PEOPLE FOR BLOG

Last night, the House passed the Department of Defense Authorization bill in a 281 to 146 vote. Attached to the legislation was the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act, which will expand current hate crimes law to cover acts of violence motivated by a victim's sexual orientation, gender, disability or gender identity.

The bill passed despite Republican opposition to the hate crimes provision and accusations that it would prosecute "thought crimes." People For the American Way President Michael B. Keegan said in a statement:

Last night's vote was an important step towards finally enacting these hate crimes protections into law. This bill will help ensure that fewer Americans will become victims of violence simply because of who they are, while at the same time providing strong First Amendment protections. Limited hate crimes protections have existed for years on the basis of race and religion. It's long past time to expand this to include other targeted groups. I'm especially proud that this bill includes protections based on gender identity-the first time gender identity will receive positive protection in federal law.

The Byrd/Shepard Act is expected to pass in the Senate next week, the same week as the anniversary of the death of Matthew Shepard, the University of Wyoming student murdered in 1998 because he was gay.

PFAW

Scalia, Empathy, and Crayons

This week, the Supreme Court heard arguments in Salazar v. Buono, a case involving the display of a cross on top of Sunrise Rock in the Mojave National Preserve, which is federal property. (People For the American Way Foundation joined an amicus brief in this case filed by Americans United for the Separation of Church and State and other religious and secular non-profits).

By now, you've probably read about Justice Scalia's angry response when a Jewish lawyer had the audacity to point out that Jews don't use Christian crosses to honor their dead.

Mr. Eliasberg [the ACLU Foundation attorney] said many Jewish war veterans would not wish to be honored by "the predominant symbol of Christianity," one that "signifies that Jesus is the son of God and died to redeem mankind for our sins."

Justice Scalia disagreed, saying, "The cross is the most common symbol of the resting place of the dead."

"What would you have them erect?" Justice Scalia asked. "Some conglomerate of a cross, a Star of David and, you know, a Muslim half moon and star?"

Mr. Eliasberg said he had visited Jewish cemeteries. "There is never a cross on the tombstone of a Jew," he said, to laughter in the courtroom.

Justice Scalia grew visibly angry. "I don't think you can leap from that to the conclusion that the only war dead that that cross honors are the Christian war dead," he said. "I think that's an outrageous conclusion."

When I read this, my mind immediately went to … crayons. Yes, crayons.

When I was five, I had a somewhat peach-colored crayon that Crayola called "flesh." I'm white, and the crayon was close to my own skin color. It didn't occur to me that Crayola was assuming that all people are white. I didn’t need to think about it – After all, I was part of the majority. Later on, of course, I realized how this nomenclature marked African Americans as other, as outsiders in our society.

But not everyone who is a member of the in group has the capacity to understand what it is to be on the other side. Justice Scalia certainly doesn't.

For Justice Scalia, the cross has never had anything but positive connotations. From the perspective of his life experience, how could a cross grave marker be anything but an honor?

But in the history of America, Jews and other non-Christians have experienced the cross at times as neutral, and at times as a symbol of exclusion and persecution. Yet when someone points out that Jews do not see the cross as a symbol of honor, Justice Scalia gets angry.

In analyzing how the law impacts people, a wise judge considers people who are different from himself. A wise judge has empathy. Justice Scalia has none.

PFAW

President Obama nominates Judge Chin and Judge Thompson to Court of Appeals

Judge Chin clerked on the Southern District of New York for Judge Henry F. Werker. He was the first Asian-American appointed as a U.S. District Court Judge outside of the Ninth Circuit. Judge Chin is currently the U.S. District Court Judge for the Southern District of New York

Judge O. Rogeriee Thompson serves on the Rhode Island Superior Court.  She was the first African-American woman on that court. As an Associate Justice of the Rhode Island Superior Court, Judge Thompson has original jurisdiction over all felony cases and civil actions, including those sounding in equity

President Obama said:

