Sorry this has turned out to be more of a quarterly report than a blog. Thorough writing takes time, which has been in short supply throughout my clerkship. But the “hate crime” bill pending in Congress has fanned the flames of passion, driving me to make time this week.
I haven’t read it. I know nothing of its specifics. But I take the media’s description at face value, in that the bill punishes violent crimes more severely based on the victim’s homosexuality (as I understand, the current version of the law imposes increased punishments based on sex, race, etc.). I understand the good intentions behind this sort of legislation, but to quote Seth Meyers: Really? REALLY?? How can something so misguided make it all the way through the federal legislative process? This is a perfect example proving the point of my last post: the fundamental problem with state-sanctioned gay marriage isn’t religious or even moral but rather the flawed premise that homosexuals are “special,” somehow deserving of heightened privileges under the law (i.e., the “protected class” status invoked by homosexuals in the equal protection context). Once you start to believe that the type of people a person chooses to sleep with somehow makes that person worthy of a special legal status, how and where do you draw the line? Now the Majoritarian Agenda is pushing legislation that values someone’s life and limb based on their self-professed sexual orientation. There are two ways to view hate crime laws: enhancing the value of some victims’ lives because they posses a certain characteristic, or minimizing the value of other victims’ lives because they do not. How can the Majoritarian Agenda scream “EQUAL PROTECTION!” to justify why marriage laws should be radically altered to redefine a millennia-old institution, while at the same time promoting this sort of legislation? The hypocrisy completely discredits the entire movement.
And don’t think for a second that my criticism singles out the sexual orientation provision. All hate crime provisions are equally abhorrent. Killing or raping or beating someone is wrong regardless of sexual orientation, gender, race, or ethnicity, and must be punished appropriately. The fact that a perpetrator was motivated by certain characteristics of the victim should be absolutely irrelevant to society’s admonishment. Not only do hate crime laws recklessly devalue the lives of victims deemed merely “normal,” but they punish motivation rather than crime itself.
“Sure! What’s wrong with that?” you ask.
Well for starters, this sort of legislation criminalizes opinions. Think about that for a minute.
Obviously, most of us reject irrational hatred based on the type of characteristics that hate crime laws seek to protect. Most of us teach our kids that it’s wrong to judge a book by its cover, and that things like sexual orientation, race, and gender don’t preclude friendships. But some members of society legitimately (in their minds) believe that homosexuals are immoral, that blacks and Hispanics are inferior, or that women should be subservient to men. A few of these people vehemently despise homosexuals, racial minorities, and women. Nevertheless, even the most liberal constitutional scholar will tell you that minority viewpoints like these are precisely what the First Amendment was designed to protect, and what it must protect. It’s easy to avoid suppressing popular ideas; we don’t need a Constitution for that. The sole point of “free speech” as we know it is to protect unpopular ideas – like animosity towards blacks, gays, women, or foreigners. Levying enhanced criminal penalties simply because a perpetrator was motivated by a viewpoint we don’t like jeopardizes the sanctity of our marketplace of ideas as much as censoring that viewpoint in print.
Does the First Amendment allow the government to prohibit the publication of misogynistic, racist, or otherwise hateful commentary? Of course not. The fact is, we all have the right to dislike certain things and certain people – whichever things and people we choose, for any reason. Strong personal opinions should be encouraged as a matter of principle, not discouraged for fear of confrontation and friction. Dissent is the grease that keeps the cart wheels moving through the marketplace of ideas. For nearly a hundred years, the Supreme Court’s First Amendment jurisprudence has effectively managed to distinguish between thoughts which are protected by the First Amendment and criminal activity which is not. Until the recent advent of hate crime legislation, it was well established that thoughts and opinions could only be regulated if vocalized in a manner likely to incite imminent lawless behavior; that is, only if the thoughts and opinions are translated to actual speech, and even then only if the speech is a direct call to commit crime.
