Monthly Archives: May 2015

Profile in Courage: The 67 Representatives Who Said “No” to DOMA

Before I get started, I wanted to express my condolences to the Biden family for the loss of Beau Biden. Beau was a military veteran, a strong supporter of LGBT rights, and a great American in general who died long before his time and will be greatly missed.

Last year around this time, I did a two part blog post honoring the 14 Senators who voted against the Defense of Marriage Act in 1996. I felt that this was important, because while support for gay marriage is a mainstream political position now, it was fairly radical in 1996. DOMA was passed with a heavy, bipartisan majority and signed by a president who painted himself as a champion of gay rights. I am immensely pleased by the fact that many of the people, including that president, who originally supported DOMA have changed positions, but it was a lot tougher to vote “nay” in 1996. I figure that since I paid tribute to the Senators who voted “nay,” I should do the same for the Representatives who did. Due to the higher number of anti-DOMA Representatives compared with Senators–67 vs. 14–I cannot profile them all the way that I did with the Senators. So, without further adieu, in no particular order, here are the 67 Reps, grouped alphabetically, who stood up for gay equality when it was highly taboo!

1. John Lewis
2. Lynn Rivers
3. John Conyers
4. Barney Frank
5. Lynn Woolsey
6. Robert Matsui
7. Peter DeFazio
8. Chaka Fattah
9. Patrick Kennedy
10. Martin Sabo
11. John Williams
12. Bernie Sanders
13. Jim Moran
14. Jim McDermott
15. Steve Gunderson
16. Maurice Hinchey
17. Jesse Jackson, Jr.
18. Luius Gutierrez
19. Louise Slaughter
20. Bobby Scott
21. Joseph Kennedy
22. Barbara-Rose Collins
23. Henry Waxman
24. Ed Markey
25. Nancy Pelosi
26. Ron Dellums
27. Matthew Martinez
28. William Coyne
29. George Miller
30. Charles Rangel
31. Neil Abercrombie
32. Patsy Mink
33. Pat Schroeder
34. David Skaggs
35. George Brown
36. Tom Lantos
37. Pete Stark
38. Anna Eshoo
39. Zoe Lofgren
40. Sam Farr
41. Anthony Beilenson
42. Howard Berman
43. Xavier Becerra
44. Julian Dixon
45. Lucille Roybal-Allard
46. Esteban Torres
47. Maxine Waters
48. Jane Harman
49. Juanita Millender-McDonald
50. Frank Pallone
51. Donald Payne
52. Gary Ackerman
53. Jerrold Nadler
54. Cynthia McKinney
55. Ed Towns
56. Nydia Velasquez
57. Carolyn Maloney
58. Jose Serrano
59. Engel Elliot
60. Alcee Hastings
61. Sam Gejdenson
62. Carrie Meek
63. Sherrod Brown
64. Gerry Studds
65. Thomas Foglietta
66. John Olver
67. Louis Stokes

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Reflections on the Patriot Act

