Wednesday, September 17, 2008

Bromfield v. Mukasey (9th Cir. - Sept. 15, 2008)

We get up on our high horse sometimes.

Let's not forget that as recently as five years ago, some of the United States still retained criminal statutes that penalized homosexual sodomy with up to twenty years in prison. And that within the last twenty or so years, even our highest Court approved such prosecutions. And that private violence against homosexuals on account of their sexual orientation is hardly unknown in the United States.

So, yes, I totally agree -- totally -- that discrimination (and especially violence) based upon sexual orientation is utterly intolerable, and that state-sponsored sanctions are profoundly unjust. But let's just keep in mind our own history -- as well as the present -- when we start talking (as Judge Betty Fletcher writes here) about what happens in other countries. I'm not saying she's wrong; indeed, there's a lot here that merits truly profound consideration. But I might nonetheless temper what we say about Jamaica here -- and how the situation there is utterly intolerable -- with simultaneous recognition that, in truth, our own practices (at least towards those who Tell) are not nearly as far afield as one might otherwise perceive from reading this opinion.

Parenthetically, I can easily imagine Jamaica making the following response: "What a minute. You take this holier-than-thou attitude because we're not as 'enlightened' as you are about sporadic morals legislation? How about let's take a break and also talk about, oh, I don't know, your self-declared 'war' on those who commit the outrageous sin of trying to get closer to God. Let's pile up the bodies on each side and see who comes out more clean."

None of which, of course, says that Judge Fletcher is wrong. I was just somewhat surprised not to see as much self-reflection and (at least cultural) modesty -- or at least a brief glimpse of it -- from an opinion written by someone who, in my opinion, in fact possesses both qualities in spades.