Ed Brayton is a journalist, commentator and speaker. He is the co-founder and president of 
The Thomas More Law Center looks to continue its perfect record of provoking amusement and exasperation on the part of judges by filing a bizarre lawsuit against Eric Holder for the passage of the hate crimes bill. Why would you sue an executive branch official for the passage of a bill by Congress? Good question. Don't hold your breath waiting for a good answer.
Like most TMLC lawsuits, the complaint (PDF) is little more than a recitation of political boilerplate language, the kind of thing that really tends to irritate judges. This case never makes it past a motion for summary judgment - and that's assuming it isn't dismissed before that point on standing grounds.
The plaintiffs in the case are Gary Glenn, president of the Michigan chapter of the American Family Association, and a bunch of ministers, all of whom, the complaint says, "publicly oppose homosexual activism, the homosexual lifestyle, and the homosexual agenda." And they seem to think that the fact that they don't like this law and think it might lead to bad things gives them standing to sue.
The complaint doesn't even pretend that the plaintiffs have ever been charged under the hate crimes law, or even been investigated under it - for the obvious reason that, under that law, an actual crime has to have been committed before invoking the provisions allowing federal aid for a hate crimes investigation. Instead, they just point out that other people have said that anti-gay religious conservatives help encourage violence against gays with their rhetoric, as if that was relevant to the question of standing.
As I said, most of the complaint is just political rhetoric. Like this, which purports to be an actual legal argument:
Section 249(a)(2) of the Hate Crimes Act has the purpose and effect of deterring, inhibiting, and chilling the exercise of fundamental rights by persons, including Plaintiffs, who publicly oppose homosexual activism, the homosexual lifestyle, and the homosexual agenda, which seeks to normalize intrinsically disordered sexual behavior that is contrary to the moral law and harmful to the common good of society. Supporters of the homosexual agenda seek to demonize, vilify, and criminalize deeply held religious beliefs that are in opposition to their agenda.
This is the kind of thing that makes judges growl at attorneys. This is not a serious legal argument, It's a mini-sermon full of claims that have nothing at all to do with the legal or constitutional questions in the case. The TMLC seems to have a very difficult time distinguishing between the kind of language they use in their fundraising letters and the kind of language they should use in a legal complaint.
This is the closest thing I can see to an argument for standing:
The enforcement history of similar "hate crimes" legislation, the public statements of homosexual activists, and the influence of homosexual activists within the federal government demonstrate that Plaintiffs' fears of adverse enforcement action under the Act on account of their deeply held religious beliefs are credible.
But merely fearing bad things happening if a law was applied to you does not give you standing to challenge that law; the law has to actually have been applied to you or there has to be, at bare minimum, a reasonable chance that it will. And frankly, I think the TMLC knows this and is fine with it.
The complaint reads like a fundraising document because that's exactly what it is. And if the case gets dismissed, as it inevitably will, so much the better -- that just proves how important it is for you to send money to the group fighting against the big bad establishment to crush religion.
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Ed stated:
As I was reading Ed's blog post I was began to develop the same speculation. However, according to Ed's radio show intro*, that must mean I'm not thinking at all. ;)
*Paraphrased, "If two people think exactly alike, then one of them probably isn't thinking at all."
Posted by: Michael Heath | February 9, 2010 9:19 AM
Supporters ... seek to demonize, vilify, and criminalize ... beliefs that are in opposition to their agenda.
KA-BLOW!!
Posted by: MarkusR | February 9, 2010 9:19 AM
Without doubt, the Republican Party will use this as an example of the need for tort reform. Right?
Posted by: History Punk | February 9, 2010 9:35 AM
Michael Heath, you may be off the hook -- Ed's intro does say "exactly alike on everything."
Posted by: Squiddhartha | February 9, 2010 9:42 AM
Now wait a minute, Ed. That argument says it "has the purpose and effect". That sounds very lawyerly to me. It must be a good argument.
Posted by: Don | February 9, 2010 10:00 AM
Does anyone happen to have any data on how many cases the TMLC have filed, versus how many they have won? And on how that ratio compares to the ACLU?
Posted by: abb3w | February 9, 2010 10:08 AM
Actually, suing the Attorney General to enjoin enforcement of a law is pretty much the standard way to challenge its constitutionality before the law has actually been used - see for example ACLU v. Reno (over the CDA), Eldred v. Ashcroft (copyright law term extensions), etc. It's just a standard procedural move, having nothing to do with whether the official being sued has any control over what the law says.
