Apr 23, 2013

Hitler wins: the disjunction of law & politics in Romeike v. Holder

The definition of a very vague legal term is at the center of oral arguments being heard today in a federal appeals court in Cincinnati, Ohio. That term is "particular social group."

In US law, that is one of five named groups of people eligible for asylum -- and the most ill-defined. The other categories are race, religion, nationality, and political opinions. If someone can demonstrate they are being persecuted or that they fear being persecuted on those grounds, they can be granted refugee status in America. People also have the right to asylum if they're being persecuted because they belong to a "particular social group," but what that means, who that applies to, is a matter of a legal dispute. In the case in court today, the question is whether or not homeschoolers count as a "particular social group" and should be granted asylum if they come to the US from a country where homeschooling isn't legal, such as Germany.

The political agitation coming out of this court case bears only the slightest relation to the legal issue, though.

The activists who care about this case, Romeike vs. Holder, don't appear to be at all interested in the legal issue at the heart of the case. They are, though, very interested in the way public perception of the case allows them to agitate against the Obama administration and for homeschooling.

The Romeike family has become a cause célèbre on the American right.

Uwe and Hannalore Romeike left southwest Germany in 2008, facing mounting fines for their refusal to send their children to either a public or private school. At the behest of the Home School Legal Defense Association, a non-profit committed to advocating for the rights of parents to homeschool, the Romeike's travelled to the US on tourist visas and then applied for asylum, claiming they were being persecuted in Germany for their religious belief that they should homeschool. The family does not belong to nor affiliate with any religious organization, but cited numerous Bible verses that they say instruct them to educate their own children, despite their lack of official credentials to do so.

The couple also claimed the German education system was teaching their children all sorts of things that they were opposed to, including witchcraft, though they didn't offer any evidence to support those claims.

Uwe Romeike told the authorities, "God requires me and my wife to educate our children at home ourselves."

In 2010, a federal judge ruled that the family was indeed a "particular social group" -- i.e., homeschoolers -- being persecuted in Germany, and thus could be considered to have the right to asylum in America.

The Romeike's lawyers also argued they were being discriminated against because of their political opinions and religious beliefs, but the court didn't accept those arguments. The family had no history of political activity. They certainly were religious, but the law they were accused of violating had no religious component to it, and didn't qualify, legally, as amounting to religious persecution. The judge wrote, however, that the family was being attacked by the German government because the German government, "for some unknown reason," wants to suppress the particular social group that is home schoolers. Their request for asylum was granted.

Then, a year ago, the immigration appeals board overturned the court's decision. The board ruled the Romeike's were not legally entitled to the status of refugees, as homeschoolers do not constitute a protected class, since they are a diverse group, amorphous. The main legal standards for establishing a group as a "particular social group," established by the precedent of court rulings, require the Romeike's lawyers prove that homeschoolers are a group with immutable characteristics. This means they have to make the case that being a homeschooler involves "a characteristic that either is beyond the power of an individual to change or is so fundamental to individual identity or conscience that it ought not be required to be changed." There are also other interpretations of what this term means that have been used by the courts, as is outlined in a Boston College International and Comparative Law Review article that strongly supports the Romeike's asylum case. The extensive legal issues involved in this case are further argued by one of the HSLDA lawyers in a long blog post here.

None of that shows up in the popular arguments being about this case, however.

Instead, the HSLDA is promoting arguments like this:

That comparison has been picked up and repeated by those who strongly support homeschooling and strongly oppose Obama and, generally, American liberalism. For example, a self-described "homeschooling guru" blogger writes,
the Obama Administration, while disregarding millions of illegal immigrants and Mexican drug lords sneaking over the Southern borders, dismissed the judge’s argument and immediately set their sights on an innocuous homeschooling family from Germany .... This case should be on the radar screen of every parent who values the freedom to raise and educate our children without government interference.
A FOX News story opened with the same comparison between "good" immigrants and the bad ones: "While the White House and many lawmakers push to grant legal status to immigrants who crossed the border illegally, the Romeike family thought they followed the rules -- but now face deportation."

None of this has anything to do with the case, in reality. The merits of the case -- on which the case will be debated and will be decided -- have not the slightest relationship to the question of immigration reform or general immigration policy. The politics of immigration aren't at issue in the federal appeals court.

The case has even less to do with Nazism, but the political agitators have been very aggressive in associating Germany's education law to that dark period of German history, making the hand-wavy argument that either this family should get asylum in America or the Nazis win. Though public education has existed in Germany since Luther, and was law long before Nazis took charge, people defending the Romeike's right to be seen as persecuted refugees repeat claims that German education policy is, at bottom, a Nazi policy.

As HSLDA head Michael Farris put it,
the German government wants to prohibit people who think differently from the government (on religious or philosophical grounds) from growing and developing into a force in society. It is thought control. 
It is belief control. It is totalitarianism dressed up in politically correct lingo. 
In the same vein, HSLDA has argued people should speak up in support of the Romeike's because:

While Dietrich Bonhoeffer's face may not symbolize principled opposition to growing government encroachment on the freedom of religion to everyone, that's what it communicates to Christian conservatives in America today.

Nor are the ad hitlerum arguments always so subtle.

A Neo-Calvinist homeschooler wrote that in this case, the US Attorney General is taking the side of Nazism in federal court. The homeschooling father writes:
This may be a glowing example of the argumentum ad hitlerium fallacy, but consider the facts. Adolf Hitler will be one of Eric Holder’s witnesses for the prosecution against the Romeikes. This is a human rights contest where the prosecution will posthumously call Adolf Hitler to testify on their behalf whenever German law is invoked, and the German Supreme Court’s upholding of these Nazi laws is the primary witness in Eric Holder’s case against the Romeikes.
No facts are actually involved in that paragraph. But details of how and why German education policy developed aren't relevant to rhetorical excess, nor to the political argument for homeschooling and against government generally. And anyway, no one who is making this argument-by-free-association seems to have bothered to investigate why Germans tolerate and even avidly support the ban on homeschooling.

It's enough, politically, to shout "Hilter!"

Or, as a columnist at the right-leaning Washington Times wrote, "small-minded and grasping totalitarianism .... It sounds like they aren’t really big on religious or philosophical diversity over there."

Even if it were what it seemed like or sounded like to those who think loose comparisons to Hitler serve as evidence of totalitarian intent, that wouldn't be relevant to this court case being heard in Ohio today. The decision won't be based on anything having to do with Hitler. Or immigration. Or any of the political conflicts being actively aggravated by homeschooling advocates in loose connection to the Romeike case.

The court case isn't about any of these things.

But then maybe that's the point, because HSLDA can lose this appeal and still advance its cause and rally its base with all this rhetoric and agitation that's only tangentially connected to the court case purportedly arousing it. Getting people up in arms can serve a purpose. And people are unlikely to strong emotional reactions to debates over the definition of "particular social group" in a US asylum law passed in 1980. The politics of this and the legal case in the courts are, when one looks at them, only barely related. The two discourses never quite intersect, even when they're presented as being (and necessarily, for the sake of the politics) entirely the same.

This is what's really crazy about the public debates about politically sensitive court cases -- knowing the facts of the case and legal issues being debated doesn't really turn out to be particularly relevant to the social groups who really, passionately care.