an unanticipated consequence of
Jack M. Balkin
Jack Balkin: jackbalkin at yahoo.com
Bruce Ackerman bruce.ackerman at yale.edu
Ian Ayres ian.ayres at yale.edu
Mary Dudziak mary.l.dudziak at emory.edu
Joey Fishkin joey.fishkin at gmail.com
Heather Gerken heather.gerken at yale.edu
Abbe Gluck abbe.gluck at yale.edu
Mark Graber mgraber at law.umaryland.edu
Stephen Griffin sgriffin at tulane.edu
Bernard Harcourt harcourt at uchicago.edu
Scott Horton shorto at law.columbia.edu
Andrew Koppelman akoppelman at law.northwestern.edu
Marty Lederman msl46 at law.georgetown.edu
Sanford Levinson slevinson at law.utexas.edu
David Luban david.luban at gmail.com
Gerard Magliocca gmaglioc at iupui.edu
Jason Mazzone mazzonej at illinois.edu
Linda McClain lmcclain at bu.edu
John Mikhail mikhail at law.georgetown.edu
Frank Pasquale pasquale.frank at gmail.com
Nate Persily npersily at gmail.com
Michael Stokes Paulsen michaelstokespaulsen at gmail.com
Deborah Pearlstein dpearlst at princeton.edu
Rick Pildes rick.pildes at nyu.edu
Alice Ristroph alice.ristroph at shu.edu
Neil Siegel siegel at law.duke.edu
Brian Tamanaha btamanaha at wulaw.wustl.edu
Mark Tushnet mtushnet at law.harvard.edu
Adam Winkler winkler at ucla.edu
Disturbing reversal of hate-crime convictions in Amish hair-cutting case
Yesterday a divided panel of the U.S. Court of Appeals for the Sixth Circuit overturned the convictions of 16 members of the Bergholz Old Order Amish community in Ohio under the 2009 federal hate-crimes law, even though it was undisputed that over a three-month period in 2011, the assailants--under the direction and approval of the Bishop of the Bergholz community, Samuel Mullett--attacked nine other Amish individuals by forcibly slicing off the men’s beards and cutting the women’s hair. A critical part of the majority's decision is based upon its conclusion that the evidence did not necessarily prove that the victims' religion was a but-for cause of the assaults. That conclusion strikes me as untenable--indeed, deeply disturbing in its implications. I'm curious whether others have a similar reaction.
That the assaults in question all occurred over a short period, to these particular nine individual victims, and in this particular manner, was no coincidence: They came in the wake of a profound rift within this particular Amish community. Mullett had excommunicated several church members for challenging his leadership. As the court notes, the general rule within the Old Order Amish religion is that if a community excommunicates a community member, all other Old Order communities also must excommunicate him until he obtains forgiveness from the community that first shunned him. Several of the excommunicated members of the Bergholz community, however, sought admission in other Amish communities without obtaining permission from Mullett, claiming that this was an unusual case in that Mullett had acted improperly. This precipitated a very unusual national crisis within the order, and 300 Amish bishops from all over the country convened in September 2006 to address the issue. Those 300 bishops voted unanimously to reverse the Bergholz excommunications.
Mullett was angry, to say the least, about this turn of events, in which he was so thoroughly rebuked by the entirety of the national church. The series of assaults then followed, under Mullett's direction. The victims were all Amish individualswho were apostates in Mullett's view: some had been excommunicated from the Bergholz community, others had left because of the excommunications, and still others had helped those Bergholz-shunned Amish by reversing their excommunications or by helping them leave Bergholz. And the assaults all took the same form: forcibly cutting the victims' beards and hair. As the court notes, Amish men do not trim their beards, and Amish women do not cut their hair, "as a way of symbolizing their piety, demonstrating righteousness and conveying an Amish identity."
The 16 defendants were convicted under 18 U.S.C. § 249(a)(2)(A), which makes it unlawful to willfully caus[e] bodily injury to any person . . . because of the actual or perceived . . . religion . . . of [that] person.” The trial court instructed the jury that the government could satisfy the mens rea element--that the defendants caused bodily injury "because of" the victims' religion--by showing that “a person’s actual or perceived religion was a significant motivating factor for a [d]efendant’s action,” “even if he or she had other reasons for doing what he or she did as well.”
The court of appeals holds that this instruction was improper--that, in fact, the government must prove that the victim's religion was a "but-for" cause (not merely a significant motivating factor) of the defendant's violent assault. I haven't studied this statutory question carefully, but for purposes of this post I'll assume that the court's legal conclusion is correct and that the jury instruction was improper: At a minimum, Judge Sutton's majority opinion makes a strong case for it, and all three judges on the panel agreed to that extent.
The government argued, however, that any such error in the instructions was harmless, because the evidence was uncontroverted that the victims' religion was a but-for cause of the assaults. That's where the panel splits. The dissenting judge agrees with the government that the evidence of "but-for" causation was undisputed; but the two judges in the majority hold otherwise.
It turns out that, as to each of the four discrete instances that were the basis of the convictions, the particular members of the Begrholz community who engaged in the assaults also testified that they had other reasons--such as commonplace disputes and resentments that occur among family members of all religions--for being angered toward their victims, and that these nonreligious reasons were what precipitated them to assault the victims. The majority of the court of appeals concludes that a properly instructed jury might have found that these nonreligious reasons were the but-for causes of the assaults--that the assaults might have occurred regardless of the victims' religion--and therefore remands the case for a possible retrial.
