Wednesday, July 28, 2010

Does NOM Chair Endorse Anti-Gay, Anti-Abortion Violence?

NOM Chairman Robert George

Publishing in the Yale Law Journal in 1997, Robert P. George, chairman of the National Organization for Marriage, explored the conflicts over some social issues and asked the question “Is it possible for people who sharply disagree about important questions of morality, including those pertaining to abortion and homosexuality, to constitute a stable political society whose basic constitutional principles can be affirmed as just by all reasonable parties?”

The Princeton professor and an influential conservative opinion maker spent nearly 17,000 words exploring the answer then summed up in a section titled “Civility, Reciprocity, and the Conflict of ‘Comprehensive Views.’”

It is possible, George concluded, “for citizens who differ fundamentally over certain basic moral questions to share a ‘deliberative’ conception of democracy that includes the mutually recognized obligations of citizens to treat those with whom they disagree with civility and respect.”

He cited “Democracy and Disagreement,” a 1996 book by Amy Gutmann and Dennis Thompson, as an example of those on the left who proposed a framework for tackling seemingly intractable issues.

“Their claim, rather, is that ‘reciprocity,’ which they consider to be deliberative democracy’s ‘first principle,’ demands that people recognize that others who come down on what they judge to be the wrong side of a disputed moral question may nevertheless be reasonable and honest people who deserve, therefore, to be reasoned with and treated with respect,” he wrote. But George equivocated.

“Yet reasoning with people and treating them with respect does not entail tolerating what one judges to be grave injustices so as not to offend those who judge otherwise,” he wrote. “Nor does it mean that one ought not to oppose injustices resolutely and forcefully in one's advocacy and action. Nor does it mean that one may not protest against injustices or even practice civil disobedience to prevent them. It does mean, however, that one has certain obligations to one's opponents, obligations that are not mere matters of politeness.”

That mildly ominous line had an endnote that read “For a succinct and, in my view, sound treatment of the morality of civil disobedience, see Finnis et al., supra note 46, at 354-57. On the vexed question of when violence may be used to combat injustices, see id. at 308-18.”

So it is a difficult question, but, in George’s view, apparently, violence can be used to fight injustices. But when?

The endnote referred to “Nuclear Deterrence, Morality and Realism,” a 1987 book by John Finnis, Joseph M. Boyle, Jr., and Germain Grisez. Like George, the authors are proponents of natural law theory, a 13th century philosophy that argues that moral truths can be discerned through reason and by observing man and the natural world.

As the title suggests the book is concerned with the moral questions that are raised by a central feature of nuclear war -- the idea of destructive weapons as implements that prevent violence. The pages that George cited wrestle with the inevitable killing of non-combatants, or “innocents,” that would result from a nuclear strike. Then there are some broader arguments.

“Justified social use of force is not limited to cases where those challenging just order are already attacking the lives of others,” Finnis and his co-authors wrote. “Also, as explained above, nothing in our moral theory limits the justifiable use of lethal force to cases in which human life is threatened. And so, just as a woman about to be raped can be justified in using lethal force against her assailant, so a society whose just order is about to be attacked by wrongdoers can be justified in using lethal force to defend itself.”

So when the “just order” of a society is threatened, that society can use force, even “lethal force,” to defend itself. In George’s world view, gay, lesbian, bisexual, and transgender people are not part of the “just order.” On the contrary, we threaten it.

George is a vocal opponent of same sex marriage. He has argued for criminalizing homosexuality. In 2002, he co-authored a friend-of-the-court brief for the Family Research Council and Focus on the Family, two conservative groups, in Lawrence v. Texas, a US Supreme Court case, that urged the court to uphold a Texas sodomy law. The court struck down the nation’s remaining sodomy laws in that case. George aided Colorado in its defense of Amendment 2, a 1992 law passed by voters in that state that barred any government entity there from enacting a regulation or law that banned discrimination based on sexual orientation. The US Supreme Court struck down Amendment 2 in 1996.

The American right wing has been saying for some time that they are subjected to discrimination, harassment, and even violence for expressing their views. In fact, it is lesbian, transgender, bisexual and gay Americans who endure violence, but that has not stopped conservatives from complaining publicly and in federal court cases that they are victims. Finnis and his co-authors have a comment on such a circumstance.

“Moreover, those who are mounting a serious challenge to just order and backing that challenge with the threat of force, even if they are not already threatening the lives of others, are almost certainly ready and willing to escalate their challenge to the point of killing,” they wrote. “Hence, if authorities reasonably judge that a particular challenge to just order cannot be met without using lethal force, its use will almost always be in defence of life as well as of other values included in and protected by just order.”

