Bell Curve The Law Talking Guy Raised by Republicans U.S. West
Well, he's kind of had it in for me ever since I accidentally ran over his dog. Actually, replace "accidentally" with "repeatedly," and replace "dog" with "son."

Thursday, November 08, 2007

The Beginning of the End for ENDA

The US House of Representatives voted 235-184 yesterday to pass the Employment Non-Discrimination Act (ENDA) H.R. 3685. The bill now goes to the Senate, where supporters believe they have 51 votes, but may lack the 60 votes necessary to bring the measure to the vote. And it is almost certain that President Bush would veto it. Still, it was a hard-fought victory and it is a historic day.

Shortly before the vote was taken, the bill's sponsor and author, Rep. Barney Frank, turned away a last-minute attempt by Republicans to delay the bill yet again by a parliamentary maneuver. (Frank had first proposed such a bill in 1972 and has fought for similar measures ever since. ) I like what Frank said as he urged the House to finally bring ENDA to a vote.

Mr. Speaker, we say here that we don't take things personally, and usually that is true. Members, Mr. Speaker, will have to forgive me. I take it a little personally...

[H]ere is the deal. I used to be someone subject to this prejudice, and, through luck, circumstance, I got to be a big shot. I am now above that prejudice. But I feel an obligation to 15-year-olds dreading to go to school because of the torments, to people afraid that they will lose their job in a gas station if someone finds out who they love. I feel an obligation to use the status I have been lucky enough to get to help them.

I want to ask my colleagues here, Mr. Speaker, on a personal basis, please, don't fall for this sham. Don't send me out of here having failed to help those people... What you have is a ploy by people who want to keep discrimination on the books, who want to deny protection to so many vulnerable victims of discrimination, but they at least understand that is not something you can say explicitly. So they give us this sham...

Yes, this is personal. There are people who are your fellow citizens being discriminated against. We have a simple bill that says you can go to work and be judged on how you work and not be penalized. Please don't turn your back on them.

As when the California State Legislature twice passed a bill authorizing same-sex marriage (and Gov. Schwarzenegger twice vetoed it) it was in part due to personal pleas of gay and lesbian legislators to their colleagues. This is why "coming out" is so important.

Now, I know many gay and lesbian rights groups were unhappy that Frank removed from the final bill language that would have protected gender identity as well. But it was the right call since that sacrifice was necessary to secure passage of the rest of the bill. (There was no mention of same-sex marriage, adoption, or other rights in the bill, though I am sure he would have liked to ask for those too.) It's a start. At long last, the struggle for ENDA is moving toward and end.


Charlotte said...

ENDA is a beginning. It makes legislators actually mention the Gay word on the House floor. Check out our trailer on Gay Marriage. It sheds some light on the situation. Produced to educate & defuse the controversy it has a way of opening closed minds & creates an interesting spin on the issue:

The Law Talking Guy said...

I agree that omitting the transgender people was unfortunate, but not a "sellout." There is no reason that transgender people and gay people must have their rights linked, and no reason that gays should give up the possibility of legislative action on their behalf just because the legislature remains too bigoted to handle transgender individuals also.

Dr. Strangelove said...

In a way, though, there is a reason why transgender and gay people should be linked: it is almost always the same people who bear prejudice against them. To many in the LGBT community, it is sort of like saying "we're fighting for the rights of blacks, but latinos are on their own."

Raised By Republicans said...

Dr. Strangelove and LTG are making me think of this in an interesting way - thanks guys. On the one hand LTG says there's no reason to link gender identity and sexual preference with regards to an anti-discrimination bill.

On the other hand Dr. S. rightly points out that the perpetrators of the prejudice against both groups are the same.

And something else Dr. S. mentioned made me think. Discrimination against all groups (racially, sexually, or politically defined) is usually perpetrated by the same bunch of people. There is a psychology of bigotry.

To discuss bigotry of any kind in terms of the groups being discriminated against serves to distort the nature of discrimination and implicitly blames the victims.

But on the other other hand there are sound policy reasons to legislate on anti-discrimination in stages.

The Law Talking Guy said...

