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Rekindling 1.11 "Legal Perspectives and Moral Absolutes" [Mar. 1st, 2008|04:12 am]
The Real Thing


TITLE: Legal Perspectives and Moral Absolutes
SERIES: Rekindling
RATING: Teen Sam/Josh
SUMMARY: Set between IED and HSFTTT. Josh disagrees with a memo Sam writes on the hate crimes bill – and this one isn't opposition prep.

A/N: There are cases regarding hate crimes laws discussed in this fic by fictional names. They are intended to mirror actual cases that were decided in 2000 (a few months after this fic takes place) and 2003. If you're interested in those case, look up R.A.V. v. City of St. Paul and Virginia v. Black, respectively. As for other cases and legal principles referred to herein, they reflect the state of the law at the time of the episode. Amazing how much and yet how little has changed in the last 8 years.

Other Fics in the "Rekindling" Series:
1.03 Right and Wrong
1.05 A World Without
1.06 Fairy Boys
1.07 Looking Good
1.09 Privacy is Next
1.10 Good Guys, Special Friends, and Sexual Deviants

Donna walks in holding three file folders. “Okay, so you have a copy of SR-1148, Congressman Jennings rescheduled your meeting for tomorrow morning instead of tomorrow afternoon, here's a copy of the trade report, a memo Leo wants everyone to read before Senior Staff tomorrow, and a briefing packet on India-Pakistan. I think Larry and Ed were just glad to have more than a half hour to prepare this one.”

“Half hour's plenty.”

“To come up with something more in-depth than the population and life expectancy? Not really,” she replies as she sets the stack of folders on my desk. “And, with that, I'm going home.”

“What time is it?”



“I told you I needed to leave before midnight tonight,” she says with that impatient 'You know better than this' tone that I used to only get from my mother.

“...To go...pick up something?” I vaguely recall.

“I had to take my jacket to the tailor to fix the shoulder, and it's too far up Connecticut to run out and get during the day, but they're open until midnight on Thursdays so I have to go tonight.”

“Okay,” I nod. She leaves and I grab the first folder off the stack. It holds a memo on the hate crimes bill. Flipping to the last page, I skim the conclusion section first:

While the actions of these boys were clearly spurred by homophobia and aimed at taunting, terrifying, and ultimately taking a life, it would be premature to create an overarching mandatory penalty system for a class of crimes that is difficult to define clearly.

I grab my phone and punch in Sam's extension. He answers on the fourth ring, distracted like he always is in the weeks leading up to a big speech. “Yeah?”

“Get over here a minute?”


“Yes.” I hang up and wait five minutes for him to show up.

“What's up?” he asks, coming in the side door like only he ever does.

“You wrote this?” I ask, holding up the packet.

“I can't see what it is from here.”

“A memo on hate crimes laws?”

“Ah. Yes I did.”


He blinks. “Because Leo asked me to write, from a legal perspective-”

“What about from a moral perspective?”


“You're more concerned with the legal perspective than with whether it's right or wrong?”

“That's not what Leo asked me to do.”

“So it's opposition prep?” I ask.

“No. It's a different perspective that needs to be taken into account. It doesn't do us any good to pass a bill that immediately gets struck down by the courts.” It's times like this his lawyerly perspective drives me crazy.

“Why would it get struck down by the courts?”

“It's all a problem of wording,” he replies and sits across the desk from me. “How well do you remember Constitutional Law?”

“Depends on what area,” I hedge.

“There was a case that just came down last term – ACLU v. Wisconsin-”

“The cross-burning case.”

“Right. The Supreme Court struck down the Wisconsin law that prohibited burning a cross because it was viewpoint discrimination. It treated hate speech against blacks and Jews more harshly than hate speech against gays, women, or even against white supremacists and Nazis. The law was underinclusive and was struck down.”

“But that was speech, not action.”

“It's related,” Sam replies. “A case that was argued in October, Mississippi v. Edmonton I think was the name by the time it finished bouncing around the lower courts. A law prohibiting crossburning – conduct the Court has traditionally viewed as symbolic speech – said that burning a cross with the intent to intimidate someone constituted a 'true threat' and was therefore unlawful. But – and this was key at oral argument – the law read intent into the act itself.”