George did not respond to an email seeking an explanation.

Robert George responds:

In my opinion, there are no circumstances under which violence could be justified in any cause connected to sexual morality and marriage. It would be profoundly morally wrong for anyone on either side, or any side, to resort to violence (or the threat of violence or intimidation). Both sides, or all sides, are strictly morally obligated to use nonviolent means.

In a constitutional democratic polity such as ours, the currency of politics is reasoned argument. We all have the moral right to participate in the process and attempt to persuade our fellow citizens of the soundness or our views and the unsoundness of our opponents’ positions. Where people disagree about the requirements of justice and the common good, they should treat each other with respect even as they strongly argue for the positions they regard as true. I have no problem with the rough and tumble of democratic politics. Elections are not philosophy seminars. But I have a big problem with violence in any cause or for any political reason. I don’t mind politicians or political groups on all sides running aggressive and even negative ads or engaging in peaceful and respectful protests. That’s free speech, and it is protected by our Constitution. But violence and intimidation are different matters altogether, and have no legitimate place in our politics.

You asked when I believe violence can be justified to fight injustices. My answer is in line with traditional just war theory, except that I reject punitive war (which many traditional defenders of just war regarded as legitimate). (So I believe that war must be declared or launched by legitimate authority, be for defensive purposes, respect non-combatant immunity, etc.) I argued in a piece in the Wall Street Journal a few years ago that pre-emptive attacks against unjust aggressors who were themselves in the course of planning murderous attacks on others could legitimately be classified as defensive, and were therefore potentially justifiable. (I say “potentially” because any particular pre-emptive attack might be unjustified for other reasons. My point is only that one cannot infer from the fact that an attack is pre-emptive that it is something other than defensive. A pre-emptive attack might very well fail to qualify as defensive. But if such an attack fails to qualify as defensive, it is not necessarily because it is pre-emptive.) I realize that this position is controversial among just war theorists. Many believe that pre-emptive attacks by definition fail to qualify as defensive.

Thursday, July 15, 2010

Anti-Gay Policies Made Sense in '97: More Socarides Memos

Former Clinton Advisor Richard Socarides

As a lawsuit brought by the Log Cabin Republicans that challenges the military’s Don’t Ask, Don't Tell policy opened on July 13 in a federal court in San Diego, Richard Socarides, a former advisor on gay issues in the Clinton White House, told the Associated Press that the defense of the policy by the Obama administration was nonsensical.

“On the one hand, [President Barack Obama] has said he's working hard to stop these discharges,” Socarides said. “And on the other hand, the Justice Department is spending taxpayer dollars defending their ongoing right to kick people out.”

What must also be nonsensical then is that, as Gay City News reported, Socarides aided the Clinton administration in deflecting criticism of Don’t Ask, Don’t Tell by drafting presidential debate talking points in 1996 that advised President Clinton to dodge the issue. Socarides continued to aid the White House on that issue into 1997.

In February of that year, the Servicemembers Legal Defense Network, a group that assists lesbian and gay servicemembers, was preparing to release a report showing that discharges under Don’t Ask, Don’t Tell had increased by 42 percent since the policy was implemented. White House staff contacted the Pentagon to head off “any combative language” and Socarides told people at 1600 Pennsylvania Avenue what to say.

“The policy was intended to provide an opportunity for continued service to those willing to abide by the new policy,” Socarides wrote in a February 25, 1997 memo titled “Draft Talking Points: SLDN Report on Gays in the Military” that was downloaded from the Clinton Library. “While we have not had an opportunity to review the report, the allegation that the policy is not being implemented fairly, if true, is quite troubling.”

Socarides noted that then Defense Secretary William Cohen had “instructed his staff to investigate the allegations and any other relevant information to determine what is happening” and that “Secretary Cohen has indicated that violations of either the letter or the spirit of the policy will not be tolerated and the President, of course, concurs in this judgment.”

With appearances on cable TV, quotes in the mainstream press, and a recent editorial in the Wall Street Journal, Socarides is a leading critic of the Obama administration who whips the current White House for failing to undo the policies that Socarides’ former boss put in place.

This nonsensical posture does not end there. Just as Socarides drafted 1996 talking points that defended Clinton’s support for the Defense of Marriage Act, the 1996 legislation that barred the federal government from recognizing same sex marriages and allowed state governments to do the same, he aided Clinton in responding to a 1997 announcement from the Democratic National Committee that it would begin providing health benefits to the domestic partners of its employees.