The Patriot Act looks as if it might be about to get scaled back. Three sections of the authoritarian legislation are about to expire unless Congress renews them, which appears less and less likely. The most controversial of these sections is Section 215. The ACLU does a great job summarizing the problems with this section here: (https://www.aclu.org/cases/aclu-v-fbi-foia-case-records-relating-patriot-act-section-215). Meanwhile, Senators like Mitch McConnell and Richard Burr are pushing to allow the NSA two years to dismantle its Orwellian phone records program instead of the generous six months given in the House of Representatives’s bill. If nothing else, the NSA’s program, rooted partly in the excesses of the Patriot Act, should function as a cautionary tale about the dangers of hastily passing a highly complex, questionable bill in a time of panic. There is also a certain irony in McConnell’s warm support for robust, almost totally unchecked government surveillance. One of McConnell’s primary political mentors, Senator John Sherman Cooper (R-KY), was among the strongest critics of excessive wiretapping during his time in office. (Cooper’s time in the Senate was, to borrow a phrase from the great Jon Stewart, “choppy as Hell,” as he served from 1946 to 1949, 1952 to 1955, and 1956 to 1973.) Cooper adamantly opposed allowing evidence gleaned from illegal wiretaps to be used in court and in 1968 was one of just four Senators to vote against the Omnibus Crime Bill–partly on the grounds that it allowed overzealous wiretapping. Additionally, the fact that over thirteen years after the Patriot Act’s original passage, many politicians still want it to continue reminds us how incorrect any claims at the time were that the legislation was just a temporary measure for the War on Terror. The War on Terror is unlikely to end anytime soon, which of course means that if government violations of privacy and due process are to continue as long as the War on Terror continues, they are going to be with us for a long, long time. For the foreseeable future, there will be some people who want to kill us and will try to do so. Eliminating terrorism completely is almost as difficult as eliminating crime completely. Furthermore, I fear that the War on Terror has become self sustaining. When 9/11 took place, the United States had the option of focusing all its antiterrorism energy on Al Qaeda. Instead, the United States also chose to focus its attention on any country connected with Al Qaeda in any way, even countries with no provable link to 9/11. Ignoring the fact that this logic would have required the U.S. to bomb itself for collaborating with Osama bin Laden in the 1980s, we first invaded Afghanistan, then Iraq. These wars could then be used to underwrite government demands for more power to shirt circuit due process. And our latest military intervention in Iraq may well motivate ISIS to try and attack the U.S., an intent which President Obama himself admitted had not been proven before we went to war with Iraq again last year. If there is any chance of the War on Terror being ended or mostly ended, such an event will never come when we continue invading countries without proof that they are planning to attack us–and if our track record is any indicator, we will not stop doing that anytime soon. Hence, we must operate under the assumption that the War on Terror is going to continue at least for decades more and stop believing that sacrifices of privacy rights are just short-term.

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Why Stick to Facts When You’re Talking About Crime?

Debates over racism and police brutality have been ratcheted up even further recently by the Freddie Gray case in Baltimore. There are several things that I would urge for people on both sides of the debate. Firstly, I would warn against making hasty judgments for or against the police officers charged in Gray’s death until all the evidence has been weighed. I certainly lean toward thinking they are guilty, but it is important to have proof before coming to a definitive conclusion. Secondly, even if the officers do turn out to definitely have been guilty of police brutality, it should not be assumed, absent specific and compelling evidence, that their actions were motivated by racism. Thirdly, just as we should not accept the narrative that all police officers are racist and/or needlessly violent, we should also not accept the narrative that racism is no longer a major problem in America. We got another reminder of this recently when Donald Trump tweeted, “Our great African American President hasn’t exactly had a positive impact on the thugs who are so happily and openly destroying Baltimore!” This asinine tweet was favorited by over six thousand people. So in Trump’s warped mind, because President Obama is black, he is responsible for everything any black people do. Or something. Never mind that white individuals have rioted over sporting events. Or that a white man in Idaho just shot a cop to death. Does Trump blame these events on Bill Clinton?

The main issue I wanted to discuss today is an aspect of criticism against black activists and black liberal political leaders expressed by many on the Right during the Michael Brown and Eric Garner cases late last year. I believe it is relevant in light of continued debates over police brutality and almost guaranteed to come up again in light of the Gray case. While other writers like Jamelle Bouie and Steve Chapman have addressed it previously, I would like to expand upon it. I will credit Bouie and Chapman up front with much of the information I provide here. Many conservatives criticize African Americans for allegedly ignoring black-on-black crime. This criticism seems most often used in the context of criticizing activists for the attention they give to police killings of blacks and possible hate crimes. It is also sometimes used to blame blacks completely for crime in low income, predominantly black communities and dismiss the history of racial inequality in this country as a factor. It is certainly true that most black murder victims are killed by other black people. And it is also true that African Americans are much more likely to be murder victims than whites are. So conservatives are correct to maintain that black-on-black crime is a serious problem. They are incorrect, however, to suggest that black liberals or “the black community” ignores black-on-black crime. Let’s start with Al Sharpton. If you ask me to list all the points of criticism I have against Sharpton, we will be here awhile. I have no problem calling him the Rush Limbaugh of the Left. However, one complaint against him that does not hold is the idea that he ignores black-on-black crime. In November of 2013, he traveled to Chicago to address largely black-on-black violence taking place there. Earlier that year, the Congressional Black Caucus attended an event in Chicago that also focused on looking for solutions to the city’s high level of violent crime. Also in Chicago in 2013, Michelle Obama attended the funeral of a 15 year-old black honor student allegedly murdered by a black gang member. Michelle Obama also traveled to Chicago to speak at a mostly black school, where twenty-nine current or former students had been shot in the past year, eight of them murdered. Barack Obama also traveled to meet with students participating in a mentoring program for at-risk male youth. The president warned that, “Our streets will only be as safe as our schools are strong and our families are sound.” Within the last five years, African Americans have participated in community protests against violent crime in Chicago, Newark, New York, Pittsburgh, Sagniaw, and Gary.

