public sponsorship in the controversy over its exclusion of gay people; recently, for example, the BSA has been battling an effort by the City of Philadelphia to evict it from public space it has occupied for years.
Questions about public support for exclusionary private groups are even more complicated when they involve sectarian religious activities. In l995, in Rosenberger v University of Virginia, the Supreme Court required a public university to finance a Christian student newspaper engaged in religious proselytizing. The university relied on its policy denying support for all sectarian activities, in the apparent belief that funding the newspaper would violate constitutional strictures against establishing religion. The Court, however, held that not funding the paper was viewpoint discrimination in violation of the group's religious freedom. (In Truth v Walker, the 9th circuit distinguished Rosenberger by holding that denying recognition to the student bible club was not analogous to denying funding for a newspaper and did not constitute viewpoint discrimination.)
If you're confused by these cases and the conflicts between guarantees of private associational or religious rights and prohibitions on publicly supported discrimination or sectarian proselytizing, you can appreciate the challenges they present to the federal courts - and the unavoidable, variable judgment calls that metaphoric "umpires" on the bench are required to make. In my view, both Rosenberger and Truth v Kent were wrongly decided, with Rosenberger requiring unconstitutional state support for sectarian religious activities and Truth v Kent disregarding students' First Amendment religious and associational freedoms. But my view entails value judgments too: I consider the state interest in avoiding entanglement with sectarian religious activities, like publishing a proselytizing newspaper, more compelling than the state interest in imposing its vision of equality on religious groups.
Providing public support to discriminatory groups is legally problematic, of course, but at least in the school club cases, it seems a lesser threat than requiring private associations to abide by popular mandates to diversify, even, or especially at the expense of their religious beliefs. You don't have to be a whiny wing-nut to wonder if the denial of official status to Christian student groups reflects some measure of political correctness: Truth was denied official status partly because of objections to its name, which was insufficiently ecumenical, I guess. And both CLS v Walker and Truth v Kent involved credible claims that school non-discrimination policies had been applied discriminately to Christian student groups and not, for example, to single sex clubs or even other religious groups.
Conservative Christian groups convinced that they tread the one and only path to eternal salvation and liberals insistent that only their notion of diversity advances public welfare on earth obviously diverge ideologically, but they share a mistrust of dissent. What's troubling about the liberal mandate for equality reflected in these cases is the ideological conformity it demands. High school and college administrators who deny Christian groups official recognition engage in the discriminatory conduct they condemn - excluding people who will not pledge allegiance to official views. The difference is that private religious groups have essential First Amendment rights to exclude heretics; public officials have an obligation to protect them.
On college and university campuses and in high schools, Christian student groups risk being denied official school recognition because their religious beliefs conflict with anti-discrimination policies. These controversies often involve groups that bar gay students from qualifying for voting membership or leadership positions if they don't acknowledge the alleged sinfulness of their ways. Liberal advocates of equality applaud the denial of official status to conservative groups deemed hostile to gay people; conservatives and some traditional civil libertarians decry the denial of fundamental associational and religious rights to Christian groups.
This particular clash between liberty and equality dates back about 10 years (according to lawyers who follow it.) In 2000, for example, the Christian Fellowship at Tufts University was "de-recognized" by the student government because it barred gay students from leadership posts; the controversy attracted the attention of the press and the Foundation for Individual Rights in Education (FIRE), on whose advisory board I serve, and the group regained its official status after an appeal. Other groups have not been so lucky, and the conflict between anti-discrimination policies and associational rights has ended up in federal court, producing conflicting results from the seventh and 9th circuit courts of appeals, with an appeal to the Supreme Court pending.
In Christian Legal Society v Walker, the 7th circuit granted a preliminary injunction restoring official status to the Christian Legal Society (CLS) at Southern Illinois University School of Law. CLS had been de-certified by the dean because as the court observed, "CLS welcomes anyone to its meetings, but voting members and officers of the organization must subscribe to the statement of faith, meaning, among other things, that they must not engage in or approve of fornication, adultery, or homosexual conduct, or having done so, must repent of that conduct." Stressing that the CLS membership rule explicitly addressed sexual conduct, not sexual orientation (which was explicitly protected by school policy), the majority argued that CLS was not in violation of university affirmative action requirements (or any state or federal law.) The distinction between an exclusion based on sexual conduct and one based on sexual status was a distinction without a difference, the dissent in CLS v Walker argued convincingly; and it helped the majority sidestep the interesting question of whether student groups that do violate formal anti-discrimination policies should be granted official status, which would arguably transform them from purely private to quasi public groups, subject to public rules.
Rejecting the university's justification for de-certifying CLS obviously strengthens the group's countervailing First Amendment rights to exclude people who don't subscribe to its ideals; the grounding of those ideals in religion only enhances CLS's case. The Supreme Court has confirmed the fundamental, private associational right to discriminate; in Dale v Boy Scouts of America, (2000), it upheld the BSA's right to exclude openly gay people. In Hurley v Irish-American Gay, Lesbian, and Bisexual Group of Boston (1995,) the Court upheld the right of a private group sponsoring the Saint Patrick's day parade to exclude gay marchers. Citing these cases, the majority in CLS v Walker stressed the inextricable connection between membership and message: Requiring CLS to admit members who do not share its views of sexual conduct would clearly "impair its ability" to express those views: "It would be difficult for CLS to sincerely and effectively convey a message of disapproval of certain types of conduct if, at the same time, it must accept members who engage in that conduct."
If the relationship between screening group members and expressing a group ideal seems obvious (practically tautological,) the 9th circuit court of appeals still managed to finesse it. In Truth v Kent School District, a three judge panel justified the denial of official status to a high school bible club, Truth, by minimizing the effect of the denial on the club's First Amendment rights and magnifying the effect of the club's exclusionary rules on other students. (Truth is represented by the Alliance Defense Fund, which is seeking Supreme Court review. FIRE has filed an amicus brief in support of Truth's appeal.)