In a May 14, 1997 memo titled, “Talking Points: DNC/Domestic Partner (Health Care) Benefits for Same Sex Partners,” Socarides wrote that businesses and non-profit organizations had the option of providing such benefits. What the DNC did was its business.

“Decisions relating to employee benefits are made by the Chairman and senior DNC management,” Socarides wrote. “The White House was made aware of the policy change at a staff level.”

And the president’s position on such benefits?

“The President is aware that many communities and institutions are considering whether basic benefits can be provided outside the context of traditional marriage,” Socarides wrote. “The challenge in addressing these issues is to remain sensitive to the values of our communities while preserving the fundamental right to live free from unjustified discrimination.”

Roughly two months later, Socarides issued another set of talking points on domestic partner benefits that recommended neutrality.

“While I'm sympathetic to many of the concerns raised, I think we will have to moniter (sic) for a time how these policies work in practice and take a hard look at what's happening in the private sector and in communities which have instituted such policies,” Socarides wrote in a July 21, 1997 memo titled “Domestic Partner Proposed Talking Points.”

Nonsensical indeed.

Monday, July 12, 2010

Using Faggot Isn't Anti-Gay, Judge Asserted

Joseph Holladay on July 1, 2009, three days after the assault

Before he laid out his reasons for dismissing the hate crime charges against Driton Nicaj, a now 20-year-old who was indicted on two counts of third degree assault as a hate crime in the 2009 attack on Joseph Holladay, Judge Ronald A. Zweibel turned to his copy of the Oxford Dictionary of the English Language, which was published in 1982, for a definition of the word “faggot,” the slur Nicaj used during the assault.

“[T]he Oxford Dictionary makes no reference to faggot meaning a male homosexual, which is not surprising given that it is not a common slang usage in the United Kingdom,” Zweibel wrote in the December 10, 2009 decision dismissing the charges. “The origin of the term faggot to derogatorily refer to a homosexual male is obscure and subject to much urban legend.”

The gay men, like Holladay, who have heard that word before, during and after an attack know all too well that it comes from prejudice and violence. Its meaning is as clear as the blow from a fist, the wound from a knife or bullet, or the pain that lingers long after the cuts, bruises, and broken bones have healed.

In his 12-page decision, Zweibel spent a page-and-a-half pondering the word “faggot.” When it seemed he would assert that Nicaj’s meaning was unclear, Zweibel concluded that in the United States “a person of ordinary intelligence would take it as a derogatory term for a male homosexual and no reasonable person would infer that respondent was calling the alleged victim a bunch of twigs.”

Nicaj’s assault left Holladay unconscious and put him in the hospital. Roughly 24 hours later, Nicaj attacked two others, also gay men if 2009 press reports are to be believed, with the attacks taking place 30 minutes apart. One of those men had a broken nose and three skull fractures requiring six hours of surgery to insert a metal plate in his head. It is beyond offensive for Zweibel to muse at length on the meaning of “faggot” given what these men endured.

In a deal with the Manhattan district attorney, Nicaj pleaded guilty to the assaults and was sentenced to 45 days in jail and three years on probation. He began his sentence on May 20 and was released on June 9 after accounting for time served and good behavior.

Zweibel also looked like a fool. It did not occur to him that consulting a 28-year-old dictionary is a mistake when one is trying to look clever. “Faggot,” the anti-gay slur, has been among the definitions of that word in the Oxford English Dictionary since 1989 and the 2005 edition of the Oxford American Dictionary has the slur as the first definition of the word.

Just as offensive was Zweibel’s tortured reasoning on what was shown by Nicaj’s use of “faggot” as he committed the assault. Zweibel called it “just typical trash-talking” in his decision. It was not evidence of Nicaj’s motivation or state of mind.

“First, there is no evidence that the alleged victim is a homosexual,” Zweibel wrote. The New York state hate crime statute does not require that the victim be a member of the law’s protected classes, which include sexual orientation. The defendant need only believe that the victim belongs to those classes. How would we know what Nicaj believed? According to Zweibel, what he said during the assault is not evidence of what he was thinking at the time.

“Second, there is no evidence that defendant believed that the alleged victim was a homosexual -- except for the fact that he called him one,” Zweibel wrote.

Saying that this could lead to bizarre cases, Zweibel went on to list fictional cases in which “calling a Jew a wop” or “calling a black person a white Aryan bastard” or “calling an atheist or agnostic a Christian or Islamic fascist” could lead to a prosecutor charging a hate crime.

