Take hate-crime legislation. Abortion rights. Religious liberty. Separation of church and state.
Michael Lieberman is a believer.
As the long time Washington counsel for the Anti-Defamation League, he defines, defends and declaims the ADL mission with passion and persistence.
He was in Denver this week to boost ADL leadership programs and to meet with top brass at the Air Force Academy, where the ADL has worked extensively over the past several years to free it of religious coercion.
Liebermans Washington office of ADL focuses on international and domestic issues. His bailiwick is mostly the domestic side: civil rights.
He does not travel often because the lobbying in DC is pretty intense. He will welcome emerging ADL leaders from around the country to a three-day conference in May.
Lieberman was the ADL point person on the Matthew Shepard and James Byrd Jr. Hate Crime Prevention Act, which he worked on for 13 years. He is proud to have been present when it was signed into law last October by President Obama.
I hope its never used, he says.
His professional focus, however, is to make certain that if the need arises it is used as intended.
AIR FORCE ACADEMY
Many officers and cadets at the Air Force Academy are religious Christians who have, many charge, exploited their rank to coerce Jews and others to listen to proselytizing pitches.
The problem is, in the military one may not simply walk away. In the military, ones entire career may be ruined by a higher ranking officer who is upset that his attempts at religious conversion are rejected.
For this reason, the ADL and others have tried to sensitize the Air Force to the need to respect differences, including the different beliefs and practices that Jews hold.
In Liebermans view, the problem at the Air Force Academy is a classic example of turning a negative into a positive.
He compliments local ADL head Bruce DeBoskey for handling the AFA issues in very good way, actually turning the academy into a model for how it now teaches about religion.
Theres a tricky balance here. People, including military personnel, have First Amendment rights. They have the right to preach their religion. The burden of the ADL is to protect those rights while making certain ones equal right to refuse to worship at all, or in a way one does not wish, is also protected.
Put bluntly: the military officer has a right to preach conversion, and the cadet has the right to say no.
For ones superior officer even to raise the spectre that ones career path may be determined by how one responds to a conversionary pitch is a very dangerous thing, says Lieberman.
The standard is not just whether this is a criminal act. A boundary is crossed in that situation.
If its Airman first class to Airman first class, thats very different from superior officer to cadet.
But why cant a superior officer coerce a cadet to listen?
Its all about atmosphere and context, says Lieberman.
Were not talking about free speech rights, like we have on the outside. The Air Force Academy is a special place with a very distinct hierarchy. In that environment, religion can be very explosive. Every person has the right to his own beliefs and practices. Where does your right end and the others guys begin?
The lines of authority are very different in the military than even in a workplace.
I ask for an analogy within the military to proselytizing.
Lieberman says: sexual harassment.
Its OK to say, would you like to go out with me? Do you have a right to say that? Yes. But coercion, no.
When the Air Force Academy realized it had an issue around sexual harassment, it did a climate survey, with the questionnaire given to all officers and cadets at the AFA. It was anonymous and detailed.
The survey found that the academy had a serious problem with sexual harassment. Then, the academy did a different climate survey, this time on religion, and found it also had religious issues.
People felt empowered to come forward. A task force was set up. There were hearings in Washington. Remedial actions were undertaken.
And now, says Lieberman, the situation at the academy is so much better than it was before. The Air Force demonstrated in a very material way that it takes this issue seriously, and has taken steps to avoid problems in the future. Now theres a base calender. Among the things on it: Jewish holidays.
This will have an impact way beyond the Air Force Academy, says Lieberman.
These are the future leaders of the Air Force. Its shaping the mindset of people who will be the leaders of the Air Force for next 40 years. Now the AFA has an atmosphere of respect for and acceptance of differences.
CHURCH AND STATE
Why is the separation of church and state so important to ADL? Lieberman gives two reasons.
Jews in America are more secure, safe and prosperous than any other Diaspora community in history because of (1) democratic pluralism the acceptance of differences and (2) the separation of church and state.