There is another important truth to note here. Just as most black murder victims are killed by other black people, most white murder victims are not killed by blacks. According to the FBI’s 2013 Uniform Crime Report, only fourteen percent of white murder victims were killed by African Americans. So given that African Americans are much more likely than whites to be murdered, and given that black-on-white homicide is relatively rare, why do many people seem convinced that most news outlets are engaged in a conspiracy to not cover black-on-white crime? A certain quote sums up this obsession with black-on-white crime relatively well. It comes from a man who most assuredly would not overstate a possible case of anti-black bias: “For decades whites have been far more exorcised about black-on-white crime than crime of the black-on-black variety. If you’re white you know this to be true, and if you’re black you damned well know this to be true … this may be uncomfortable for you, but its reality and it needs to be faced. Let someone kidnap, rape or murder a cute, blonde little white girl and all hell breaks loose. If the suspect is a black male, the outrage increases exponentially. Trust me … I’ve been in the media (or was) for 45 years … it is MUCH harder to get traction with the media for a story about a young black girl kidnapped, raped or murdered than it is if the victim is white … This is certainly not the way to bridge the racial gap in our country.” The quote, by the way, comes from Neal Boortz, a talk radio host who, to reiterate something stated previously, usually takes a conservative perspective on race relations to the point of being called out for it by Bill O’Reilly. When even Neal Boortz thinks there’s racial bias, you know we have a serious problem. I applaud conservatives for being concerned about black-on-black crime, but it would be nice if more of them would stop using it as a trump card to pillory African Americans and actually acknowledge that black-on-white murder is not nearly as common as they make it out to be.

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Looking to the Past to Predict the Future

The fact that marriage equality is being argued before the Supreme Court, with the court seeming poised to strike down gay marriage bans, is a pleasant surprise for me. Five years ago, I thought I would be an old man or deceased before gay marriage was legal in all fifty states. I have never been happier to be wrong. We know that Justices Ginsburg, Sotomayor, Kagan, and Breyer will vote to legalize gay marriage. Scalia, Thomas, and Alito are a safe bet to rule against it. The wild cards in the high court’s deck are Justices Kennedy and Roberts. On April 28, Roberts raised a point made a few years ago by libertarian writer Ilya Somin, that point being that gay marriage bans are a form of gender discrimination because they forbid individuals from doing something that would be permitted if they were of the opposite gender; that is to say, a man is allowed to marry a woman, but a woman is allowed to marry a woman. So I would not be surprised at all if we see Roberts side with the four liberal judges to legalize gay marriage while writing a concurring opinion explaining that he has a different reason for his decision than they do. In such a scenario, the four liberals would declare gay marriage bans a form of sexual orientation-based discrimination, while Roberts would declare it gender-based discrimination. Something similar to this occurred in McLaughlin v. Florida, the 1964 Supreme Court case striking down the Sunshine State’s law against interracial cohabitation, though of course a ruling against interracial marriage bans would take another three years. The Supreme Court’s ruling in McLaughlin was unanimous, but it included two concurring opinions in addition to Byron White’s main ruling, one written by John Marshall Harlan II, the other written by Potter Stewart and joined by William “Wild Bill” Douglas. Stewart’s concurrence used an argument similar to the one used by Somin and possibly Roberts. “I think it is simply not possible,” wrote Stewart, “for a state law to be valid under our Constitution which makes the criminality of an act depend upon the race of the actor.” Of course, Stewart and Douglas were ruling to the Left of other judges, as they were arguing that laws against interracial cohabitation were unacceptable under any circumstances, whereas White’s ruling argued that Florida’s ban did not meet “strict scrutiny.” Roberts would be positioning himself to the Right of four other judges. But the analogy still holds.

