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Congress Discriminates and Panders at the Same Time

There's an interesting editorial in the New York Times today about how the military is losing some of its few Arab translators due to the military's blanket ban on gays. (The policy is known as the "Don't Ask, Don't Tell" policy, but it sounds like you don't need to tell many people about your sexual orientation to be kicked out of the military). It costs many thousands of taxpayer dollars to train a translator, and there are extreme shortages of translators for Middle-Eastern languages like Arabic, Urdu, and Farsi. Yet Congress enacted an inflexible ban on gays (somewhat misleadingly referred to as the "Don't Ask, Don't Tell" policy) with no exceptions. That has resulted in 58 Arab linguists being kicked out of the military. As social attitudes towards homosexuality have shifted, the original rationales for the ban -- such as "unit cohesion" -- have lost force. Ironically, even as Congress maintains the costly, discriminatory gan ban, Congressmen are busy pandering to political correctness by supporting the federal hate-crimes bill, which passed the House of Representatives last month. (Bush has hinted he may veto the bill). When it comes to discrimination based on sexual orientation, Congress does not practice what it preaches. The federal hate-crimes bill would subject hate crimes based on race, sexual orientation, and other characteristics to federal jurisdiction, even if they are unrelated to federally protected activities, violating the Supreme Court's decisions in United States v. Morrison (2000) and Jones v. United States (2000), which limited Congress's power to regulate under the Interstate Commerce Clause and the Fourteenth Amendment. The bill also raises civil liberties concerns. Its supporters, such as Janet Reno, have sought to use it to allow people found innocent of hate-crimes in state court to be reprosecuted in federal court. That takes advantage of a loophole in constitutional protections against double jeopardy that allows people found not guilty in state court to be reprosecuted in federal court. Supporters have all sorts of rationalizations for disregarding not-guilty verdicts. Hate-crimes activist Brian Levin, who testified before Congress, claims reprosecutions are needed because local jury pools are biased. NOW Legal Defense Fund told Congress that reprosecutions are appropriate if local prosecutors had "inadequate resources" or were of "questionable effectiveness." Given the politically-charged nature of many hate-crimes trials, Kimberly Potter of New York University was probably right when she told Congress back in 1998 that if the federal hate crimes bill is enacted, "the acquittal of [hate-crimes] defendants in state court will frequently trigger demands for federal prosecution." The defendants in the Duke lacrosse case, charged with an interracial rape, have been vindicated by DNA evidence and declared innocent by North Carolina's state attorney general. But their detractors, such as former John Edwards staffer Amanda Marcotte (who has repeatedly smeared critics of the federal hate crimes bill as being bigots) and radical activist Alton Maddox (who was involved in the Tawana Brawley hate-crime hoax), continue to insist that they were guilty of hate crimes, and that more hate-crimes laws are needed. For some people, it seems, hate crimes are so terrible that not even innocence should be a defense. Such people eagerly await passage of the federal hate-crimes bill.