Is anyone really comfortable allowing our government to criminalize thoughts, even if it begins with thoughts we personally disagree with? Perhaps it is all too easy to accept laws targeting particular types of “hate” which the vast majority of society opposes. But if this sort of legislation is allowed to continue, none of us will be safe. No two people think exactly alike. Each of us holds deep personal opinions that are controversial to at least some members of society. And most of us disagree with the Majoritarian Agenda on least one or two things. How can any of us sit silently and watch as the government takes steps to judge the correctness of personal opinions and impose criminal liability when those opinions do not conform to the majority? If society comes to accept the principle behind hate crime legislation, it is only a matter of time before the Majoritarian Agenda gradually constricts itself tighter and tighter around our collective consciousness, suffocating outliers and iconoclasts until all that remains is an irrevocably entrenched, stagnant status quo.
The line between unpopular (even dangerous) ideas and criminal activity is properly drawn precisely as it has been for generations: at “activity.” Violent acts have always been criminal because of the harm they cause, not because of an attacker’s motivation. Rightly so. At best, hate crime legislation criminalizes animus itself, effectively censoring thought. At worst, the inherent fallibility of censors (in this case, our judicial system) makes it impossible to separate the targeted animus from other motivations. Even if criminalizing particular motivations for violence were desirable (which it is clearly not), it is naive to think that such policy can be implemented uniformly, consistently, or efficiently. Mixed-motive cases will be impossible to prosecute in an effective manner, with arbitrary results and burdensome costs of protracted litigation.
If a white guy kills a black guy in a drunken bar fight, it would be possible to prosecute the murderer under a hate crime statute if he yelled out “I hate niggers!” while pulling the trigger. Unfortunately, very few violent crimes play out so neatly, and prosecutors, defense attorneys, judges, and juries will waste endless hours trying in vain to peer inside a defendant’s mind at the moment of an offense. Almost all crimes can be characterized as mixed-motive; under hate crime laws, criminal liability will come to hinge significantly on the physical and personal characteristics of victims. The Matthew Shepard case is the perfect example – we will never know whether Russell Henderson and Aaron McKinney attacked Matthew because of animosity towards gays or simply because they were looking for someone to rob. And why does it matter? Both men are serving life sentences without parole after copping pleas to avoid the death penalty. The criminal justice system worked perfectly, with absolutely no regard for Shepard’s sexuality. Yet Shepard’s case was a catalyst for hate crime legislation, and the case belies even the slightest pretense of legitimate purpose behind such laws. Adding more prison time to a life sentence effectuates no additional deterrence, even in the abstract, theoretical sense (and from a practical perspective, little deterrence would likely be gained even for crimes with shorter sentences). The hate crime laws proposed in the wake of Shepard’s murder serve only to send a message that hatred of homosexuality is criminal. That is a dangerous message to send. In our society, there should be nothing criminal about hating homosexuals or anyone else. As each of us must retain the unfettered freedom to form our own beliefs, each too must bear responsibility for the actions we choose because of those beliefs. Existing laws ensure that perpetrators of violent crime are held accountable for their actions, regardless of a victim’s race, national origin, gender, or sexual orientation.
Monday, May 4, 2009
Wednesday, November 12, 2008
Prop 8 Backlash: Gays Gone Wild
I was on board with eliminating the laws criminally punishing sodomy, but this has gone way too far. Prop 8 passed because even the liberals are starting to recognize the need to draw a line in the sand between tolerance for and active encouragement of something abnormal that most people find perverse. Homosexuals should be ashamed of themselves for equating their so-called "struggle" with blacks or women -- immutable, identifiable groups that were actually repressed, not just denied fringe benefits. Come on homos! You made your choice, deal with the extremely limited legal repercussions of it! Think long and hard about what you want: a legitimate family with the legal benefits that come with it, or sexual gratification from a member of the same sex. I'm not saying you should choose the first one, but stop expecting the rest of us to give you a trophy and a parade for choice two.
