USCCR has one standard for most protected groups, but another for military families
Members of the USCCR pictured with Gov. Tome Ridge (SSG, USA) taken November 2019, the same month USCCR released their hate crimes report.
As I have written previously, the US Commission on Civil Rights (USCCR) excluded Section 4712 of the Hate Crimes Protection Act (HCPA) of 2009 from their November 2019 report “In the Name of Hate: Examining the Federal Government’s Role in Responding to Hate Crimes.” Section 4712 created protections for servicemembers and their families for five years following discharge.
The closest I could get to an explanation for why the Commission denied military families equal representation in their report came from Maureen Rudolph, General Counsel and FOIA Manager for USCCR. In an email, she told me that the Commission “does not have any authority or jurisdiction to address the civil rights of veterans” or servicemembers because they are not listed in 42 USC §1975a.
This claim is problematic because the Commission has shown to have a permissive, rather than restrictive, reading of §1975a. A restrictive interpretation of the law to exclude military service is inconsistent with the Commission’s history, suggesting current Commissioners (or Ms Rudolph personally) have one standard for most protected groups and another standard for military communities.
USCCR’s Record on Military Service
First, there is the precedent set by the May 31, 2013 hearing, “Is the federal government adequately protecting the civil rights of our veterans and servicemembers who have fought for our rights?” This project originated sometime before April 19, 2013, when business meeting notes disclose plans to address “the Adequate Protection of the Civil Rights of Veterans and Service Members Briefing.” A May 10, 2013 press release called it a “Briefing on Protecting the Civil Rights of our Veterans and Service Members.” The briefing never produced a report, but it does establish that veterans and servicemembers are well within the Commission’s assumed authority.
If a minority of Commissioners felt this briefing exceeded their jurisdiction, then there should be notes or other internal deliberation documenting their dissent. As a federal agency collecting taxpayer money, that information is subject to the Freedom of Information Act (FOIA). With that in mind, I filed a FOIA request on January 20, 2020, but Rudolph has yet to provide me with anything in response to my request.
USCCR’s Permissive Interpretation
Secondly, the Commission has interpreted its own legal authority and jurisdiction permissively, rather than restrictively. The USCCR appears to exclude military families even though it has opined on categories outside §1975a. To name one, the Commission added “sexual orientation” to its jurisdictional categories in their 2011 report on bullying. Then, as now, §1975a only admits “sex” to the Commission’s jurisdiction. “Sex” was added as a basis for protection to the 1964 Civil Rights Act by Howard Smith, a conservative legislator. He supposedly hoped to “break the piggy’s back” by pulling in enough conflicting interests to kill the bill. It was not until 2020, in Bostock v. Clayton County, that the Supreme Court decided that “sex” includes “sexual orientation.” In 2011, nine years before Bostock, the USCCR interpreted §1975a permissively by pulling categories in, such as “sexual orientation,” rather than pushing them away. Why the sudden change of procedure with military families and Section 4712 of the HCPA?
42 USC § 1975a doesn’t have to explicitly include military families for the Commission to pull them into its authority and jurisdiction. For one, the USCCR has already assumed jurisdiction for servicemembers and veterans by committing time and resources to them (however mismanaged) in 2013. Furthermore, departing from its permissive legal interpretation to avoid protecting military communities creates a double standard. But more importantly, SCOTUS’ decision in Bostock suggests they don’t have a choice.
Legal Standard
USCCR preempted SCOTUS in interpreting “sex” as inclusive of “sexual orientation.” With Bostock, regardless of how language enters the law, even single words of just three letters, the law is the law. Just as the Smith Amendment added “sex” to the Civil Rights Act of 1964, Jeff Sessions added military service as Amendment 1616 to the Hate Crimes Protection Act of 2009. Sessions opposed federal protections based on sexual orientation and gender identity, so his “Soldiers Amendment” was probably an attempt to frustrate the bill and divide its support.
Introducing his amendment, Sessions said its intent was to put “members of the U.S. military on equal footing with other protected classes.” The Senate voted unanimously to add it to the HCPA just moments later. Senate Armed Services Committee Chair Carl Levin reiterated that the Soldiers Amendment would create “a hate crime that is of particular interest to the armed services.” When the HCPA was signed into law by President Obama, Sessions’ Soldiers Amendment appeared in as Section 4712. It is now 18 USC § 1389.
It doesn’t matter how confusing or ill-conceived Sessions’ amendment was, it is now the law of the land. There is little record of Smith’s 1964 intent with adding the word “sex” to the Civil Rights Act, but Bostock suggests intent doesn’t matter. With the Soldiers Amendment, we do have the intent, and a strong case can be made, independent of the Commission’s own historical and legal precedent, that 18 USC § 1389 describes nothing less than hate crimes.
Unfortunately, the USCCR is the rule rather than the exception; no federal agency has enforced the decade-old law. The Department of Justice has ignored a Congressional inquiry into this matter, and its Servicemember and Veterans Initiative makes no mention of it on their website. But this is no excuse for other federal agencies to ignore protections for military families. Regardless, the USCCR should follow precedent, federal law, and Congressional intent by treating the military with as much diligence and concern as other vulnerable populations. Ms. Rudolph and Chairwoman Lhamon should rescind and revise their 2019 hate crimes report to include hate crimes against military families.