Under our law, discrimination statutes are written to protect "suspect classes" of individuals. The emphasis is necessarily on the characteristic of the victim, not the perpetrator. The statutes directed to perpetrators are called Hate Crimes laws. Those are widely criticized as punishing thoughts rather than deeds (I disagree that this is fatal, but I see the point).

Bob said...

I completely agree with RbR that Dr. S's directing attention to nature of the perpetrators, rather than that of the victims was eye-opening.

LTG, I thought that to some extent what you say is true, but also to some extent discrimination statutes refer not just to particular groups that need protection (like blacks or Jews) but to particular _forms of categorization_ that we demand not be used to discriminate (like "race" or "gender" or "national origin").

For reasons I cannot adequately explain, I'm going to talk out of my hat right now.

My understanding of Hate Crimes laws (which, like most of my understanding of law, comes from Law & Order) is that generally a crime is committed anyway, but it's punished more severely if the intent was to terrrorize a protected/suspect class of people.

This seems to me to be little more than treating the state of mind of the perpetrator as an aggravating factor, or taking into account that some mens are more rea than others.

So long as the thoughts resulted in deeds, it seems established (in degrees of murder, anyway) that the nature of those thoughts have an effect on how the deeds are punished.

Raised By Republicans said...

I think the origin of hate crimes legislation is rooted in questions of local autonomy and oversight.

Federal authorities could not rely on local prosecutors and courts to charge and convict people - even those caught red-handed committing murder - of crimes against persecuted groups. Consider the Greensboro Massacre. A mixed race group of leftist union organizers were attacked by a heavily armed group of KKK members, five of the union activists were killed (including a distant relative of mine). The entire bloody event was caught on video tape and you could actually see several of the KKK men level their weapons and fire the fatal shots. None were convicted in the local courts.

Federal hate crimes legislation was designed to provide an alternative venue for this sort of case. Since Federal courts cannot overturn a non-conviction on appeal, the only way to prosecute people sometimes is by creating a seperate law to charge them on. One that places the crime under federal rather than local jurisdiction.

Tyrrany of the majority always seems most common and most pernicious at the local level in this country.

The Law Talking Guy said...

Bob, you misunderstood me. No laws say you can't discriminate against "blacks or jews." They all say forms of classification, race, religion, gender, etc. So you were not correcting me.

I think, however, you believe that if ENDA mentions "gays" or "transgender individuals" it is referring to particular groups, as if it said "blacks" or "jews." I think that referring to "sexual orientation or transgender status" is in keeping with types of discrimination rather than specific groups. Much as the ban on gender discrimination was intended exclusively for one group (women), so this is also a matter of phrasing perhaps more than substance.

As for the discussion of mens rea , I'm not sure this is quite accurate. Traditionally, the "mens" part is the level of culpable knowledge of the act. Lawyers (and you may be one, Bob, so I'm addressing this to the non-lawyers on the blog) speak of the requisite "mens" with various terms: negligence, gross negligence, recklessness, extreme recklessness, knowledge, scienter, purpose, specific intent. These are presented roughly in order of culpable knowledge. The idea is to connect the mental state with the act. To simplify: Murder, for example, requires an intention to kill; manslaughter requires an intention to commit reckless acts that you know may result in death, without requiring the prosectuion to prove a desire to kill.

None of these "mens rea" states inquire as to the motive for the crime. Hate crimes do. A person who intends to kill because he is motivated by hate (Matthew Shepard's attackers) is punished more than one who intends to do so because he is motivated by greed (robbery). Our statutes have never worked this way before, examining only the intention of the person to achieving the result of his or her act.

I happen to agree with Hate Crimes legislation because I think it falls in line with a concept such as felony murder (the rule that any person involved in commission of a felony, e.g., armed robbery, is equally guilty of any murder committed even if he or she did not pull the trigger - so the getaway driver can get the chair too). It's not a perfect analogy, but it suggests that the mens rea requirement even specific intent crimes can include evil intentions not specifically related to the act being punished.

The Law Talking Guy said...

RBR - most hate crimes legislation is state legislation. Many critics of federal hate crimes legislation criticize precisely the federalization of crimes that are traditionally not part of federal jurisdiction. I tend to agree. The hate crimes legislation, I think, has come rather later than the crimes you describe. Federal RICO statutes actually provide a lot more of the federal jurisdiction you describe.