The refusal to recognize Truth was not prompted by any particular policy or belief regarding homosexuality but simply by the club's religious conditions for membership. The court held that club rules, requiring all members to "possess a true desire to ... grow into a relationship with Jesus Christ" and voting members to affirm the Bible as "the only infallible, authoritative word of God," bar non-Christians from joining and violate the District's prohibition on religious discrimination. The ACLU agreed, arguing that Truth engaged in religious discrimination "by requiring students to take a religious test to become members." Actually neither the ACLU nor the court was making an argument so much as stating a fact - which was not dispositive.
Associational rights are contingent on the right to discriminate - to choose the people with whom you wish to associate. Of course Truth was discriminating on the basis of religion - against Christians with different theologies, as well as non-Christians. How else might the group retain its integrity? The court did not explain; but if religious groups can be denied official recognition for practicing religious discrimination against members and leaders, then the Catholic Church could be required to open the priesthood to women and atheists alike - or forfeit its tax exemption.
In addition to constitutional limits on state power to interfere with religious discrimination by religious groups, federal law offers explicit protections to public school students engaged in religious activities. The federal Equal Access Act prohibits school administrators from denying student groups, like Truth, equal access or opportunity based on religion. Naturally Truth claimed that denying it official status violated the Act. The court countered by narrowly interpreting the Act's requirements, holding that the school's refusal to recognize Truth was based on a "content neutral" rule against discriminatory membership requirements and was not directed at the "religious content" of the groups' speech.
Maybe in the abstract the court's reasoning makes sense, to lawyers batting arguments around. But as a practical matter, it seems difficult if not impossible to distinguish between the group's right to choose members who share its religious beliefs and the group's right to express and uphold those beliefs. In Truth v Kent, the 9th circuit trivialized what the 7th circuit stressed in CLS v Walker - the central role of membership criteria in forging the group's message: the membership is the message, at least in part.
The 9th circuit relied on a legal fiction - that "the school is not denying Truth access based solely on its religious viewpoint, but rather on its refusal to comply with the District's non-discrimination policy." It's a fiction that ignores Truth's apparent inability to abide by District policy without violating its religious views.
The harm to a sectarian religious group of conditioning official recognition on a change in its membership rules and message is obvious. How might others be harmed if groups like the Christian Legal Society or Truth were recognized without altering their messages? Students who disagree with Truth that the Bible is the only infallible word of God or who consider CLS's beliefs about sexual conduct intolerant, anachronistic, or utterly unrealistic are free not to seek CLS or Truth membership, which would probably not offer them many like-minded colleagues anyway. But critics of these membership requirements are not content simply to take their business elsewhere; they want to deny the offending clubs official recognition partly because recognition generally entails financial as well as in-kind support and what some consider a symbolic endorsement. As the dissent pointed out in CLS v Walker, "CLS is trying to force an affiliation between itself and a state institution."
Can CLS claim the inviolate rights of a purely private association to discriminate when it seeks to avail itself of public support? The Supreme Court effectively answered that question in the affirmative when it upheld the rights of the Boy Scouts to exclude gay people, despite the public subsidies it enjoyed. But questions about the BSA's right to public support have lingered: Dale was something of a pyrrhic victory for the Scouts, which lost private and public sponsorship in the controversy over its exclusion of gay people; recently, for example, the BSA has been battling an effort by the City of Philadelphia to evict it from public space it has occupied for years.
Questions about public support for exclusionary private groups are even more complicated when they involve sectarian religious activities. In l995, in Rosenberger v University of Virginia, the Supreme Court required a public university to finance a Christian student newspaper engaged in religious proselytizing. The university relied on its policy denying support for all sectarian activities, in the apparent belief that funding the newspaper would violate constitutional strictures against establishing religion. The Court, however, held that not funding the paper was viewpoint discrimination in violation of the group's religious freedom. (In Truth v Walker, the 9th circuit distinguished Rosenberger by holding that denying recognition to the student bible club was not analogous to denying funding for a newspaper and did not constitute viewpoint discrimination.)
If you're confused by these cases and the conflicts between guarantees of private associational or religious rights and prohibitions on publicly supported discrimination or sectarian proselytizing, you can appreciate the challenges they present to the federal courts - and the unavoidable, variable judgment calls that metaphoric "umpires" on the bench are required to make. In my view, both Rosenberger and Truth v Kent were wrongly decided, with Rosenberger requiring unconstitutional state support for sectarian religious activities and Truth v Kent disregarding students' First Amendment religious and associational freedoms. But my view entails value judgments too: I consider the state interest in avoiding entanglement with sectarian religious activities, like publishing a proselytizing newspaper, more compelling than the state interest in imposing its vision of equality on religious groups.
Providing public support to discriminatory groups is legally problematic, of course, but at least in the school club cases, it seems a lesser threat than requiring private associations to abide by popular mandates to diversify, even, or especially at the expense of their religious beliefs. You don't have to be a whiny wing-nut to wonder if the denial of official status to Christian student groups reflects some measure of political correctness: Truth was denied official status partly because of objections to its name, which was insufficiently ecumenical, I guess. And both CLS v Walker and Truth v Kent involved credible claims that school non-discrimination policies had been applied discriminately to Christian student groups and not, for example, to single sex clubs or even other religious groups.
Conservative Christian groups convinced that they tread the one and only path to eternal salvation and liberals insistent that only their notion of diversity advances public welfare on earth obviously diverge ideologically, but they share a mistrust of dissent. What's troubling about the liberal mandate for equality reflected in these cases is the ideological conformity it demands. High school and college administrators who deny Christian groups official recognition engage in the discriminatory conduct they condemn - excluding people who will not pledge allegiance to official views. The difference is that private religious groups have essential First Amendment rights to exclude heretics; public officials have an obligation to protect them.