“So the act of burning a cross on someone's lawn...”

“Was presumed to be for the intention of intimidation,” he nods.

“That's a pretty poor writing of a bill,” I reply. “But I guess there aren't a lot of bill-writers who take up politics in Mississippi, so-”

He cuts off any Mississippi joke I could make. “If we pass this hate crimes law, if we try and make it as broad as we would need to in order to get support from enough groups on the left to balance out the opposition from the right, if we try to make it easier for victims and the families of victims to show that a group of guys assaulting a gay man is based on homophobia...our law's going to have to say the same thing. A presumption of intent behind every act perpetrated against a person belonging to that particular group. Every time a black guy gets beaten up by a group of white people, it's presumed that it was because of his race. No matter how rebutable the presumption, the courts are gonna strike that down.”

“The problem of trying to prove specific intent crimes,” I nod. “But we're not talking about guilt or innocence, we're talking about sentencing. Something tacked onto the prison term based on the severity and nature of the crime – like mandatory minimums, three strikes-”

“And since when is that something you're in favour of? Since when do we not favour judicial discretion?”

“Since this about keeping people ALIVE instead of regulating what a person does to destroy himself in his free time.”

“Josh. You know as well as I do that sentencing deterrents don't work. They don't work in the death penalty, they don't work in three strikes, they won't work here. Let's face it, the thirteen-year-old assailants who killed Lowell Lydell don't exactly have a stellar working knowledge of the law. They wouldn't know if they could get an extra ten years because they killed someone based on his sexual orientation. They don't care about the punishment. They want to hurt the guy, consequences are the last thing on their mind.”

“Maybe,” I sigh.

“There's another problem,” he offers.

“What other problem?”

“The intersection of speech and action.” He walks over and gets a bottle of water from my fridge. “You don't just want the actual assault to be punished, but the words said while the person's committing the assault, right?”

“You mean do I want punishment based on the guy calling out 'faggot' or 'die, Jew, die'?” I ask dryly.

“So which groups do you include?”

“That's not a good enough reason,” I reply.

“Court seems to think it is.”

“Except the courts have recognized that certain groups have been historically disadvantaged and targeted for discrimination, exclusion, and mistreatment by society. They allow affirmative action programs to consider race, gender, religion, and socioeconomic status as a factor-”

“One factor among many, with very specific limitations,” he replies.

“But still a factor.”

“So who do you include?” he asks again. “Race as a class, of course, aimed at protecting African Americans, Hispanics, Arabs...but what about a group of Latin kids who beat up the one and only kid in Marshall High School? He should be protected, right?”


“And Jewish people, of course, Muslims. Do we include Catholics or not? Bunch of them were killed in the Holocaust, too – not nearly as many as other groups, but they've been historically disadvantaged n the US, and the Klan has been known to go after them, too. So now it's everyone but Protestants? You can't write it that way, that's implicating the First Amendment about seventeen different ways-”

“So include everyone. Anyone who is targeted for their innate characteristics-”

“You know the problem with that as well as I do,” Sam shakes his head. “When they tried to put ENDA through two years ago-”

“...and the Republicans tacked on provisions prohibiting discrimination on the basis of hair colour and skirt length to voice opposition to the bill that was never going to pass,” I nod. “Did the same thing when we tried to pass a hate crimes bill five years ago, too – an amendment adding blonds and the elderly to the list of protected groups.”

Sam nods and takes a swig of water. “Adding hate crimes to murder statutes in states has slowed things down because now you have to prove what was in the assailant's mind. And in a lot of states they have 'gay panic' as a valid defense. How do you reconcile those two? The defendant can't avail himself of a legal defense because to raise the defense would incriminate him under federal law. Which is another constitutional issue.”

“Wouldn't the federal law supersede the state law's gay panic defense?”

“Probably, but it's something to take into account.”

I rub my eyes. “Hang on. Isn't it like when the courts passed federal civil rights legislation and it invalidated the state laws that said discrimination was allowed?”

“Right. Because it's not like those laws got tied up in lawsuits for a couple decades,” Sam replies in a passively-sarcastic tone.