I also want to look at another possibility: the possibility that certain judges have not yet decided for sure how they will rule and may change their minds during deliberation. There is some evidence that such an occurrence took place in Brown v. Board of Education. According to Douglas, when the case was initially argued in 1952, an immediate ruling would have resulted in the court upholding public school segregation 5-4 with Douglas, Harold Burton, Sherman Minton, and Hugo Black dissenting. The questions for scholars have become: 1. Was Douglas’s reading of five judges correctly? 2. How in the world did we end up with an 9-0 ruling against segregation? Scholar Michael J. Klarman takes the position that while Douglas may have been correct to claim that only he, Burton, Minton, and Black were prepared to rule against segregation in 1952, he somewhat misread the sentiments of three other judges. In Klarman’s view, Tom Clark, Robert H. Jackson, and Felix Frankfurter all felt conflicted, with Jackson and Frankfurter in particular personally opposing public school segregation but feeling that it was constitutional. Chief Justice Fred Vinson and even more so Stanley Reed were probably against an anti-segregation ruling. On the other hand, some evidence suggests Frankfurter always planned to rule against segregation, and one theory is that when he and Jackson were expressing misgivings about judicial activism, they were just spinning their wheels trying to find a way to arrive at “the decision they wanted to reach” (striking down segregation). In Jackson’s case, this theory is subject to further controversy due to the fact that a law clerk of his by the name of William Rehnquist wrote a memo upholding segregation and later claimed that he had been asked by Jackson to write it as a summary of the judge’s stance. A secretary of Jackson disputes this claim, and Rehnquist certainly never needed anyone’s prodding to be bigoted, but there is still a distinct possibility that the future Chief Justice was telling the truth. At any rate, there is no denying that some of the justices would have originally upheld segregation. In Vinson’s case, it was a 1953 fatal heart attack that removed him from the equation. His replacement, Earl Warren, had racked up a mixed record on civil rights as Governor of California but came to the court determined to strike down Jim Crow schooling. While his ascension to the Court guaranteed at least a 5-4 anti segregation ruling, Warren wanted a unanimous decision and set about working for this goal. Once it became apparent that Frankfurter, Jackson, and Clark were going to vote against segregation, the staunchly segregationist Reed decided that he did not want to be the 1 in 8-1 and switched sides.

I would not be too surprised if the Supreme Court’s “pro gay marriage-undecided-anti-gay marriage” ratio is currently 4-2-3 with Ginsburg, Sotomayor, Kagan, and Breyer planning to rule in favor of gay marriage, Kennedy and Roberts undecided, and Thomas, Scalia, and Alito planning to rule against it. If that is the case, I believe something along the lines of the Brown deliberation may take place in which Kennedy decides to rule in favor of gay marriage, after which Roberts MAY feel comfortable joining him. Perhaps, they would like to rule in favor of gay marriage but are looking for a constitutional reason to do so. That could explain Roberts’s suggestion that anti-gay marriage laws discriminate based on gender. At any rate, there will not be a unanimous verdict like there was in Brown, McLaughlin, and Loving. Even if Alito and Thomas shock everyone and join the side of the angels, Scalia never will. He has a strong libertarian streak on free speech that caused him to rule to the Left of John Paul Stevens on flag desecration, but his extreme homophobia overrides any libertarian leanings he might have. It is important to note that in the 2003 Lawrence v. Texas decision overturning state laws against homosexual sex, Thomas called “sodomy laws” “uncommonly silly” despite dissenting from the majority. Scalia made no such disclaimer and just focused on making his dissent an anti-gay screed. Then again, there is a sliver of possibility that I could be wrong. It is unlikely anyone thought Stanley Reed would assent to a groundbreaking pro-civil rights decision. And if anyone had told me in high school that by 2015, we would be on the verge of having gay marriage legalized, I would have been truly astonished.

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