The Invaluable Snopes.com

My first reaction to George Will’s column in this morning’s Indianapolis Star was something along the lines of “George, you like to posture as a sophisticated, world-weary intellectual—and you’ve been taken in by another urban legend!”

 

The gist of Will’s complaint was that pro-gay political correctness was turning opinions into “hate speech.” Now, I’m no fan of laws against hate speech. In a free country, everyone is entitled to his/her opinions, and entitled to express them, no matter how stupid, scurrilous or unwise I might think those opinions are. But Will had his facts wrong. Worse, he was more or less parrotting part of an “Action Alert” issued by the notorously anti-factual American Family Association.

 

Which is where the invaluable Snopes.com comes in.  www.snopes.com/politics/sexuality/hatecrime.asp 

 

Snopes sets out the entire “Action Alert,” which purports to describe the pending Hate Crimes Prevention Act as a measure that “would make it a hate crime for pastors and churches to speak out against homosexuality.” The “Alert” references the same California lawsuit described by Will in his (equally inaccurate) column, as well as other “evidence” of increasing “censorship” of religious speech.

 

Snopes characterizes the AFA’s descriptions—politely—as “gross and misleading distortions.”

 

The case that both Will and the AFA mischaracterized involved a woman who complained about anti-gay materials posted on the bulletin board at her place of work. The employer removed it, and the person who posted it sued, saying his free speech rights had been violated. The court dismissed the complaint and upheld the right of an employer to remove materials in the workplace that cause dissention among employees or distract from the work environment.

 

The AFA clearly depends upon a widespread constitutional ignorance

among those who receive its “Alerts.” Anyone with even a passing familiarity with constitutional principles would see right through this one. The First Amendment’s Free Exercise Clause absolutely protects religious speech and belief—against government suppression. The Bill of Rights is a list of things that government cannot do.

 

As I used to tell my children, the government can’t tell you what not to say—but your mother sure can. And so can your employer.

 

Next time, George, check Snopes.

 

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Alternate Universe Cheney

Amazing. In his most recent bid to avoid anything remotely similar to accountability, Dick Cheney has taken the position that the Vice-President of the United States is not part of the Executive Branch.

 

That sound you hear is generations of Constitutional law professors dropping their teeth.

 

A bit of backgound: The National Archives oversees classified documents. An Executive Order requires that all members of the Executive Branch who are entitled to see such documents cooperate with the National Archives to ensure that sensitive materials are protected. For the past four years, Cheney has simply refused to comply. When the folks at the National Archives appealed to the Justice Department (the proper channel, however futile an appeal to Alberto Gonzales is likely to be), Cheney simply claimed that this law—like so many others—doesn’t apply to him, because he is not part of the executive branch.

 

As Maureen Dowd mused in the Sunday New York Times, “Even in my harshest musings about the vice-president, I never imagined that he would declare himself not only above the law, not only above the president, but actually his own dark planet—a separate entity from the White House.”

 

As other commentators have noted, this position raises some fascinating questions, among them why, if Cheney isn’t a member of the Executive Branch, he keeps claiming Executive privilege.

 

Or why, since the clear language of the Executive Order applies to anyone “entitled to receive classified documents,” it even matters, for purposes of the rule’s application, what he calls himself.

 

As Representative Rahm Emanuel recently stated, announcing legislation to remove the Vice-President’s office from an upcoming funding bill,  “The Vice President has a choice to make. If he believes his legal case, his office has no business being funded as part of the executive branch. If he demands executive branch funding, he cannot ignore executive branch rules.”

 

This bizarre episode would be funny if it didn’t point up a tragic truth: this is an Administration that does not adhere to nor operate under the most fundamental American value—the value of the rule of law.

 

From Abu Ghraib to Valerie Plame, from signing statements to Guantanamo, from the blatant politicization of the Justice Department to the recent revelations about FBI lawbreaking, Bush and Cheney persist in operating under their widely discredited, incoherent and self-serving theory of a powerful “unitary executive.” As a result, we are losing precious safeguards against government malfeasance that generations of Americans have fought and died to protect.

 

Maybe that sound isn’t Con Law professors’ teeth dropping. Maybe it is the sound of the nation’s Founders, spinning in their graves.