“So that's what stops us now? Fear of litigation?” I demand. “What happened to doing what's right because it's right?”

“...That's not what this paper was,” he shrugs. “Leo asked-”

“I know what Leo asked. I'm saying you genuinely believe- I've seen you when you do opp-prep. This isn't it. This is you believing what you say.”

“...Yes,” he says finally.

“And you-” I stop, run my hand through my hair, and look at my watch. 11:49. The bullpen lights are dim, everyone on my staff's gone home, no sign of life from CJ's office. Probably only Toby's still here, he and Sam have been pulling all-nighters to get ready for the State of the Union. “Nevermind,” I sigh. “Let's get back to- You said it was-...” I run my hand through my hair, then rest my elbows on the desk, forehead in my hands. “If it's just a matter of-”

“Ask the question, Josh,” he says quietly.

“How can you not be in favour of this law?” I demand finally. “How can you- If we're walking down the street holding hands and someone sees and decides to kick your ass for it, don't you want the guy to be punished? The guy wouldn't be kicking your ass except for the fact that you were holding hands with another man, shouldn't that be taken into account?”

Sam blinks. “You would never, in either of our lifetimes, hold my hand while we walked down a street. Besides, a guy who kicks my ass because he wants to steal my wallet is going to do the same amount and type of damage as someone who's kicking my ass because I'm bisexual. Why should I care what words they shout at me while he does it?”

I don't understand it. I don't get how he can be so unconnected to it. How he can not worry about it?

All I've been able to see for the last two weeks are images of him dangling from a fence while teenage skinheads threw rocks and bottles at his head and called him a faggot.

They made the kid say 'hail marys' while they beat him. It was sport to them. It's hunting down creatures they see as less than human, things that aren't even worthy of basic human DECENCY let alone humane treatment.

If anyone tries to mess with Sam, I want them dead. I want them hunted down and killed, and anyone who cheers or says they were right or protests the funeral is going to be joining them.


I look at him slowly. “Yeah?”

“You okay?”

I rub my eyes. “They protested his funeral.”

“I know.”

“Hundreds of people standing across the street from the church with giant signs saying 'He deserved to die' and 'God hates sinners' and – oh, my personal favourite – 'Your son's in hell.' His parents had to see that.” I sigh and sink back in my chair. “As if funerals aren't horrible enough, they have to see signs cheering- If so much as one person would've made a lawyer joke when my father died, I would've slugged them. This guy's parents are either heavily medicated or saints. Just walked right past the protests.” I shake my head. “Oughta be a law against that one, too.” He opens his mouth and I hold up my hand. “First amendment. I know. But I don't-...there are times I almost want to limit it. Almost.”

“You can, actually.”

I stare at him. “What?”

“There are ways of making content-neutral laws. No protests within 1000 yards of a funeral. It means no protesting against a war at military funerals-”

“...and no protesting at funerals like this,” I conclude.

Sam grins and nods. “Valid time, place, and manner restriction. Restricts all speech on all topics, so it only requires the law to pass a rational basis test.”

“Permissible governmental objective of protecting the wellbeing of families of victims...rationally related to...”

“It's completely constitutional,” Sam confirms.

“So that could be something else we tackle while the profile's this high. While people are outraged about the whole thing. Well...not us, actually, but we can work with our guys in the states to get the ball rolling.”

“Yeah.” He pauses, then offers, “The hate crimes bill's going to pass for that same reason, you know. With or without my objections. Just a question of how much good it can actually do.”

“Isn't that always the question?”

“Sometimes,” he allows and glances at his watch. “I've gotta get back to-...seventeen days until the speech, so I was in the middle of-”

“Go ahead,” I nod.

He stands and heads for the main door, then turns back. “If someone killed you, I wouldn't honestly give a damn whether they did it because you're Jewish or because you used to date me or because you're a high-profile Democrat or just because you were in the wrong place at the wrong time. I'd want the bastard in jail for the rest of his life, and if I had to join the DA's office to make that happen, I would in a heartbeat.”

I blink. “...Thanks?” What do you say to that, anyway? “And, y'know, you too.”

Sam chuckles. “Thanks.” He shakes his head, smiling, and heads back to his office.