06/16/09 1:54 PM
Challenges to DOMA have Only Begun
Gay rights activists outraged by the Obama Administration's disingenuous defense of the Defense of Marriage Act (DOMA) in a pending California case could be vindicated by another challenge to DOMA recently filed by the Boston based, Gay, Lesbian, Advocates & Defenders (GLAD, of which I am a donor.) Gill v Office of Personnel Management mounts a strong equal protection challenge to DOMA's definition of marriage as a union between a man and a woman, as it applies to married, same sex couples in Massachusetts who have been denied the federal benefits and entitlements enjoyed by their married, heterosexual neighbors.
In other words, unlike Smelt v U.S., (the California case,) Gill v OPM is not a facial challenge to DOMA - a claim that the law is unconstitutional on its face. The plaintiffs in Gill are 8 couples and 3 surviving spouses, legally married in Massachusetts, whose applications for marital benefits have been denied under DOMA. On the facts, the Justice Department cannot claim what it claimed in Smelt -- that the plaintiffs have not been denied any actual benefits for which they have applied. On the facts, the Department will also be hard pressed to repeat the ridiculous assertion that DOMA represents "federal neutrality toward a new form of marriage."
As Gary Buseck, GLAD's legal director, explains (and I paraphrase): Massachusetts issues one marriage license to gay and heterosexual couples alike, creating one class of married people. DOMA takes that class and splits it in two, extending a broad array of important rights and benefits to heterosexual couples and denying them to same sex couples.
This denial of equal benefits to gay couples was promulgated in the interests of tax justice, according to the Administration. (Really.) DOMA simply "declines to obligate federal tax-payers in other States to subsidize a form of marriage their own States do not recognize." This suggests that federal taxpayers have a right not to pay for programs and policies that they or their states oppose, which means I'm not the only American due a huge refund.
The Administration's illogical, amateurish defense of DOMA only highlights the many ways in which it's indefensible. Reason defeats any effort to dispute the obvious fact that DOMA singles out gay people for disparate treatment under law. Even a famously nuanced thinker like Obama would have trouble explaining how DOMA's definition of marriage qualifies as neutrality toward gay people or how it ensures fair taxation. As the GLAD press release states:
"DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of "neutrality" ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality."
Gill v OPM was filed in March 2009, and GLAD is awaiting a federal response. Meanwhile, Obama has not retracted his alleged support for DOMA's repeal, which, according to his Justice Department would represent a repeal of federal fairness and neutrality. The fight over DOMA should be interesting.
In other words, unlike Smelt v U.S., (the California case,) Gill v OPM is not a facial challenge to DOMA - a claim that the law is unconstitutional on its face. The plaintiffs in Gill are 8 couples and 3 surviving spouses, legally married in Massachusetts, whose applications for marital benefits have been denied under DOMA. On the facts, the Justice Department cannot claim what it claimed in Smelt -- that the plaintiffs have not been denied any actual benefits for which they have applied. On the facts, the Department will also be hard pressed to repeat the ridiculous assertion that DOMA represents "federal neutrality toward a new form of marriage."
As Gary Buseck, GLAD's legal director, explains (and I paraphrase): Massachusetts issues one marriage license to gay and heterosexual couples alike, creating one class of married people. DOMA takes that class and splits it in two, extending a broad array of important rights and benefits to heterosexual couples and denying them to same sex couples.
This denial of equal benefits to gay couples was promulgated in the interests of tax justice, according to the Administration. (Really.) DOMA simply "declines to obligate federal tax-payers in other States to subsidize a form of marriage their own States do not recognize." This suggests that federal taxpayers have a right not to pay for programs and policies that they or their states oppose, which means I'm not the only American due a huge refund.
The Administration's illogical, amateurish defense of DOMA only highlights the many ways in which it's indefensible. Reason defeats any effort to dispute the obvious fact that DOMA singles out gay people for disparate treatment under law. Even a famously nuanced thinker like Obama would have trouble explaining how DOMA's definition of marriage qualifies as neutrality toward gay people or how it ensures fair taxation. As the GLAD press release states:
"DOMA wrongly bars the federal government from providing any of the over one thousand federal protections to the many thousands of couples who marry in six states. This notion of "neutrality" ignores the fact that while married same-sex couples pay their full share of income and social security taxes, they are prevented by DOMA from receiving the corresponding same benefits that married heterosexual taxpayers receive. It is the married same-sex couples, not heterosexuals in other parts of the country, who are financially and personally damaged in significant ways by DOMA. For the Obama administration to suggest otherwise simply departs from both mathematical and legal reality."
Gill v OPM was filed in March 2009, and GLAD is awaiting a federal response. Meanwhile, Obama has not retracted his alleged support for DOMA's repeal, which, according to his Justice Department would represent a repeal of federal fairness and neutrality. The fight over DOMA should be interesting.
This is obviously not the best time to defend the right to engage in hate speech. The murders of George Tiller in Kansas and Stephen Johns at the Holocaust museum and fear of more ideologically inspired killing is enough to raise concern about extremist rhetoric even among people who defend its legality. How can free speech advocates condemn inflammatory anti-abortion rhetoric and racist, anti-Semitic diatribes? Very carefully, with an understanding of the discretion required to denounce what people say without undermining their rights to say it.
"Extreme, overheated rhetoric can have dangerous consequences," Michael B. Keegan, interim president of People for the American Way asserts in a June 8th email alert. PFAW does not advocate censorship (it has a strong civil liberties record,) and Keegan dutifully notes that "Freedom of speech is one of our most cherished constitutional values and rights -- and should always be protected." Then comes the "but," ---"just because speech might be constitutionally protected does not make it right or decent," Keegan adds, immediately qualifying his commitment to free speech: the "overheated rhetoric" he is about to condemn "might" be constitutionally protected, meaning that it might also be unprotected. He continues: "There can be little doubt that the irresponsible, inflammatory, dehumanizing and violent speech of some around the abortion debate -- much of it targeted at Dr. Tiller himself -- contributed to this tragedy. The reaction to the assassination by some of these same people has been pretty shocking." Keegan then offers examples of the "fear mongering and hate that drive people inclined towards violence to take action."
