Wednesday, May 9, 2007

Today's theme: trying to have it both ways

As you've probably heard, the House of Representatives just passed a bill expanding the federal hate crimes law. The law both provides for expanded federal assistance to local law enforcement in hate crimes cases, and expands the federal hate crimes statute to include crimes motivated by gender, sexual orientation and disability. The Bush administration opposes the bill, and may even veto it.

As Michael Dorf points out in a thoughtful column today, the White House's objections to this legislation are pretty flimsy. Not only are Commerce Clause and First Amendment objections here seemingly inconsistent with recent Supreme Court jurisprudence, but if valid, they would also apply to the existing federal hate crimes law, which covers crimes motivated by race, national origin, and religion. The White House statement gives nothing but ambiguous hints as to the administration's position on the existing law; it certainly doesn't call for its repeal.

If the White House is serious about these arguments, it should say, "The hate crimes law is a bad law and we should not expand it," even if it isn't willing to expend its now-scarce political capital pushing such a repeal. Moreover, with regard to the First Amendment, the White House should make the case that the protections inserted in the bill in its 2005 iteration to quell the longstanding concerns of the ACLU -- namely, barring the use of a defendant's unrelated speech or associations to establish motivation for a crime -- are not enough.

Like Dorf, I suspect that these objections are just a transparent pretext for homophobia. It's pretty apparent at this point that, for both opponents and supporters, the hate crimes bill doubles as a rehearsal for the recently-reintroduced Employment Non-Discrimination Act. Expanding the hate crimes law, both sides believe, will set a precedent easing the way to expand the Civil Rights Act. And judging from the White House statement on the former, it looks like the White House is cautiously groping for a viable position on the latter.

Our second topic for today is the military's increasing disregard for "Don't Ask, Don't Tell" in light of its increasingly strained human resources, exemplified by the case of a Navy linguist called back to service, even though he had concluded his prior service in the midst of being discharged for being openly gay. They could do this because, technically, his "DADT" discharge never went through, and he left because his time was up; they've apparently just decided to ignore his sexual orientation this time around. When you've squandered mountains of cash on recruiting, training and discharging queer servicemembers with specialized skills like this fellow, "What? Gay? We didn't hear nothin'" starts to sound like wise personnel policy.

Ironically, this particular story hits the news just weeks after the Joint Chiefs Chairman turned heads by declaring he supports DADT because homosexuality is "immoral." (You'll recall that General Pace later "regretted" his remarks, not because he didn't mean them, but because his own "moral views" are beside the point when it comes to military policy.) Fortunately, General Pace now gets to enjoy both the moral superiority of hanging onto DADT and the practical advantage of conveniently ignoring it now and again.

Now, perhaps it's unfair to compare the military's fudging of DADT to the White Houses's dubious arguments on the hate crimes bill. At the end of the day, DADT isn't actually the military's policy -- it's Congress's -- and lots of folks within the military would just as soon see it go, General Pace notwithstanding. Nevertheless, I do see a bit of a parallel here: the White House appears to want to please social conservatives by opposing a pro-gay bill, without displeasing pretty much everyone else by attacking the existing law, even though the two are essentially the same. And some Pentagon leaders want to stick to an anti-gay policy ostensibly based on the erosion of unite cohesion and morale by out troops, but at the same time is at least willing to tolerate the occasional, highly skilled out troop, even though, well, you get the idea.

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