John F. Kennedy promised during his 1960 presidential campaign to end racial discrimination in federally assisted housing “with the stroke of a pen,” but the author of Profiles in Courage waited almost two years to issue the promised executive order.
Bill Clinton promised during his 1992 campaign to end discrimination against gays in the military, but in office he backed away from an executive order and gave Congress running room to write discrimination into law with the “don’t ask, don’t tell” policy.
Fifteen years later, Barack Obama campaigned on a promise to repeal “don’t ask, don’t tell” if elected. But the White House and Congress have put gays in the military on a back burner along with other gay rights issues until the economy is revived, health care reformed and Afghanistan made safe for democracy.
As a result, some in the gay rights community are calling for Obama to end the discrimination against gay and lesbian service members with the stroke of his presidential pen. Specifically, they believe Obama can and should stop any enforcement of “don’t ask, don’t tell” under a statutory provision authorizing the commander in chief to issue a “stop loss” executive order during what is recognized as an official military emergency.
With two wars ongoing and manpower needs pressing, advocates for gay service members point out that the policy has cost the military more than 13,000 service members since its inception. Among those discharged are at least 59 Arabic linguists, trained by the military at considerable expense and vitally needed for intelligence-gathering and analysis in combating al Qaeda and other anti-American Islamist groups.
In the first place, Congress passed the law establishing the policy on the basis of anecdote and opinion instead of research and evidence. The Pentagon submitted a 15-page report by its Military Working Group that consisted mostly of compilations of anti-gay attitudes by senior military officers. The Pentagon succeeded in mostly burying a more scientific, 500-page study by the RAND Corporation that said sexual orientation was “not germane” to military service and predicted a non-discrimination policy could be implemented effectively with proper leadership.
Whatever plausibility the military’s concerns might have had in 1993, they are refuted by the evidence since then from the 24 countries that now allow military service by out gay men and lesbians, according to Nathaniel Frank, a senior researcher with the Palm Center at the University of California-Santa Barbara. As Frank writes in his argumentative but well documented book Unfriendly Fire, none of those countries — including such U.S. allies as Britain, Canada, and Israel — has seen any impairment to unit cohesion, recruitment, or fighting capability.
Within the U.S. military, “don’t ask, don’t tell” has hurt rather than helped unit cohesion. For gay service members, the policy fosters suspicions of their colleagues and diminishes military comradeship at a time when more and more straight service members have no problem interacting with gays. But for homophobic service members, the policy contributes to a climate that encourages anti-gay harassment and ignores it when it occurs.
One thing has changed since 1993: public opinion. Most Americans opposed the idea of gays in the military in 1993. Today, various polls show upwards of 75 percent of Americans favor allowing gays to serve openly in the military. The most recent Gallup poll found majority support even among self-identified conservatives, Republicans and churchgoers.
Despite the compelling evidence and the favorable shift in public attitudes, the White House says Obama cannot act on his own because “don’t ask, don’t tell” is statutory law, not an executive order. Frank and fellow researchers at the Palm Center disagree. They point to a provision in the law (10 U.S.C. § 12305) that allows the president to suspend separations from the military during any period of national emergency, such as now, in which members of a reserve component are serving involuntarily on active duty.
The White House is reportedly unconvinced of the legal argument and concerned about the political fallout. The risks are not slight. A preemptive presidential action could antagonize both Congress and the military leadership. “If you stick your finger in the eyes of [Defense Secretary Robert] Gates and [Joint Chiefs of Staff Chairman] Mike Mullen, I’m not sure how far that gets you,” says Aubrey Sarvis, executive director of Servicemembers Defense Legal Network.
Sarvis says he would favor the executive order approach only if Obama simultaneously pushes the issue on Capitol Hill. Frank and his colleagues say the executive order might cost Obama less political capital in the end. And they also expect that allowing gays to serve openly would prove to all but the unpersuadable that an enlightened policy enhances military readiness at no cost to unit cohesion or recruitment.
Sixty years ago, President Harry Truman ended racial segregation “with the stroke of a pen.” Military leaders were opposed — and later dragged their feet in implementing the new policy — but Truman reminded them that he was commander in chief. History vindicates his decision. Obama, facing a less treacherous political terrain, might consider whether history would similarly look with favor on a similar exercise of presidential courage today.