So in a relatively lengthy email devoted to exposing the "dangerous consequences" of "overheated," far right rhetoric, Keegan includes one brief sentence defending freedom of speech. Given PFAW's record, I assume that he doesn't intend to condone censorship, but his impassioned certainty that "dehumanizing and violent speech" contributes to murder is probably more persuasive than his qualified acknowledgement of the right to indulge in it.
Still compared to other critics of right-wing hate speech, Keegan might pass for a First Amendment absolutist: In a post at the Daily Kos, assailing Bill O'Reilly for his "jihad" against George Tiller, Jed Lewison notes, "you don't have to actually pull the trigger to help sponsor terrorism." That is the logic of the Patriot Act. Meanwhile, a June 12th, weekly email report from Media Matters decries O'Reilly's "long history of inciting violence against Dr. George Tiller."
Actually inciting violence is not protected speech, as journalists presumably expert in "media matters" should know. Advocacy of violence may be prohibited when it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action," the Supreme Court ruled in the landmark 1969 case of Brandenburg v Ohio. But, as the people at Media Matters should also know, Bill O'Reilly's rants, however loathsome, do not constitute incitement to violence under Brandenburg. In fact, Brandenburg struck down the conviction of a Ku Klux Klan leader prosecuted for racist, anti-Semitic rabble-rousing pursuant to a "criminal syndicalism" statute that prohibited advocating violence. The Court invalidated the statute, citing its ban on "mere advocacy," in an important victory for free speech - a victory that protects O'Reilly and his cohort today, as it protected Klan leaders 40 years ago.
It should be needless to add that this ruling also protects activists, advocates, and provocateurs on the left, whose rhetoric is apt to be labeled dangerous or subversive by their opponents on the right, who are, after all, occasionally in power. Criminal syndicalism statutes like the one struck down in Brandenburg were used to prosecute communist party members and suspected sympathizers during 20th century red scares. But if you expect liberals and progressives - especially those who talk for a living -- to be especially sensitive to the dangers of casually equating speech with violence, you're apt to be disappointed: "Words can kill" was the caption under George Tiller's picture during a segment of MSNBC's the Ed Show, with Ed Schultz.
"Words wound," anti-pornography feminists used to say (and perhaps still do.) They were not simply speaking metaphorically. (Years ago, I debated a rabid anti-porn crusader who compared the production of pornography to the manufacture of unsafe cars and dismissed First Amendment rights as "red herrings," in the debate about controlling it.) To anti-porn feminists, pornography was not just incitement to violence; pornography was violence. They failed in their efforts to define and regulate it as a civil rights violation but succeeded in fashioning "progressive" arguments for censorship that infect today's debates about hate speech (so broadly and variably defined.)
I hope it's obvious that I'm not excusing vicious and maniacal, extremist rhetoric or denying that it constitutes a problem. But it is not a problem we should invite the law to solve, or try to alleviate, unlike, perhaps, the problem of guns.
"Extreme, overheated rhetoric can have dangerous consequences," Michael B. Keegan, interim president of People for the American Way asserts in a June 8th email alert. PFAW does not advocate censorship (it has a strong civil liberties record,) and Keegan dutifully notes that "Freedom of speech is one of our most cherished constitutional values and rights -- and should always be protected." Then comes the "but," ---"just because speech might be constitutionally protected does not make it right or decent," Keegan adds, immediately qualifying his commitment to free speech: the "overheated rhetoric" he is about to condemn "might" be constitutionally protected, meaning that it might also be unprotected. He continues: "There can be little doubt that the irresponsible, inflammatory, dehumanizing and violent speech of some around the abortion debate -- much of it targeted at Dr. Tiller himself -- contributed to this tragedy. The reaction to the assassination by some of these same people has been pretty shocking." Keegan then offers examples of the "fear mongering and hate that drive people inclined towards violence to take action."
So in a relatively lengthy email devoted to exposing the "dangerous consequences" of "overheated," far right rhetoric, Keegan includes one brief sentence defending freedom of speech. Given PFAW's record, I assume that he doesn't intend to condone censorship, but his impassioned certainty that "dehumanizing and violent speech" contributes to murder is probably more persuasive than his qualified acknowledgement of the right to indulge in it.
Still compared to other critics of right-wing hate speech, Keegan might pass for a First Amendment absolutist: In a post at the Daily Kos, assailing Bill O'Reilly for his "jihad" against George Tiller, Jed Lewison notes, "you don't have to actually pull the trigger to help sponsor terrorism." That is the logic of the Patriot Act. Meanwhile, a June 12th, weekly email report from Media Matters decries O'Reilly's "long history of inciting violence against Dr. George Tiller."
Actually inciting violence is not protected speech, as journalists presumably expert in "media matters" should know. Advocacy of violence may be prohibited when it is "directed to inciting or producing imminent lawless action and is likely to incite or produce such action," the Supreme Court ruled in the landmark 1969 case of Brandenburg v Ohio. But, as the people at Media Matters should also know, Bill O'Reilly's rants, however loathsome, do not constitute incitement to violence under Brandenburg. In fact, Brandenburg struck down the conviction of a Ku Klux Klan leader prosecuted for racist, anti-Semitic rabble-rousing pursuant to a "criminal syndicalism" statute that prohibited advocating violence. The Court invalidated the statute, citing its ban on "mere advocacy," in an important victory for free speech - a victory that protects O'Reilly and his cohort today, as it protected Klan leaders 40 years ago.