And by the way, spare me the lame cop out about how it's "not a choice" because you've "had these feelings since 4th grade." Maybe so. Alcoholics "have a feeling" too. So do the morbidly obese. And compulsive smokers. And pedophiles. The law shouldn't bend over backwards to extend special benefits to help them satiate their inclinations for booze, food, nicotine, or prepubescent boys. And it shouldn't bend over backwards to reward you for sexual attractions either. No offense -- I'm not "hating" on it, but you have to admit it's not normal and not worthy of encouragement.
Now that the gay rights movement has achieved important levels of acceptance and tolerance, it has turned into a gay encouragement movement. But the only thing driving it is the overly empathetic sentiment of modern America that "everyone is perfect," "nobody's choice is better than anyone else's choice," and "people have no control over their subconscious desires." Right. Wake me up when we're all man enough to admit that we each make imperfect decisions and suffer from abnormalities in our own ways, AND that there's nothing wrong with society implementing incentives to reward that which is morally, socially, or economically desirable. Don't get all bent out of shape about society expressing mild disapproval of one thing that you prefer.
Cry me a fucking river about "sitting in judgment" or the purported "immutability" of your sexual orientation. I am not suggesting that you "straighten up and try to fly straight." I am simply echoing prevalent concerns about the deleterious effects of promulgating this bullshit "I can't help it, it's who I am! I'm not responsible for anything I say/do!" attitude that is infecting every aspect of society nowadays. Here's why I'd vote for Prop 8 if I lived in Cali:
The only legitimate argument for creating a new definition of marriage is grounded in equal protection principles. States have a legitimate interest in encouraging the nuclear family, if for no other reason than the perpetuation of our species. So in order to justify striking down pre-existing laws along these lines, homosexuals have to portray themselves as some sort of vulnerable class worthy of special protection. (NOTE: The protection afforded by the Equal Protection Clause is "special" and it cannot be blindly invoked by every man, woman, and child. Contrary to popular opinion in the gay community, equal protection does not mean that every single person gets to do whatever he wants, or that the government cannot pass laws which classify by certain criteria. EVERY law classifies by certain criteria! The question is whether an identifiable group can invoke a heightened level of judicial scrutiny when challenging laws that affect them.) This premise in turn relies on the assumption that homosexuality is an "immutable" characteristic like race or gender. FALSE. There may be a genetic component to it, and it may not be something that we can change like our hair style. But it is impossible to conceive of sexual orientation (or any other sexual inclination for that matter) as "immutable" without conferring the same status on every other subconscious predisposition known to mankind. This is a huge problem because it provides an irresponsible justification for every action: "I can't be expected to restrain myself from eating/drinking/molesting/sleeping around/doing what the voices in my head tell me to do! The urge is an immutable characteristic!" For this reason alone, expanding the definition of marriage to include same-sex couples will likely have deleterious effect -- unless doing so is somehow premised on a completely different rationale that explicitly rejects sexual orientation as some kind of protected class.
Look gays, nobody cares if you change or not (well, at least I don't). But personal *desire* to change is not the same thing as the *ability* to change, and that is what we’re talking about when it comes to mutability and protected classes. Sure, you have a STRONG predisposition toward your sexual orientation. Just like I do for mine. But that doesn't mean either of us are members of some special "class" akin to blacks or women in the eyes of the law. It just makes us human.
So your preference is atypical and society rationally deems the majority preference somewhat preferable and deserving of special legal recognition to a limited extent, because the majority preference is required for the perpetuation of our species. BIG FUCKING DEAL. Get over it! It's not just "rational," it's the most logical thing I've ever heard in my life.