“The law does not countenance absurd results such as this,” Zweibel wrote.

The problem with American hate crime laws has never been that they lead to “absurd results.” The problem has always been that they are not used by law enforcement and prosecutors. Clearly, we have a problem with some of our more benighted judges as well.

Thursday, July 8, 2010

City Discloses Wider Porn Shop Arrest Effort

Blue Door Video on First Avenue

Speaking at a hearing on four federal civil rights lawsuits brought by five men who charge they were falsely arrested for prostitution in porn shops and a spa by New York City vice cops, an attorney for the city said police made such arrests in 10 businesses from January 2007 to the end of 2009.

Attorneys for the five men have argued that the city made the arrests so it could later cite them in nuisance abatement lawsuits it brought to try and shut the businesses down. Tonya Jenerette, a senior counsel in the city’s Law Department, said that the city’s data did not support that.

In the three-year period, 75 lawsuits brought against businesses by the police department’s legal unit cited prostitution arrests, but just eight of the 75 cited arrests of men, Jenerette said. Two of 24 lawsuits that cited prostitution arrests brought during that time by the Mayor’s Office of Special Enforcement cited arrests of men.

“Their theory of the case is just nonsense,” Jenerette said at the July 7 hearing before Judge Shira A. Scheindlin. Jenerette did not say how many men were arrested altogether and she declined to comment following the hearing.

Reporting for Gay City News, I previously identified six porn shops and two spas in which men were arrested for prostitution by officers in the Manhattan South Vice Enforcement Squad in 2008. Among the six porn shops, only five were sued by the city so it is possible that there are additional businesses where such arrests were made, but they are not included in Jenerette’s data because those businesses were never sued. At least 30 men were busted in the six porn shops. Eleven men and one woman were busted in the two spas.

Attorney Michael L. Spiegel is representing three men who were busted in Unicorn DVD on Eighth Avenue and one man who was arrested in a 34th Street spa. James I. Meyerson is representing Robert Pinter, a gay man who was arrested in Blue Door Video on First Avenue and blew the whistle on the city in late 2008. It appears that the police department largely stopped making these arrests after Pinter went public. A man who was arrested in an East 37th Street spa is suing the city in state court.

While interesting, Jenerette’s data does not disprove the plaintiff’s theory. It may supply more information to bolster that theory. Then the plaintiffs never claimed that they were the only population targeted by the police.

What Jenerette’s data clearly does not explain is the improbable nature of these arrests. In Blue Door Video, eight of the 12 men arrested were between 42 and 54.

These arrests were made by the same crew of undercover officers who were identified only by their badge numbers in criminal and civil court records. Just two officers -- 3371 and 31107 -- made most of the porn shop arrests. Undercover 3371 is known to have busted at least 16 men. Four were 27 or younger, six ranged in age from 32 to 38, and another six were 41 to 49. Four of the seven men that 31107 arrested ranged from 34 to 37 and two were 43 and 44. The oldest, Pinter, was 52.

In a December 3, 2008 email to me, Paul J. Browne, the police department’s chief spokesman, wrote that “So far in 2008, 31 out of 179 men who were arrested for prostitution-related offenses in Manhattan South were above the age of 40. In other words, 82.7 percent were younger, often in their 20s.”

Or, in other words, male prostitutes arrested in Manhattan South, which ranges from 59th Street to the bottom of the island, were overwhelmingly younger men. So how does one explain this concentration of older male prostitutes arrested in Blue Door Video and other porn shops?

What Pinter and other men who were arrested said was they were first approached by a young, attractive man who flirted aggressively with them. After they agreed to consensual sex, with the young man insisting that the sex take place in his nearby apartment or car, the young man then said he would pay them for the sex. The offer of money usually came right before the arrest.

It certainly looks like the city was less interested in addressing prostitution and more interested in racking up arrests to be used in closing porn shops, an industry that the city has been attacking for decades.

In 2008, police arrested 151 men, 329 women, and 32 people whose gender was “unknown” for prostitution in Manhattan, according to statistics from the state Division of Criminal Justice Services. In 2009, police arrested 57 men, 247 women, and 28 people of “unknown” gender for prostitution in Manhattan. Inexplicably, prostitution arrests in Manhattan fell by 35 percent in 2009 over 2008. In the other four boroughs, prostitution arrests were stable or increased in 2009 over 2008.

I know from reviewing roughly 35 nuisance abatement lawsuits brought by the city in 2008 that the undercover officers who arrested men in porn shops and spas also frequently worked together arresting women for prostitution and unlicensed massage in other businesses.