It should be needless to add that this ruling also protects activists, advocates, and provocateurs on the left, whose rhetoric is apt to be labeled dangerous or subversive by their opponents on the right, who are, after all, occasionally in power. Criminal syndicalism statutes like the one struck down in Brandenburg were used to prosecute communist party members and suspected sympathizers during 20th century red scares. But if you expect liberals and progressives - especially those who talk for a living -- to be especially sensitive to the dangers of casually equating speech with violence, you're apt to be disappointed: "Words can kill" was the caption under George Tiller's picture during a segment of MSNBC's the Ed Show, with Ed Schultz.
"Words wound," anti-pornography feminists used to say (and perhaps still do.) They were not simply speaking metaphorically. (Years ago, I debated a rabid anti-porn crusader who compared the production of pornography to the manufacture of unsafe cars and dismissed First Amendment rights as "red herrings," in the debate about controlling it.) To anti-porn feminists, pornography was not just incitement to violence; pornography was violence. They failed in their efforts to define and regulate it as a civil rights violation but succeeded in fashioning "progressive" arguments for censorship that infect today's debates about hate speech (so broadly and variably defined.)
I hope it's obvious that I'm not excusing vicious and maniacal, extremist rhetoric or denying that it constitutes a problem. But it is not a problem we should invite the law to solve, or try to alleviate, unlike, perhaps, the problem of guns.
06/11/09 2:06 PM
Pleading Guilty at Guantanamo/Response to the ACLU
The ACLU's furious comments on my June 8th post about proceedings at Guantanamo refute an argument for allowing guilty pleas in capital cases that I did not make. In fact, I share Denny LeBoeuf's evident abhorrence of a system that accepts guilty pleas from defendants after summarily detaining and torturing them, as I share her abhorrence of the death penalty in general.
But I do think that cases like this present obvious quandries for defense attorneys, and I'm a little surprised by the rage I provoked in raising them. As my friend, veteran criminal defense attorney Harvey Silverglate remarks, lawyers are bound to act in their client's best interests, which are normally determined by the client: "But when the lawyer has reason to believe that the client is not compos mentis (e.g., is clinically insane or has been driven to distraction by years of torture or isolation), or is otherwise not free to decide what is in his best interests (e.g., the client is being threatened by someone), then the lawyer is in the middle of a conundrum: Should the lawyer take the client at face value and follow the client's instructions, or should the lawyer, adjusting for the client's inability to assess and communicate his best interests, substitute his judgment for that of the client (and resign if the client insists)? Lawyers will disagree as to how to proceed."
I regard as equally uncontroversial my opinion that defense attorneys directly representing detainees are primarily bound to serve the detainees' interests, not the public interest in learning what a trial might reveal about the 9/11 attack or the government's use of torture. I disagree with LeBoeuf that advocacy of this public interest in trials for alleged 9/ll co-conspirators is so easily reconciled with advocacy in the interest of detainees.
I don't doubt LeBoeuf's integrity or her commitment to her clients, but in arguing for "our interest as a society" in trials as opposed to pleas for detainees, I do think her remarks to the New York Times inadvertently illustrate the dilemma sometimes facing advocacy groups that engage in direct representation of clients. On occasion, the client's interest may demand that his or her lawyers present arguments or adopt tactics that conflict with group's ideals. (I recall an attorney at a committee meeting of the ACLU of Massachusetts arguing against ACLU representation of a controversial client because if his case went to trial, his most effective defense might be one that the ACLU would be loathe to mount.)
So I repeat: the interests of our society in trials and the interests of Guantanamo detainees may diverge. Indeed, after spending years in detention and suffering torture, I wouldn't be surprised if at least some of the detainees, whether innocent or guilty, would agree.
But I do think that cases like this present obvious quandries for defense attorneys, and I'm a little surprised by the rage I provoked in raising them. As my friend, veteran criminal defense attorney Harvey Silverglate remarks, lawyers are bound to act in their client's best interests, which are normally determined by the client: "But when the lawyer has reason to believe that the client is not compos mentis (e.g., is clinically insane or has been driven to distraction by years of torture or isolation), or is otherwise not free to decide what is in his best interests (e.g., the client is being threatened by someone), then the lawyer is in the middle of a conundrum: Should the lawyer take the client at face value and follow the client's instructions, or should the lawyer, adjusting for the client's inability to assess and communicate his best interests, substitute his judgment for that of the client (and resign if the client insists)? Lawyers will disagree as to how to proceed."
I regard as equally uncontroversial my opinion that defense attorneys directly representing detainees are primarily bound to serve the detainees' interests, not the public interest in learning what a trial might reveal about the 9/11 attack or the government's use of torture. I disagree with LeBoeuf that advocacy of this public interest in trials for alleged 9/ll co-conspirators is so easily reconciled with advocacy in the interest of detainees.
I don't doubt LeBoeuf's integrity or her commitment to her clients, but in arguing for "our interest as a society" in trials as opposed to pleas for detainees, I do think her remarks to the New York Times inadvertently illustrate the dilemma sometimes facing advocacy groups that engage in direct representation of clients. On occasion, the client's interest may demand that his or her lawyers present arguments or adopt tactics that conflict with group's ideals. (I recall an attorney at a committee meeting of the ACLU of Massachusetts arguing against ACLU representation of a controversial client because if his case went to trial, his most effective defense might be one that the ACLU would be loathe to mount.)
So I repeat: the interests of our society in trials and the interests of Guantanamo detainees may diverge. Indeed, after spending years in detention and suffering torture, I wouldn't be surprised if at least some of the detainees, whether innocent or guilty, would agree.
Should Guantanamo detainees facing the death penalty for their alleged roles in the 9/11 attack be allowed to plead guilty without ever going to trial? I suspect that a strong majority of Americans would say "yes," with little hesitation; an Administration proposal to allow pleas in these cases (reported by the New York Times) seems likely to encounter opposition primarily from human rights advocates, law professors not occupying the White House, and defense attorneys concerned with the voluntary nature of guilty pleas obtained after torture and years of extra-judicial detention, as well as with the legal and moral propriety of allowing guilty pleas in capital, military commission cases. (Advocates of assisted suicide might also wonder why alleged 9/11 terrorists should effectively enjoy rights generally denied to the law-abiding, terminally ill.)