Based solely on the undisputed facts described in Judge Sutton's opinion, this reasoning strikes me as deeply counterintuitive. For one thing, it appears to be clear that at least some of the victims--those who were excommunicated or who left voluntarily, at a minimum--would not have assaulted but for the fact that Mullett viewed them as heretical. (Mullet said that beard and hair cuttings would stop people from being “Amish hypocrites.”) And that's true even if the particular assailants were motivated in the first instance by other factors, such as interfamilial disputes or anger about nonreligious actions of the victims. As I understand it, the undisputed evidence shows that the assailants conformed strictly to Mullett's direction; and presumably he would not have allowed, let alone encouraged, them to assault their victims had the victims remained members in good standing within the Bergholz religious community.
But even putting that aside, the idea that the victims' religion might not have been a but-for cause of these assaults is open to serious question. Let's assume, for the sake of argument, that the assailants might have assaulted their victims regardless of their religion--that is to say, that they would have assaulted them even if the families had been Episcopal, or athiest, or members of an Old Order Amish community that had not suffered the rifts that occurred in Bergholz.
Even so, isn't it plain beyond any doubt that the victims' religion was a but-for cause of the type of bodily injury that occurred here--the cutting of beards and hair? The assailants obviously chose to use that very unusual form of assault because the hair and beards were of deep religious significance to the victims--indeed, to strike at a fundamental component of their religious identity, by deliberately imparting a tangible, humiliating public sign that the victims were religious outcasts.
The majority doesn't dispute this: It acknowledges that if the victims had been any religion other than Old Order Amish, the assaults, if they occurred at all, would not have involved hair- and beard-cutting. Even so, the two judges in the majority appear to be of the view that that doesn't matter, since the assailants might have had nonreligious reasons--"motives"--to assault their victims. Here is the extraordinary hypothetical analogy that the majority offers to demonstrate its point:
[G]iven that this is the Matthew Shepard Act, imagine that a child tells his parents he is gay. As a result of their faith, the parents ask the child to undergo reparative therapy. The child resists, the parents dig in, all three fight verbally about everything from faith to family obligations. At some point, the child snaps. He assaults the parents and does so in a faith-offensive way—by physically forcing them to eat non-kosher food, by tattooing 666 on their arms or by taking some other action that deeply offends their faith. No doubt faith entered the mix from both sides of the assault, but there is doubt about whether the parents’ faith broke the camel’s back in terms of why the child committed the assault. That the means of assault involved religious symbolism confirms only that he knew how best to hurt his parents. It does not seal the deal that his parents’ faith, as opposed to their lack of support for him, was a but-for motive of the assault.
In other words, the majority is of the view that where someone decides to assault someone else for nonreligious reasons--where, in the majority's words, a nonreligious ground was the motive for the assault--but specifically chooses to physically force the victims to violate their religious precepts as a way of hurting them in a fundamental way that a mere ordinary assault could not, the victims' religion is not a "but-for" cause of the bodily injury.
That the court chose to use the "forcing them to eat non-kosher food [or] tattooing 666 on their arms" hypothetical to demonstrate its point is, I think, chilling. More to the legal point, can this possibly be a proper reflection of congressional intent? I doubt it (and the majority doesn't offer any statutory analysis on this score). Indeed, it would be remarkable if the federal hate-crimes law did not cover such a case. After all, and as the court of appeals notes, the Supreme Court has explained that a government can "punish 'bias-inspired conduct' without offending the First Amendment because bigoted conduct 'inflict[s] greater individual and societal harm'" (quoting Wisconsin v. Mitchell). In the Amish case--and in the court's hypothetical--the assailant's deliberate choice to physically force the victims to violate their religion, and to do so in a way that is designed to leave a conspicuous public sign of their religious transgression, obviously inflicts much greater "individual and societal harm" than if the assailant had chosen merely to, say, strike the victim in the face, as in an ordinary assault. And that is so regardless of whether the fact of the assault was motivated by the victim's religion. The victim's religion plainly is a "but-for" cause of the way in which the "bodily injury" was inflicted, and the but-for cause of the special and distinctly acute harm in such cases that distinguishes them from ordinary assaults.
Allow me a hypo of my own: Assume an employer who has a strict no-tardiness rule--employees must always be at work on time. Whenever any employee violates the rule, the employer chooses a sanction specially designed to punish and to change that particular employee's behavior. One employee is habitually late. There is no question at all that the employer chooses to punish her because of her tardiness, just as he has punished every other employee who has broken the rule. This particular employee is an observant Jew, and so the employer -- in order to effectively deter her from being tardy again -- sanctions her by requiring that she eat pork and shrimp for lunch in the company cafeteria every day for a week. Has the employer thereby violated Title VII, which forbids discrimination "against any individual with respect to his compensation, terms, conditions, or privileges of employment, because of such individual's . . . religion"? Would the employer have a defense if he could show that it was the employee's tardiness, not her Judaism, that prompted him to sanction her--i.e., that she would have been penalized in one way or another regardless of her religion?
I hope the answers to these questions are self-evident . . . but under the rationale of the Sixth Circuit majority, they wouldn't be.
Perhaps the majority chose to reverse the convictions on this ground because it wished to avoid the important constitutional question that the case had raised--namely, whether Congress had the power under the Commerce Clause to proscribe the discriminatory assaults under the facts of this case. [Disclosure: This is a question on which I opined while I was at the Department of Justice.] But, if so, this was hardly the ideal way of avoiding that question--and, in any event, that constitutional question will be raised anew if, as is likely, the defendants are retried. Posted
by Marty Lederman [link]