 

 

 

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Pride and Progess

In Indiana and much of America’s Midwest, June was Pride month.

In Indianapolis, where I live, Pride celebrations have grown and matured each year. Twenty years ago, when I first started attending, they were the subject of snickering coverage by the local media. Attendance was small and largely consisted of guys in leather harnesses. Not, I hasten to add, that there is anything wrong with that, but the attendees certainly did not represent the full diversity of the gay community. These days, Pride still draws the leather crowd, but it also has a full complement of couples pushing strollers, preppy guys in penny loafers, elected officials, and businesses trying to sell everything from real estate to insurance. Pride events are listed matter-of-factly in the local paper’s listing of festivals, and covered just like other civic celebrations.

Progress on gay rights has certainly been spotty, and we’ve seen setbacks, but I think the growth—and growing acceptance—of Pride festivals is one sign among many that Americans are gradually becoming more comfortable with their gay neighbors, and less likely to support discrimination.

The culture is changing. Not as quickly as in other western democracies, perhaps, but much more quickly than in Asia, where I just spent a month traveling. There were six of us on the trip—me, my husband, his cousin and her husband, my (gay) son and a friend who is also gay.

We met my son in New Delhi, since he has been traveling in India this year, and then went to Bhutan—a picture-perfect Shangra-La in the Himalayas that has only opened to visitors recently. The government of Bhutan requires tourists to use their official tour guides, and ours was very nice. (If my gay-dar was working, he was also a “member of the family.” But that’s speculative.) While we were there, Bhutan had an AIDS Awareness Day, and I asked our guide about the situation faced by the gay community—was there acceptance, rejection, etc.? His answer? “Bhutan has no gay people. Bhutanese aren’t gay.”

I guess that answered my question! 

Bhutan was a real contrast to Kathmandu, our next stop, where there were posters everywhere announcing an upcoming gay and lesbian film festival, and where the atmosphere was decidedly more cosmopolitan and open. But it was in China that the influence of culture was most pronounced—and repressive. In each city we visited, my son would locate a local gay club or bar. His conversations with people he met in those clubs were informative, to say the least. (He has been keeping a blog which includes his impressions of gay life in Asia, and lots of photos; for those who are interested, the URL is www.satoristephen.com.)

China has no laws addressing homosexuality. Unlike in India (and the U.S. until very recently), sodomy is not a crime. What China has is tradition, and a culture that venerates family. Failure to marry and have children to carry on the family line is unthinkable to most Chinese men, and even more unthinkable is coming out to their parents. In the bars, Stephen met married men whose wives were presumably clueless about their extra-marital activities. He met others who recoiled at the very idea that their families might discover their sexual orientation. The Chinese closet is very dark, and the door is closed very tightly.

I attended a couple of academic conferences while we were in China, and I asked a young Chinese colleague about attitudes toward gays and lesbians. She confirmed the cultural bias, although she said things were beginning to soften somewhat among the more educated and affluent classes.

Here in the U.S., we tend to look longingly at Europe and Canada, where acceptance of gay relationships and even same-sex marriage is far more advanced than it is in red-state America. But as my mother used to remind me, things can always be worse.

Next year, when Pride rolls around, remember: you could live in Asia.

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Rules for the Rest of Us

What is it with this country’s moral scolds?

 

We see it over and over—Bill Bennett lecturing us on “values” while he’s losing more money than most of us make at Las Vegas’ gambling tables; Ted Haggard thundering against the “sin” of homosexuality while he’s paying a gay hooker; Paul Wolfowitz threatening to withhold World Bank dollars from countries with corrupt officials while he’s using public money to feather the nest of his live-in girlfriend. Our commander-in-chief, who routinely talks in terms of good and evil, had problems showing up for his own, stateside national guard duty, but evidently has no problem sending other people’s children off to fight in Iraq.

 

There would seem to be an epidemic of “do as I say, not as I do” going around.