The detainees themselves, however, have reportedly indicated their desires to plead guilty, raising awkward questions for attorneys involved in representing or assisting them. Should they advocate for their clients' prerogatives to engage in what is probably the only act of self-determination left to them - pleading guilty in a quest for execution and martyrdom? Or should Guantanamo detainees who have suffered torture and prolonged imprisonment be considered effectively incompetent to plead? In these cases, are the rights of the accused to determine their own fates merely cynical excuses for the government to avoid the demands of due process, more exposure of "enhanced interrogations," and the trouble of a trial?
Are there other considerations for attorneys counseling the detainees? ACLU lawyer Denny LeBoeuf suggested to the Times that the public interest requires that the detainees be tried, not summarily convicted on the basis of pleas. "'Don't we have an interest as a society,' Ms. LeBoeuf asked, 'in a trial that examines the evidence and provides some reliable picture of what went on?' "
Defense attorneys, however, don't represent society (that's the prosecutor's job); they represent their clients, obviously. For counsel to the detainees, the public interest in learning whatever a trial might reveal about 9/11 and our government's use of torture against the alleged conspirators is secondary, at best, as LeBoeuf understands better than I; she's a dedicated, experienced capital defense attorney (whom I've known for years.) So, in advocating for the public interest, LeBoeuf doesn't seem to be advocating for the detainees.
But she's also director of the ACLU's John Adams Project, established in 2008 and promoted in fund-raising appeals as a groundbreaking initiative to provide defense counsel for these "high value" detainees charged in the 9/11 attack. LeBoeuf's remark and her vague identification in the Times as an ACLU lawyer "who works on Guantanamo death penalty issues," suggests that the John Adams Project is not, in fact, involved in representing the alleged 9/11 conspirators (unless perhaps the ACLU has a retainer agreement with detainees specifying that its notion of the public interest could govern the representation, which I doubt.) The ACLU website states that the John Adams Project "has worked with under-resourced military lawyers to provide legal counsel for several of the Guantánamo detainees," raising questions about whether the ACLU "is working" to assist in their defense and how attorneys might represent simultaneously the public's interest and the interests of the detainees.
The detainees themselves, however, have reportedly indicated their desires to plead guilty, raising awkward questions for attorneys involved in representing or assisting them. Should they advocate for their clients' prerogatives to engage in what is probably the only act of self-determination left to them - pleading guilty in a quest for execution and martyrdom? Or should Guantanamo detainees who have suffered torture and prolonged imprisonment be considered effectively incompetent to plead? In these cases, are the rights of the accused to determine their own fates merely cynical excuses for the government to avoid the demands of due process, more exposure of "enhanced interrogations," and the trouble of a trial?
Are there other considerations for attorneys counseling the detainees? ACLU lawyer Denny LeBoeuf suggested to the Times that the public interest requires that the detainees be tried, not summarily convicted on the basis of pleas. "'Don't we have an interest as a society,' Ms. LeBoeuf asked, 'in a trial that examines the evidence and provides some reliable picture of what went on?' "
Defense attorneys, however, don't represent society (that's the prosecutor's job); they represent their clients, obviously. For counsel to the detainees, the public interest in learning whatever a trial might reveal about 9/11 and our government's use of torture against the alleged conspirators is secondary, at best, as LeBoeuf understands better than I; she's a dedicated, experienced capital defense attorney (whom I've known for years.) So, in advocating for the public interest, LeBoeuf doesn't seem to be advocating for the detainees.
But she's also director of the ACLU's John Adams Project, established in 2008 and promoted in fund-raising appeals as a groundbreaking initiative to provide defense counsel for these "high value" detainees charged in the 9/11 attack. LeBoeuf's remark and her vague identification in the Times as an ACLU lawyer "who works on Guantanamo death penalty issues," suggests that the John Adams Project is not, in fact, involved in representing the alleged 9/11 conspirators (unless perhaps the ACLU has a retainer agreement with detainees specifying that its notion of the public interest could govern the representation, which I doubt.) The ACLU website states that the John Adams Project "has worked with under-resourced military lawyers to provide legal counsel for several of the Guantánamo detainees," raising questions about whether the ACLU "is working" to assist in their defense and how attorneys might represent simultaneously the public's interest and the interests of the detainees.
Sonia Sotomayor has received the unofficial endorsement of the ACLU, but not on the basis of her record on rights and liberties. Citing her personal story and Puerto Rican descent, ACLU Executive Director Anthony Romero celebrated Sotomayor's nomination in a blog on the ACLU website (and the Huffington Post.) "My heart swelled with such pride" when he heard of her nomination, Romero gushed, because he is also Puerto Rican and shares a "similar 'pedigree' of sorts" with Judge Sotomayor.
The ACLU does not officially endorse judicial nominees, as Romero noted, (while stressing his "veneration" for Sotomayor in an official post;) and the organization will issue a report on her record, which is mixed: In Doninger v Niehoff, a case of great concern to free speech advocates, Sotomayor joined in a decision upholding the power of school administrators to punish students for postings on their personal blogs. (I've written about the case here.) She is reportedly a fierce proponent of campaign finance restrictions, which the ACLU and other free speech advocates oppose. And as Emily Bazelon reported at Slate, she persuaded her colleagues to reverse a jury verdict in a case involving apparently abusive police conduct. But, in the meantime, as we await a comprehensive civil liberties report on Sotomayor, the ACLU executive director's tribute to her, devoid of any caveats or even curiosity about her record, illustrates the problem of identity politics that may continue to dog, although not deter, her confirmation.