What the state data suggests is that when the gay community objected in late 2008 to the police tactics used in these arrests, the bosses at One Police Plaza flipped a switch and Manhattan prostitution arrests plummeted in 2009. That may be due to the city not caring so much about prostitution and caring more about shuttering porn shops, spas, and massage parlors. Of course, that also means that Jenerette is wrong.

Tuesday, July 6, 2010

Adventures in Transparency or What a Difference a Federal Subpoena Makes

Manhattan District Attorney Cyrus R. Vance

I have watched with some envy, perhaps a lot of envy, as attorney Michael L. Spiegel has battled with the Manhattan district attorney over access to records he subpoenaed as part of three federal civil rights lawsuits he brought in 2009 on behalf of four men who were busted by vice cops for prostitution in a porn shop and a spa.

Spiegel’s theory, as described by Judge Shira A. Scheindlin in a June 22 order, is that “their arrests were not only baseless, but were part of an unconstitutional program by New York City to pursue nuisance abatement lawsuits against businesses by making false arrests for prostitution at the business sites, then using the facts of those arrests to bolster the City’s efforts to close those businesses.”

To show such a program, Spiegel needs more than just his clients’ arrest records so he sought documents from two investigations into the arrests done by the district attorney -- one by the Official Corruption Unit and the second by attorneys in the Trial Division. The district attorney objected.

On June 22, Scheindlin largely gave Spiegel everything he sought allowing limited redactions to the records. Given my experience with Freedom of Information requests sent to the district attorney, it was refreshing to see that one branch of government takes transparency seriously.

Before Scheindlin issued her order, I made a Freedom of Information request to the district attorney seeking some of the same records that Spiegel sought. I was not at all surprised when I was granted access to just three pages of records out of the dozens I sought.

In 2008, when Gay City News first reported that at least 30 men had been busted on prostitution charges in at least six Manhattan porn shops, I made a Freedom of Information request to the district attorney seeking all criminal complaints alleging prostitution by men in Manhattan in 2008. The district attorney’s office, then under Robert Morgenthau, denied me access to every single complaint saying in 2009 that they were the subject of a “pending DANY investigation.”

What I knew then was that at least 179 men had been arrested for prostitution in the police department’s Manhattan South unit, which ranges from 59th Street to the bottom of the island. I assumed, with some doubts, that every one of the 179 arrests was being scrutinized. As Spiegel tussled over his subpoena, the district attorney made filings this year in federal court that described the scope of the two investigations. Together, they reviewed, at most, 37 arrests and the real number is probably closer to 20 with the two investigations weighing at least some, perhaps all, of the same arrests. While 20 percent, at best, of the prostitution complaints against men were being investigated, the district attorney used the pretext of the investigation to deny me access to all those records. Did the district attorney’s office lie to me? Perhaps. There may have been another reason for this subterfuge.

When Assistant District Attorney Sarah Hines first responded to my 2008 request, she wrote that she was trying to find a “practical and feasible way” to fulfill my request. In other words, she had to figure out how to separate the hundreds of complaints alleging prostitution by women from the far smaller number charging men with that crime without reading every complaint. The district attorney was being lazy. But that’s not all.

I have from time to time sent Freedom of Information requests to the city’s five district attorneys seeking criminal complaints alleging public lewdness against men. I do this to assess the extent to which the New York City police department is targeting gay and bisexual men for arrest in cruising spots. Alone among the city’s five district attorneys, the Manhattan district attorney has consistently denied me access to pending cases and blacked out the names of the men arrested to prevent me from speaking to them. The consistent figure in these denials has been Patricia J. Bailey, chief of the Special Litigation Bureau, the same unit that handled Spiegel’s subpoena.

It is apparent that Bailey possesses the mindset that sees New York’s Freedom of Information Law as a threat to the bureaucracy that has nurtured her career since 1986. Knowing this, and given that Manhattan had a new district attorney in Cyrus Vance, I decided to try an end run around her.

When my Freedom of Information request for some of the records that Spiegel had subpoenaed was denied, as I fully expected it would be, I sent an appeal to Bailey with a copy to Vance. At his home.

I laid out the recent history with Hines and the longer, more troubling history with Bailey. In closing, I told Vance that it was “past time that your agency obeyed the provisions of the Freedom of Information Law.” Apparently, he disagrees. On June 11, my appeal was denied in its entirety. I have heard nothing from Vance.

I had hoped that with Vance’s 2009 election that there would be more sunshine coming from the Manhattan district attorney’s office, but it appears that will not be the case.