If you'd put the bullhorn down and quit shouting “HATE! HOMOPHOBE!” long enough to listen to what the other side is saying, maybe you'd see that YOU'RE missing something here. There is no general animosity or antipathy towards who you are; only towards your sense of self-entitlement and the arrogant expectation that society implement broad-sweeping, fundamental changes simply to make it "easier" for you to live your life by more explicitly condoning your lifestyle so that you can avoid any modicum of feeling "left out." Well screw you and the horse you rode in. Not because you're gay, but because you think that being gay somehow makes you special.
I'm straight. Will I ever get married? Who knows. Sometimes I doubt it. You know why? Because I can't ever see myself being monogamous with one person. For all I know, casual dating and hooking up could be my chosen lifestyle well into my 30's, or maybe even my 40's. That's my sexual preference, and it's no less "inherent" or "immutable" than your sexual orientation. But you don't see me chastising the structure of the American family, demanding that the government change it in order to make it easier for me to reap the same (admittedly tiny) fringe benefits that my monogamous, married friends have. Because I'm secure enough in myself to recognize that even if God didn't craft me in 100% "optimal" fashion, I can still be happy in society, living under rules designed to foster and promote different lifestyles than my own.
No one is repressing you. No one is "hating" on you. The majority in California has spoken, and they said: We think legitimate families are something special and preferable, and marriage should recognize that. So stop accusing the whole world of being out to persecute you, and stop whining about the 3 seconds of mild discomfort caused by someone being caught off guard when they find out you're gay, as if that's supposed to make us feel sorry for you. We all have deeply personal things that differ from the societal norm, and might cause awkwardness or a slight stigma. That does not make us all special classes. Your trivial preference for the same sex is no more important than my friend's preference for European women or my other friend's preference for tall women or someone else's preference for girls with huge breasts. Get over yourselves gays and move on with your lives, and please let the rest of society move on with ours. I think you'll be quite pleasantly surprised to find out that you can be entirely happy and live an oppression-free life in California without the legal right to marry.
And maybe -- just maybe -- if you stop accusing everyone who rationally disagrees with your lifestyle preference of being objectively wrong or motivated by hate, then you'll find more and more straight friends. Right now you're alienating us with your hypocrisy.
So there it is: the non-religious argument against gay marriage and for Prop 8. Let's see if it can be assailed on any grounds other than my purported "bigotry," "homophobia," or "hatred of gays." Please gays, you've come so far in the past 20 years. Can't you do better than resorting to the very sort of ad hominem attacks you yourselves fought to eradicate? We're looking for a logical, reasoned rebuttal here people! Preferably one that explains why sexual orientation is any less mutable and any more deserving of special legal recognition than all other sexual inclinations and subconscious predispositions in general.
And by the way, spare me the lame cop out about how it's "not a choice" because you've "had these feelings since 4th grade." Maybe so. Alcoholics "have a feeling" too. So do the morbidly obese. And compulsive smokers. And pedophiles. The law shouldn't bend over backwards to extend special benefits to help them satiate their inclinations for booze, food, nicotine, or prepubescent boys. And it shouldn't bend over backwards to reward you for sexual attractions either. No offense -- I'm not "hating" on it, but you have to admit it's not normal and not worthy of encouragement.
Now that the gay rights movement has achieved important levels of acceptance and tolerance, it has turned into a gay encouragement movement. But the only thing driving it is the overly empathetic sentiment of modern America that "everyone is perfect," "nobody's choice is better than anyone else's choice," and "people have no control over their subconscious desires." Right. Wake me up when we're all man enough to admit that we each make imperfect decisions and suffer from abnormalities in our own ways, AND that there's nothing wrong with society implementing incentives to reward that which is morally, socially, or economically desirable. Don't get all bent out of shape about society expressing mild disapproval of one thing that you prefer.