The ACLU does not officially endorse judicial nominees, as Romero noted, (while stressing his "veneration" for Sotomayor in an official post;) and the organization will issue a report on her record, which is mixed: In Doninger v Niehoff, a case of great concern to free speech advocates, Sotomayor joined in a decision upholding the power of school administrators to punish students for postings on their personal blogs. (I've written about the case here.) She is reportedly a fierce proponent of campaign finance restrictions, which the ACLU and other free speech advocates oppose. And as Emily Bazelon reported at Slate, she persuaded her colleagues to reverse a jury verdict in a case involving apparently abusive police conduct. But, in the meantime, as we await a comprehensive civil liberties report on Sotomayor, the ACLU executive director's tribute to her, devoid of any caveats or even curiosity about her record, illustrates the problem of identity politics that may continue to dog, although not deter, her confirmation.
06/03/09 12:40 PM
Angels and Demons
When I say that Operation Rescue founder Randall Terry demonizes abortion providers, I'm not speaking metaphorically. "George Tiller was a murderer and he was doing something that was literally demonic," Terry explained on NPR's Morning Edition. "So how can you not demonize something that is intrinsically evil."
You can condemn Terry's remark as hate speech (and many will,) but I prefer not equating it with the absurdly broad assortment of criticisms, petty insults, arguments, jokes, and political talking points that are so often labeled hateful in a culture where people revel in taking offence -- and finding excuses for censorship. Instead, I'd dismiss the declaration that abortion providers are "literally demonic" as an expression of moral idiocy.
I'm not belittling a belief in demons or angels. (I don't associate faith in supernatural beings with stupidity or lack of faith with intelligence, as some of my irreligious colleagues do.) I'm not belittling moral opposition to abortion based on a belief in the sanctity of unborn or potential human life. I am belittling as utterly impervious to moral reasoning the absolute certainty that only a purely evil person would perform an abortion, at any point in a woman's pregnancy. (Anti-abortion extremists like Terry don't generally distinguish between the morality of early abortions and rare, late term procedures that George Tiller risked and lost his life to provide; but directed only against providers of late abortions, Terry's remark would still be idiotic.)
It would be gratifying to hear movement leaders and rabble rousers like Bill O'Reilly publicly condemn or at least convincingly disdain violent, "pro-life" extremism before rather than after the murder of an abortion provider. Still it's probably not fair to portray Terry as emblematic of their movement; his pronouncements make many anti-abortion advocates cringe (even if they've never heard him sing.) Indeed, many people opposed to abortion don't seem to equate the killing of a 3 month old fetus with the killing of a 3 year old child, except perhaps in theory. We can surely infer that much from the hesitancy even to propose that women who obtain abortions be prosecuted for murder. And, people who hold different views about the morality of abortion still seem to share common tendencies to mourn the natural death of an already born child much more intensely and for much longer periods (forever, perhaps) than the natural death of a fetus. Our language itself is revealing of differences in the way we value, in principle, and cherish, in practice, the born and unborn. Children die; fetuses suffer miscarriages, or, rather, expectant mothers do.
The special moral complications of killing a fetus are also obviously reflected in the legal complications of abortion prohibitions: relatively common exceptions for abortions in cases of rape or incest or when the life of the mother is imperiled are impossible to imagine as exceptions to the killing of children. Of course, the most rabid anti-abortion advocates don't support these or other exceptions, but a majority of Americans believe abortion should be legal under some circumstances (even according to a recent Gallup Poll that found a slight majority of respondents calling themselves pro-life.) If terminating a pregnancy, or murdering a fetus, is "literally demonic," than even self-identified pro-life Americans are, literally, a little possessed.
You can condemn Terry's remark as hate speech (and many will,) but I prefer not equating it with the absurdly broad assortment of criticisms, petty insults, arguments, jokes, and political talking points that are so often labeled hateful in a culture where people revel in taking offence -- and finding excuses for censorship. Instead, I'd dismiss the declaration that abortion providers are "literally demonic" as an expression of moral idiocy.
I'm not belittling a belief in demons or angels. (I don't associate faith in supernatural beings with stupidity or lack of faith with intelligence, as some of my irreligious colleagues do.) I'm not belittling moral opposition to abortion based on a belief in the sanctity of unborn or potential human life. I am belittling as utterly impervious to moral reasoning the absolute certainty that only a purely evil person would perform an abortion, at any point in a woman's pregnancy. (Anti-abortion extremists like Terry don't generally distinguish between the morality of early abortions and rare, late term procedures that George Tiller risked and lost his life to provide; but directed only against providers of late abortions, Terry's remark would still be idiotic.)
It would be gratifying to hear movement leaders and rabble rousers like Bill O'Reilly publicly condemn or at least convincingly disdain violent, "pro-life" extremism before rather than after the murder of an abortion provider. Still it's probably not fair to portray Terry as emblematic of their movement; his pronouncements make many anti-abortion advocates cringe (even if they've never heard him sing.) Indeed, many people opposed to abortion don't seem to equate the killing of a 3 month old fetus with the killing of a 3 year old child, except perhaps in theory. We can surely infer that much from the hesitancy even to propose that women who obtain abortions be prosecuted for murder. And, people who hold different views about the morality of abortion still seem to share common tendencies to mourn the natural death of an already born child much more intensely and for much longer periods (forever, perhaps) than the natural death of a fetus. Our language itself is revealing of differences in the way we value, in principle, and cherish, in practice, the born and unborn. Children die; fetuses suffer miscarriages, or, rather, expectant mothers do.
The special moral complications of killing a fetus are also obviously reflected in the legal complications of abortion prohibitions: relatively common exceptions for abortions in cases of rape or incest or when the life of the mother is imperiled are impossible to imagine as exceptions to the killing of children. Of course, the most rabid anti-abortion advocates don't support these or other exceptions, but a majority of Americans believe abortion should be legal under some circumstances (even according to a recent Gallup Poll that found a slight majority of respondents calling themselves pro-life.) If terminating a pregnancy, or murdering a fetus, is "literally demonic," than even self-identified pro-life Americans are, literally, a little possessed.