Thursday, October 8, 2009
Sunday, October 4, 2009
Justices' Choice: Protecting Animals or Free Speech?
Hard cases make bad law. Consider one at the start of the Supreme Court’s new term that asks the justices to choose between protecting the First Amendment and preventing cruelty to animals.
Ten years ago, Congress passed a law making the “depiction of animal cruelty” a federal crime. The act was aimed at outlawing so-called “crush videos,” horrific depictions of women, often in high heels, crushing puppies, kittens, or other small animals to death. The videos were said to have been readily available on the Internet to users who, perversely, found them sexually arousing.
The law was written broadly to get over significant obstacles in enforcement. Specifically, the law prohibits creating, selling, or possessing any photograph or video in which an animal is “intentionally maimed, mutilated, tortured, wounded, or killed” if the conduct is illegal under federal law or under the law of the jurisdiction where the depiction is created, sold, or possessed.
Despite its evidently salutary purpose, the act represented a significant incursion on the First Amendment. The justices are now being asked to rule a category of speech outside the First Amendment for the first time since the Court’s 1982 decision, New York v. Ferber, upholding a state ban on child pornography. As with the child porn law, the argument is that the only way to prevent harm — to children in one case, to animals in the other — is to dry up the market by allowing the government to prosecute not only the producers of the offending material, but also the buyers.
The new act tries to acknowledge free-speech concerns. It exempts any material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Ten years later, the government has prosecuted only one person under the law. Robert Stevens, a Virginia man, was indicted in 2004 for on charges of selling to undercover law enforcement agents in Pennsylvania two videos depicting dog fighting and a third showing pit bulls in a wild boar hunt. Dog fighting is illegal in all 50 states, but not in Japan, where one of the videos was made.
Stevens, who made and narrated the videos, was convicted in March 2005 by a federal jury in Pennsylvania that rejected his effort to portray the videos as a celebration of pit bulls’ nobility and character. On appeal, however, the Third U.S. Circuit Court of Appeals overturned the convictions in June 2008 and found the law unconstitutional on free-speech grounds.
The appeals court said the law failed to satisfy the demanding “strict scrutiny” test. The government’s interest in preventing cruelty to animals had not been shown to be compelling, the majority judges said. In addition, the statute was not narrowly tailored to further that interest; instead, the judges suggested, the government should strengthen enforcement of the underlying laws preventing cruelty to animals.
The Humane Society of the United States had cheered passage of the law and claimed success in drying up the market for crush videos — perhaps a reason for the lack of prosecutions. With the appeals court’s decision, however, the society said crush videos are again readily available on the Internet. It found one site that offered 118 videos for sale at prices ranging from $20 to $100.
Media groups rallied in support of the appeals court’s decision after the justices agreed to hear the government’s plea to revive the law. They say the law overreaches by encompassing everything from artistic renderings of bullfights to journalistic coverage of hunting and fishing. Attacking the law is not popular, the opponents say. But their number includes one strange but powerful bedfellow: the National Rifle Association.
Conservatives like to claim that on the current Supreme Court the conservative justices are the most consistent defenders of the First Amendment. The claim depends primarily on the conservatives’ recent invocation of political speech grounds to question the constitutionality of campaign finance regulations. But Justices Antonin Scalia and Anthony M. Kennedy also established their First Amendment bona fides two decades ago by joining in decisions that struck down federal and state laws banning desecration of the U.S. flag.
Handicapping the current case, United States v. Stevens, is difficult at best. In defending the law, the government is asking the justices to accept the broad proposition that speech can be categorically prohibited if the harm to society outweighs any benefits from the speech. That broad argument might appeal to Justice Stephen G. Breyer, who likes to take a pragmatic approach to First Amendment issues. But the Court need not go that far to uphold the law. It could simply follow the “dry up the market” rationale adopted in Ferber.
The media groups’ “slippery slope” argument may appeal to Kennedy, who has joined with liberal justices in some cases to strike down sex-related speech regulations. But Kennedy is also a moralist who, most recently, allowed his anti-drug views to overcome free-speech concerns in upholding the suspension of an Alaska student for displaying a patently harmless “Bong Hits for Jesus” banner in Morse v. Frederick (2006). He may find cruelty to animals at least as offensive.