Cry me a fucking river about "sitting in judgment" or the purported "immutability" of your sexual orientation. I am not suggesting that you "straighten up and try to fly straight." I am simply echoing prevalent concerns about the deleterious effects of promulgating this bullshit "I can't help it, it's who I am! I'm not responsible for anything I say/do!" attitude that is infecting every aspect of society nowadays. Here's why I'd vote for Prop 8 if I lived in Cali:
The only legitimate argument for creating a new definition of marriage is grounded in equal protection principles. States have a legitimate interest in encouraging the nuclear family, if for no other reason than the perpetuation of our species. So in order to justify striking down pre-existing laws along these lines, homosexuals have to portray themselves as some sort of vulnerable class worthy of special protection. (NOTE: The protection afforded by the Equal Protection Clause is "special" and it cannot be blindly invoked by every man, woman, and child. Contrary to popular opinion in the gay community, equal protection does not mean that every single person gets to do whatever he wants, or that the government cannot pass laws which classify by certain criteria. EVERY law classifies by certain criteria! The question is whether an identifiable group can invoke a heightened level of judicial scrutiny when challenging laws that affect them.) This premise in turn relies on the assumption that homosexuality is an "immutable" characteristic like race or gender. FALSE. There may be a genetic component to it, and it may not be something that we can change like our hair style. But it is impossible to conceive of sexual orientation (or any other sexual inclination for that matter) as "immutable" without conferring the same status on every other subconscious predisposition known to mankind. This is a huge problem because it provides an irresponsible justification for every action: "I can't be expected to restrain myself from eating/drinking/molesting/sleeping around/doing what the voices in my head tell me to do! The urge is an immutable characteristic!" For this reason alone, expanding the definition of marriage to include same-sex couples will likely have deleterious effect -- unless doing so is somehow premised on a completely different rationale that explicitly rejects sexual orientation as some kind of protected class.
Look gays, nobody cares if you change or not (well, at least I don't). But personal *desire* to change is not the same thing as the *ability* to change, and that is what we’re talking about when it comes to mutability and protected classes. Sure, you have a STRONG predisposition toward your sexual orientation. Just like I do for mine. But that doesn't mean either of us are members of some special "class" akin to blacks or women in the eyes of the law. It just makes us human.
So your preference is atypical and society rationally deems the majority preference somewhat preferable and deserving of special legal recognition to a limited extent, because the majority preference is required for the perpetuation of our species. BIG FUCKING DEAL. Get over it! It's not just "rational," it's the most logical thing I've ever heard in my life.
If you'd put the bullhorn down and quit shouting “HATE! HOMOPHOBE!” long enough to listen to what the other side is saying, maybe you'd see that YOU'RE missing something here. There is no general animosity or antipathy towards who you are; only towards your sense of self-entitlement and the arrogant expectation that society implement broad-sweeping, fundamental changes simply to make it "easier" for you to live your life by more explicitly condoning your lifestyle so that you can avoid any modicum of feeling "left out." Well screw you and the horse you rode in. Not because you're gay, but because you think that being gay somehow makes you special.
I'm straight. Will I ever get married? Who knows. Sometimes I doubt it. You know why? Because I can't ever see myself being monogamous with one person. For all I know, casual dating and hooking up could be my chosen lifestyle well into my 30's, or maybe even my 40's. That's my sexual preference, and it's no less "inherent" or "immutable" than your sexual orientation. But you don't see me chastising the structure of the American family, demanding that the government change it in order to make it easier for me to reap the same (admittedly tiny) fringe benefits that my monogamous, married friends have. Because I'm secure enough in myself to recognize that even if God didn't craft me in 100% "optimal" fashion, I can still be happy in society, living under rules designed to foster and promote different lifestyles than my own.
No one is repressing you. No one is "hating" on you. The majority in California has spoken, and they said: We think legitimate families are something special and preferable, and marriage should recognize that. So stop accusing the whole world of being out to persecute you, and stop whining about the 3 seconds of mild discomfort caused by someone being caught off guard when they find out you're gay, as if that's supposed to make us feel sorry for you. We all have deeply personal things that differ from the societal norm, and might cause awkwardness or a slight stigma. That does not make us all special classes. Your trivial preference for the same sex is no more important than my friend's preference for European women or my other friend's preference for tall women or someone else's preference for girls with huge breasts. Get over yourselves gays and move on with your lives, and please let the rest of society move on with ours. I think you'll be quite pleasantly surprised to find out that you can be entirely happy and live an oppression-free life in California without the legal right to marry.