Church-state separation, he says, is unknown in world history. It has no modern day precedent. No historical parallel.
This is the principal safeguard for Jewish security in America, he says.
Well, then, does he object to menorahs on public property?
We do not support it, says Lieberman. And we would oppose a nativity scene in City Hall.
But there is a nativity scene at Denvers City Hall, because it is defined under the law as, in part, secular.
The nativity scene can never be defied as secular, says Lieberman. We dont believe that a nativity scene can be secularized. We litigated that case and lost.
Likewise, he believes that an unadorned menorah at the heart of a government location is unconstitutional. A City Hall is different from a city park. And, says Lieberman, he is not aware of a single unadorned menorah in a city hall anywhere.
HATE CRIMES PENALTIES
Most hate crime laws add a penalty for a crime that is the result of hate. Rob somebody thats one penalty. Rob him and hang a swastika or burn a cross on his door thats a higher penalty. The ADL, says Lieberman, is a big fan of hate crime laws and drafted the model legislation in 1981-82. The paradigm works, he says.
I am not a fan of hate crime laws. I think they are divisive and counterproductive and do not work. So I invite Lieberman to provide a rationale for hate crimes laws.
He quickly distinguishes between those hate crime laws that are penalty enhancement laws, and those that are not. The federal Shepard and Byrd hate crime law, for example, is not a penalty enhancement hate crime law. More on that below.
Lieberman says, You can [i.e., it is legal to] hate someone. You can have a blog to express your hate. But you cannot act on that bigoted belief. You can shout it on the sidewalk. Hand out fliers. But you cannot act on that belief. So if you write on a synagogue, Jane loves Bobby, in 45 states you can be charged for criminal trespass. But if you write: Hitler did not kill enough Jews, theres penalty enhancement.
These crimes are so odious that there will be a sanction put on them.
Society is saying, these are message crimes. To burn a cross on your lawn sends a message. A black family moves into a previously all white neighborhood, and a cross is burned on the property. This is arson. Its criminal damage but it is also a message of hate to a whole group. And that message justifies penalty enhancement, says Lieberman.
However, as Denver Post columnist Vince Carroll has pointed out, if someone is raped in a neighborhood, that also sets a whole group on edge, not just the individual victim. Many crimes send a message. But only hate crimes are singled out for privileged treatment under the law, i.e., penalty enhancement.
More fundamentally, the issue is this: What best stops hate crime?
By singling out a hate crime with a penalty enhancement, society reinforces the stigmatized identity of the hated group. Hate crime laws balkanize society.
Lieberman calls hate crimes domestic terrorism. He is right. He says, Not to give weight to the domestic terrorism aspect of the crime would be wrong.
To me, the point here is not to score high on a right-and-wrong index; it is to reduce the incidence of the crime. By reinforcing groups stigmatized for triggering enhanced penalties for crimes against them, society breaks down human solidarity; the object of the hate is perpetuated as public and privileged, not rendered more safe.
I do agree with Lieberman that, when it comes to hate crimes, the best way to treat it is to prevent it in the first place. That is a multifaceted process and the ADL works hard in many ways to reduce hate. Hate crime laws achieve the opposite by perpetuating the image of a given group as victimized.
After all, the ADL favors a strict separation of church and state. The ADL says that when religion flourishes or fails on its own, entirely separate from a special government benefit, society is the most free. This same level of freedom is best achieved by denying identifiable groups of victims a special government benefit: penalty enhancement.
Lieberman retorts that with a hate crime, something else is going on. He is right. There is. But it does not necessarily follow that penalty enhancement reduces the something else. I think it worsens it. Hate crime laws generate or intensify resentment toward groups privileged by the law. Theres a qualitative difference between resentment and hate.
HATE CRIMES FEDERAL
Lieberman makes the fascinating point that the Shepard and Byrd hate crime law is not a traditional hate crime law in this sense: It has no penalty enhancement clause.