The arguments are on Tuesday, Oct.5, the second day of the new term. It’s a hard case. With strong arguments on both sides, the justices will need to take care to avoid making bad law.
Ten years ago, Congress passed a law making the “depiction of animal cruelty” a federal crime. The act was aimed at outlawing so-called “crush videos,” horrific depictions of women, often in high heels, crushing puppies, kittens, or other small animals to death. The videos were said to have been readily available on the Internet to users who, perversely, found them sexually arousing.
The law was written broadly to get over significant obstacles in enforcement. Specifically, the law prohibits creating, selling, or possessing any photograph or video in which an animal is “intentionally maimed, mutilated, tortured, wounded, or killed” if the conduct is illegal under federal law or under the law of the jurisdiction where the depiction is created, sold, or possessed.
Despite its evidently salutary purpose, the act represented a significant incursion on the First Amendment. The justices are now being asked to rule a category of speech outside the First Amendment for the first time since the Court’s 1982 decision, New York v. Ferber, upholding a state ban on child pornography. As with the child porn law, the argument is that the only way to prevent harm — to children in one case, to animals in the other — is to dry up the market by allowing the government to prosecute not only the producers of the offending material, but also the buyers.
The new act tries to acknowledge free-speech concerns. It exempts any material that has “serious religious, political, scientific, educational, journalistic, historical, or artistic value.”
Ten years later, the government has prosecuted only one person under the law. Robert Stevens, a Virginia man, was indicted in 2004 for on charges of selling to undercover law enforcement agents in Pennsylvania two videos depicting dog fighting and a third showing pit bulls in a wild boar hunt. Dog fighting is illegal in all 50 states, but not in Japan, where one of the videos was made.
Stevens, who made and narrated the videos, was convicted in March 2005 by a federal jury in Pennsylvania that rejected his effort to portray the videos as a celebration of pit bulls’ nobility and character. On appeal, however, the Third U.S. Circuit Court of Appeals overturned the convictions in June 2008 and found the law unconstitutional on free-speech grounds.
The appeals court said the law failed to satisfy the demanding “strict scrutiny” test. The government’s interest in preventing cruelty to animals had not been shown to be compelling, the majority judges said. In addition, the statute was not narrowly tailored to further that interest; instead, the judges suggested, the government should strengthen enforcement of the underlying laws preventing cruelty to animals.
The Humane Society of the United States had cheered passage of the law and claimed success in drying up the market for crush videos — perhaps a reason for the lack of prosecutions. With the appeals court’s decision, however, the society said crush videos are again readily available on the Internet. It found one site that offered 118 videos for sale at prices ranging from $20 to $100.
Media groups rallied in support of the appeals court’s decision after the justices agreed to hear the government’s plea to revive the law. They say the law overreaches by encompassing everything from artistic renderings of bullfights to journalistic coverage of hunting and fishing. Attacking the law is not popular, the opponents say. But their number includes one strange but powerful bedfellow: the National Rifle Association.
Conservatives like to claim that on the current Supreme Court the conservative justices are the most consistent defenders of the First Amendment. The claim depends primarily on the conservatives’ recent invocation of political speech grounds to question the constitutionality of campaign finance regulations. But Justices Antonin Scalia and Anthony M. Kennedy also established their First Amendment bona fides two decades ago by joining in decisions that struck down federal and state laws banning desecration of the U.S. flag.
Handicapping the current case, United States v. Stevens, is difficult at best. In defending the law, the government is asking the justices to accept the broad proposition that speech can be categorically prohibited if the harm to society outweighs any benefits from the speech. That broad argument might appeal to Justice Stephen G. Breyer, who likes to take a pragmatic approach to First Amendment issues. But the Court need not go that far to uphold the law. It could simply follow the “dry up the market” rationale adopted in Ferber.
The media groups’ “slippery slope” argument may appeal to Kennedy, who has joined with liberal justices in some cases to strike down sex-related speech regulations. But Kennedy is also a moralist who, most recently, allowed his anti-drug views to overcome free-speech concerns in upholding the suspension of an Alaska student for displaying a patently harmless “Bong Hits for Jesus” banner in Morse v. Frederick (2006). He may find cruelty to animals at least as offensive.
The arguments are on Tuesday, Oct.5, the second day of the new term. It’s a hard case. With strong arguments on both sides, the justices will need to take care to avoid making bad law.
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