06/01/09 2:07 PM
Credentialism
Karl Rove should be forgiven for countering assumptions about Sonia Sotomayor's intelligence by claiming to know "lots of stupid people who went to Ivy League schools." When Rove entered college in the late 1960's, stupidity was not necessarily a bar to an Ivy League diploma. Admission was, in no small part, a function of social class, and schools maintained stringent exclusionary quotes for women and déclassé minorities, along with exceedingly generous affirmative action programs for white males, especially the children of alumni.
Lots of people who graduated from the Ivy League in Rove's day (and mine) would probably not be admitted today. I don't know if students who gain admission and garner honors in elite schools these days are smarter than their counterparts 30 years ago, but I'm pretty sure they're more accomplished. So much more is required of them.
Still, academic achievement only measures academic ability - not judgment, fairness, or honesty, obviously. People who excel in highly competitive academic environments are not likely to be "stupid," at least not in the ordinary sense of the word, but they may be foolish, self-serving, arrogant, abusive, and utterly untrustworthy. The complicity of so many presumptively smart, well-educated people in wrecking the financial system should surely make us wary of credentialism.
But it seems to have lost none of its power, especially in the legal profession or the Obama administration. Would the president choose a Supreme Court nominee who graduated from an obscure, third tier law school? Not likely. Graduates from lower ranked schools probably need not apply for prestigious clerkships either, as New York Times legal reporter Adam Liptak recently observed, quoting Justice Scalia: "By and large, I'm going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can't make a sow's ear out of a silk purse. If they come in the best and the brightest, they're probably going to leave the best and the brightest, O.K.?"
The best and the brightest? Scalia is old enough to remember that the late David Halberstam used that phrase ironically to describe the presumptively brilliant Ivy Leaguers of the Kennedy Administration responsible for the disastrous Vietnam War. But he's not alone in his naiveté. As Frank Rich observed months ago, people who should have known better repeatedly praised Obama's advisers and cabinet members as the best and the brightest, with no sense of history, much less skepticism.
Not that you need familiarity with 20th century history to appreciate the dangerous deceptiveness of the halo effect conferred by prestigious degrees and reputations. You need only consider the Madoff debacle and apparent, gross failures of due diligence by supposedly savvy, sophisticated investors, like Walter Noel, whose Fairfield Greenwich Group was Madoff's largest feeder. Describe Noel's strengths, Frontline recently asked a former FGG sales assistant: "He had a degree from Vanderbilt University [in Nashville], and then he got his J.D. from Harvard ...His strengths are that he was very presentable..." Ezra Merkin, who reportedly fed $2.4 billion to Madoff, for nearly $500 million in fees, is a Columbia College and Harvard Law School graduate. Of course, Merkin and Noel may have assiduously avoided exercising diligence (their failures may well have been ethical, not intellectual) but whether victims or accomplices, their ability to attract the money they channeled to Madoff can only have been enhanced by their credentials. Sometimes an Ivy League degree is just a pretty face, and sometimes there's a portrait in the attic.
Lots of people who graduated from the Ivy League in Rove's day (and mine) would probably not be admitted today. I don't know if students who gain admission and garner honors in elite schools these days are smarter than their counterparts 30 years ago, but I'm pretty sure they're more accomplished. So much more is required of them.
Still, academic achievement only measures academic ability - not judgment, fairness, or honesty, obviously. People who excel in highly competitive academic environments are not likely to be "stupid," at least not in the ordinary sense of the word, but they may be foolish, self-serving, arrogant, abusive, and utterly untrustworthy. The complicity of so many presumptively smart, well-educated people in wrecking the financial system should surely make us wary of credentialism.
But it seems to have lost none of its power, especially in the legal profession or the Obama administration. Would the president choose a Supreme Court nominee who graduated from an obscure, third tier law school? Not likely. Graduates from lower ranked schools probably need not apply for prestigious clerkships either, as New York Times legal reporter Adam Liptak recently observed, quoting Justice Scalia: "By and large, I'm going to be picking from the law schools that basically are the hardest to get into. They admit the best and the brightest, and they may not teach very well, but you can't make a sow's ear out of a silk purse. If they come in the best and the brightest, they're probably going to leave the best and the brightest, O.K.?"
The best and the brightest? Scalia is old enough to remember that the late David Halberstam used that phrase ironically to describe the presumptively brilliant Ivy Leaguers of the Kennedy Administration responsible for the disastrous Vietnam War. But he's not alone in his naiveté. As Frank Rich observed months ago, people who should have known better repeatedly praised Obama's advisers and cabinet members as the best and the brightest, with no sense of history, much less skepticism.
Not that you need familiarity with 20th century history to appreciate the dangerous deceptiveness of the halo effect conferred by prestigious degrees and reputations. You need only consider the Madoff debacle and apparent, gross failures of due diligence by supposedly savvy, sophisticated investors, like Walter Noel, whose Fairfield Greenwich Group was Madoff's largest feeder. Describe Noel's strengths, Frontline recently asked a former FGG sales assistant: "He had a degree from Vanderbilt University [in Nashville], and then he got his J.D. from Harvard ...His strengths are that he was very presentable..." Ezra Merkin, who reportedly fed $2.4 billion to Madoff, for nearly $500 million in fees, is a Columbia College and Harvard Law School graduate. Of course, Merkin and Noel may have assiduously avoided exercising diligence (their failures may well have been ethical, not intellectual) but whether victims or accomplices, their ability to attract the money they channeled to Madoff can only have been enhanced by their credentials. Sometimes an Ivy League degree is just a pretty face, and sometimes there's a portrait in the attic.