Rather, it increases the categories of groups that it is illegal to discriminate against. In my view, this produces still more Balkanization and, in some cases, fails to defend the precepts of the Torah.
But the law accomplishes something else, which is important. Lieberman tells a fascinating story.
Yankel Rosenbaum was murdered in Crown Heights in 1991 (the most disturbing hate crime against Jews in the last 20 years).
Rosenbaums murderer was acquitted.
Here is Liebermans two-minute version:
In 1968, Lieberman begins, if you were a black man in the south and you were the victim of a crime, it is possible or likely that police would not investigate and prosecute that crime. So the federal government passed a law giving itself the authority to prosecute when state or local governments would not if you were attacked because of your race, color, etc., and if you were engaged in a federally protected activity, such as voting.
Well, in the Yankel Rosenbaum case, the Attorney General of the US, when asked to prosecute because the local authorities, in effect, failed to do so, asked: Where was the federally protected activity?
All he was doing was running down the street in Crown Heights, trying to escape his murderer.
Lieberman explained that it was actually, and successfully, argued that because the local street was ultimately connected to a highway, and because highways ultimately cross state lines, Rosenbaum was engaged in interstate travel.
So, in the federal court, the murderer, Lemerick Nelson, was convicted. This was upheld by New Yorks second circuit court of appeals.
Even though this line of argument worked in the Yankel Rosenbaum case, it is a very thin argument. The achievement of the Shepard and Byrd act was the removal of the requirement of engaged in a federally protected activity from the law allowing the federal government to prosecute if local governments fail to do so.
TERRORISM
The ADL is currently watching a court case on material support for terrorist organizations. The ADL feels so strongly that it filed a brief.
The State Department has designated 43 terrorist organizations, such as Hamas and Kahane Chai, says Lieberman.
To give those organizations a dime is a federal crime.
This statute is being challenged. Money is speech. We see that from campaign financing laws. The claim is being made that to give money for a Hamas kindergarten in Gaza is a free speech issue.
Material support means more than money. It means, for example, to buy blankets for a Hamas hospital.
The plaintiff is a Kurdish organization in Humanitarian Law Project vs. Holder. The Kurds want to provide material support to Kurds who are terrorists.
ABORTION
I ask Lieberman: How is the right to an abortion connected to the ADL agenda?
Not via privacy rights, he says, which is how Roe v. Wade defines the right to an abortion.
Rather, abortion, to the ADL, is a matter of religious liberty.
The government should not tell us when life begins. There is a halachic definition. It should not be imposed on others. If the president of the US believes that life begins at conception, he should not impose that view.
Choice is a religious liberty issue. The government should not choose one particular religious belief on when life begins.
Because the purpose of parental notification statutes is to restrict access to abortion, the ADL opposes them.
The ADL also does not support restrictions on late term abortion.
I ask Lieberman: Is there not something absurd about allowing abortion after a time when a fetus can, and does, survive outside the womb and grow into a normal human being? Hasnt the science outdistanced your rationale on opposing late-term abortions?
Lieberman wasnt buying it. Any restriction on abortion, he believes, is a violation of religious liberty.
ADL MOMENT
Lieberman says that now is a distinct ADL moment.
It is a time when we have an opportunity to play a central role on so many of most important issues coming up in Washington.
How to deal with opponents with civility I saw your [recent IJN editorial] suggestion to get people to read more but the lack of civility in Washington is extraordinary.
Thats why we did the rage report.
Also, now is an opportunity for us to be in a central place on religious liberty, immigration reform, workplace religious freedom. We are in a position to speak truth to power.
If youre having a press conference and theres a gigantic banner of Auschwitz you need to speak out on that. All of Republican leadership was at this conference talking about the health care bill. In the audience were some anti-Semitic signs including a huge banner with dead bodies from Auschwitz.
You had a responsibility to say: This was totally over the line.
The ADL has the ability to speak out against defamation of all kinds.