And maybe -- just maybe -- if you stop accusing everyone who rationally disagrees with your lifestyle preference of being objectively wrong or motivated by hate, then you'll find more and more straight friends. Right now you're alienating us with your hypocrisy.
So there it is: the non-religious argument against gay marriage and for Prop 8. Let's see if it can be assailed on any grounds other than my purported "bigotry," "homophobia," or "hatred of gays." Please gays, you've come so far in the past 20 years. Can't you do better than resorting to the very sort of ad hominem attacks you yourselves fought to eradicate? We're looking for a logical, reasoned rebuttal here people! Preferably one that explains why sexual orientation is any less mutable and any more deserving of special legal recognition than all other sexual inclinations and subconscious predispositions in general.
Welcome
Welcome to The Countered Majoritarian.
This is my first foray into blogging. I am a recent law school graduate. I went to an "elite" school in a big city, and now I live in a small city where I clerk for a federal appellate judge. Next year I'll enter the world of "BIGLAW." In law school and the legal profession, I have become an iconoclast. I have great faith in the ability of individuals to help themselves, and little empathy for groups commonly perceived as victims. Unfortunately, I have decreasing faith in the motivation of the most recent generation to help itself. Adversity should build character, not justify paternalistic coddling. I believe in efficiency to the exclusion of almost all else, and I doubt the ability of government to provide for us in an efficient manner (if at all). I embrace positive improvement but I demand greater justification than change for change's sake. I recognize that not all social change is "progress," and that lackadaisical change results in unseen negative effects, no matter how well intentioned. The current incarnation of our two-party political system seems to be the first thing that should be fixed. Our dwindling sense of individual accountability and responsibility is a close second. That’s it I’m done.
For now.
I hope that you’ll find out more about me as you help me find out more about myself – and about you, the majority. The liberal media makes sure that I see your views, but I still have trouble understanding them. This is where I provide a counter-majoritarian voice on everything from religion to gun control to fiscal policy, and you explain why I’m wrong. Since the odds will probably be about 1,000,000 against 1, it shouldn’t be that hard for you! But I am looking forward to a challenge for myself.
And now, on to the topic that finally prompted me to give public voice to my thoughts . . .
This is my first foray into blogging. I am a recent law school graduate. I went to an "elite" school in a big city, and now I live in a small city where I clerk for a federal appellate judge. Next year I'll enter the world of "BIGLAW." In law school and the legal profession, I have become an iconoclast. I have great faith in the ability of individuals to help themselves, and little empathy for groups commonly perceived as victims. Unfortunately, I have decreasing faith in the motivation of the most recent generation to help itself. Adversity should build character, not justify paternalistic coddling. I believe in efficiency to the exclusion of almost all else, and I doubt the ability of government to provide for us in an efficient manner (if at all). I embrace positive improvement but I demand greater justification than change for change's sake. I recognize that not all social change is "progress," and that lackadaisical change results in unseen negative effects, no matter how well intentioned. The current incarnation of our two-party political system seems to be the first thing that should be fixed. Our dwindling sense of individual accountability and responsibility is a close second. That’s it I’m done.
For now.
I hope that you’ll find out more about me as you help me find out more about myself – and about you, the majority. The liberal media makes sure that I see your views, but I still have trouble understanding them. This is where I provide a counter-majoritarian voice on everything from religion to gun control to fiscal policy, and you explain why I’m wrong. Since the odds will probably be about 1,000,000 against 1, it shouldn’t be that hard for you! But I am looking forward to a challenge for myself.
And now, on to the topic that finally prompted me to give public voice to my thoughts . . .
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