 

The most recent high-profile victim of this epidemic is Judge Robert Bork. Bork, as many of you will recall, was nominated for a position on the Supreme Court, but failed to win confirmation when his radical opinions and truculent manner raised concerns about his judicial temperment. In the wake of that rebuff, he has gotten even more shrill, thundering against the “moral rot” of popular culture and advocating censorship, presumably to be imposed by people who agree with Robert Bork. He has written articles favoring stricter punishments for wrongdoers, and advocating “tort reform” restrictions on the right of injured parties to recover damages. In a 2002 article, Bork argued for a cap on “frivolous” claims and “excessive” damage awards. He has been particularly passionate in arguing against awards of punitive damages to injured plaintiffs.

 

Whatever the merits of these positions, they evidently are not meant to apply to the good Judge and his cronies. These are measures for the rest of us.

 

Recently, Judge Bork was one of twelve conservative law professors who asked permission to file an amicus or “friend of the court” brief urging clemency for convicted perjurer Scooter Libby. In its order granting the motion, the court dryly indicated that it expected to see these eminent conservatives “reaching out to other, more indigent, criminal defendents soon.” I wouldn’t hold my breath.    

 

Bork showed truly breathtaking chutzpah, however, following a fall as he was mounting the dias to make a speech at New York’s Yale Club. The good Judge has sued the Club for one million dollars plus—you guessed it—punitive damanges.

 

Perjury is a serious crime, as Judge Bork and other conservatives were quick to remind us when Bill Clinton was the perjurer.  If we should deny punitive damages to someone who lost a limb as a result of medical malpractice, why should a missing handrail entitle the Judge to receive them?  

 

As a self-styled constitutional “originalist,” Judge Bork has insisted upon the “neutral principles” of the law. Perhaps someone should remind him that a neutral principle is by definition one that applies to all persons who are similarly situated. To put that in language that even we peons understand, the same rules should apply to everyone.

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Politics and Justice

Partisan apologists for the Bush administration—joined by cynics of all political persuasions—shrug off recent disclosures about the firing of eight U.S. Attorneys. Just politics as usual, they yawn. Those discharged served “at the pleasure of the President,” and can be fired for no reason at all, so what’s the big deal?

 

Bud Cummins, one of the eight fired Prosecutors, recently answered that question. In an article in Salon, he acknowledged, “The president had an absolute right to fire us. We served at his pleasure.” But Cummins went on to explain the damage that is done when dismissal is based upon the prosecutor’s unwillingness to break the rules to “help” favored politicians.

 

“Put simply, the Department of Justice lives on credibility. When a federal prosecutor sends FBI agents to your brother’s house with an arrest warrant, demonstrating an intention to take away years of his liberty, separate him from his family, and take away his property, you and the public at large must have absolute confidence that the sole reason for those actions is that there was substantial evidence to suggest that your brother intentionally committed a federal crime. Everyone must have confidence that the prosecutor exercised his or her vast discretion in a neutral and nonpartisan pursuit of the facts and the law.”

 

We might draw an analogy to judicial selection. Everyone understands that the party in power can appoint federal judges whose judicial philosophy it favors. Would we then shrug our shoulders and say “politics as usual” if judicial appointments went to people who had promised in advance to rule on cases the way the administration wanted? Of course not. Choosing someone with a compatible judicial philosophy is one thing;  choosing someone who is corrupt is another.

 

Joseph D. Rich served in the Justice Department for 35 years, and was chief of the voting rights section from 1999 to 2005. As he recently wrote in the LA Times, he worked under Attorneys General with very different political philosophies, from “John Mitchell to Ed Meese to Janet Reno. Regardless of the administration, the political appointees had respect for the experience and judgment of longtime civil servants.” Not so the Bush Administration, which hired and fired solely on the basis of political loyalty.

 

“I personally was ordered to change performance evaluations of several attorneys under my supervision. I was told to include critical comments about those whose recommendations ran counter to the political will of the administration and to improve evaluations of those who were politically favored.”

 

The evidence we’ve seen so far suggests that prosecutors were dismissed because they refused to play politics—to bring bogus charges against Democrats, or stop investigating high-ranking Republicans. That’s bad enough—but what does that suggest about the U.S. Attorneys who were not fired? Their reputations have also been sullied, in most cases unfairly, because it is impossible not to wonder whether they kept their positions by “playing ball.”

 

When the White House trades justice for power, who can you trust?

 

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