Posted by: Andrew G. | February 9, 2010 10:16 AM
abb3w wrote:
This is a good question. I can't think of a single civil case they've won (though I have a vague recollection that they did win one criminal defense case on behalf of a soldier).
Posted by: Ed Brayton | February 9, 2010 10:20 AM
Which fundamental right is this law inhibiting or chilling? The right to take out one's bigotry and frustration on a gay person? Gee, I guess we need to stop persecuting Chrisitians who do that.
Posted by: FishyFred | February 9, 2010 10:59 AM
When I read this piece, my first thought was "wouldn't it be hilarious if the case went before a gay judge by the luck of the draw." Then I turned to Nan Hunter's blog and discovered that it had come out that Judge Vaughn Walker, the judge in Perry v Schwarzenegger the Prop H8 case is gay. (He's never, apparently and according to the 'Trial Tracker,' been closeted and half the local lawyers have been aware of this, he's just never made a big thing about it.)
Nan has the precedents showing there was no need for him to recuse himself, btw.
Posted by: Prup (aka Jim Benton) | February 9, 2010 11:02 AM
Ed Brayton "I can't think of a single civil case they've won..."
But that just shows what they're up against! Oooo, darn those liberalactivistjudges!
"...(though I have a vague recollection that they did win one criminal defense case on behalf of a soldier)."
Was that soldier, by any chance [pause for effect] Jesus?
The Lord can't lose. The people who purport to work for Him face no such restriction.
Posted by: Modusoperandi | February 9, 2010 1:49 PM
And even sneakier, those liberalactivist judges occasionally let the ACLU win a religious freedom case, just to hide their true agenda! Still more positive proof of their perpetual perfidy!
Posted by: Scott Hanley | February 9, 2010 2:03 PM
Ed Brayton: This is a good question.
Thank you. =)
Ed Brayton: I can't think of a single civil case they've won
A quick whack at Teh Goog easily turns up a single case.
Less easily, Teh Goog turns up Theresa Becker's scholarship case, which they may have been involved with (based on inclusion on their video page).
Ed Brayton: (though I have a vague recollection that they did win one criminal defense case on behalf of a soldier)
Presumably the case of Lt. Col Chessani (also fairly easily found by Teh Goog).
There don't seem to be a lot more. Of course, the TMLC has been in existence for a mere decade or so, but only three victories does not sound promising.
Posted by: abb3w | February 9, 2010 2:09 PM
Win lose or draw are not the only parameters. They compete on a marketing and publicity front as well where getting the message out is enough to count as a win regardless of legal acumen or results.
Posted by: MikeMa | February 9, 2010 2:38 PM
MikeMa: Win lose or draw are not the only parameters. They compete on a marketing and publicity front as well where getting the message out is enough to count as a win regardless of legal acumen or results.
Oh, certainly. But in that sense, they're competing only as a PR firm, and not as professional lawyers whose legal analysis should be given serious consideration and treatment as expertise (say, over Ed's commentary) by the lay public.
In contrast, while the ACLU does do PR, their primary thrust is in the court of law instead of the court of public opinion. And while they don't win every time, they do win a lot.
Posted by: abb3w | February 9, 2010 4:11 PM
I think the takeaway here is "Damn, what a miserable excuse for a Complaint." They can't even state their facts without ideological assertions that have no relevance to the case at hand. If a first-year law student turned this in for credit she'd be ripped by the Professor. I don't think I've ever written a pleading this crappy, which is saying something.
You leave all the ideological battles in the Press Release, because the Judge doesn't have to read that. If DOJ moves for sanctions, I wouldn't disagree.
Posted by: kehrsam | February 9, 2010 5:10 PM
kehrsam "If a first-year law student turned this in for credit she'd be ripped by the Professor."
Not at Regent University.
Posted by: Modusoperandi | February 9, 2010 5:49 PM
abb3w @15
Yes, PR must certainly be high on the goal list, maybe even primary. Judging by their lack of legal success, this only makes sense.
The ACLU solicits donations touting successes, a rational approach. TMLC solicits donations based on failure. In the usual xian sense, failure = persecution and that certainly strikes a chord with the foolish faithful.
Posted by: MikeMa | February 9, 2010 7:31 PM
Michael Heath | February 9, 2010 9:19 AM:
More accurately: "A show dedicated to the idea that if two people are thinking exactly alike on everything, one of them probably isn't thinking at all." (Emphasis mine.)
Posted by: llewelly | February 9, 2010 9:18 PM
Shouldn't that be:
... at least one of them ...
Posted by: paulh | February 10, 2010 5:13 AM