Judges Chin and Thompson have displayed exceptional dedication to public service throughout their careers They have served on the bench with distinction in New York and Rhode Island and I am honored to nominate them today to serve the American people on the United States Court of Appeals. I am confident that they will be judicious and esteemed additions to the First and Second Circuits

We hope that the Senate confirms these nominations quickly. With both Judge Chin and Judge Thompsons' credentials, we think that they will be excellent additions to both the First and Second Circuits

PFAW

Roberts and Alito Legislating From the Bench

This week, the Supreme Court heard arguments in Maryland v. Shatzer, a case involving the constitutional right to counsel during police questioning. The questions asked by the Justices – even the most conservative of them – exposed one of the great lies the Far Right tells about our nation’s judiciary: that courts should not make policy.

In 1981, the Court held that once you tell the police that you want your lawyer, the questioning must stop either until your lawyer arrives, or you yourself initiate further communication. This rule protects you from being badgered by the police to change your mind before the lawyer shows up.

In 2003, after Michael Blaine Shatzer asked for a lawyer, the police dropped their investigation and released him from their custody. Three years later, new evidence arose in the case. The rule established in 1981 would suggest that the police were still barred from questioning Shatzer. That was the issue before the Court this week. To help them analyze the case, the Justices asked the sorts of hypothetical questions they often ask. The Washington Post reports:

Justices seemed generally supportive … that police should have been allowed to question Shatzer again, but they had a hard time agreeing on how the rule should be changed.

[Chief Justice] Roberts worried that police could repeatedly question and dismiss a suspect who asks for a lawyer. "You know, just sort of catch-and-release, until he finally breaks down and says, 'All right, I'll talk,' " Roberts said. ...

[T]he justices wondered what could be done about a suspect who asks for a lawyer, never actually receives one or is convicted, and then is questioned years later, perhaps for a different crime.

Justice Samuel A. Alito Jr. posed this hypothetical: What if someone was arrested for joy riding in Maryland, invoked his Fifth Amendment protection, and was never convicted? Could police in Montana question him as a murder suspect in Montana 10 years later?

When [Shatzer’s attorney] said no, Alito replied: "And you don't think that's a ridiculous application of the rule?"

[Then] Alito raised the hypothetical ante to a crime committed 40 years later ...

If the police let a suspect go after he asks for a lawyer, does the Constitution prohibit the police from questioning him again half a century later? Should there be limits? What should they be? How do you decide?

The Justices deciding this case are not simply calling balls and strikes, the insulting umpire analogy that Roberts infamously used during his confirmation hearings. Roberts, Alito, and the other Justices are weighing the consequences of different possible interpretations of the 1981 precedent as they apply it to a new and unforeseen situation.

Just as legislators do, they will be making policy. And that's fine. That's what courts are supposed to do. It's inherent in interpreting the law in difficult cases such as this.

So the next time the Washington Post quotes a right wing propagandist condemning progressive judges for making policy or "legislating from the bench," perhaps the Post will do more than collaborate by simply reprinting the accusation. Perhaps the Post will cite its own reporting and point out that all judges weigh policies and make law, but that the Far Right is silent when conservative judges do it.

PFAW

Last night, in a 178-234 vote, the Matthew Shepard and James Byrd Jr. Hate Crimes Prevention Act moved one step closer to becoming law. This legislation protects victims of hate crimes based on disability, sexual orientation, gender, or gender identity. 

The vote was taken on what's called a motion to instruct conferees - this one would have instructed those negotiating a final Defense Authorization bill to remove the hate crimes language included by the Senate. In a series of speeches (item 35) fit only for Right Wing Watch, the motion's supporters tried to take down this critical update to "equal protection under the law." Thankfully, their efforts were to no avail, and the Shepard/Byrd bill may soon reach President Obama's desk. A few minor hurdles remain, but we hope to see it signed within the next week.

With the stroke of a pen, the President will have an opportunity to send loud and clear the message that freedom from discrimination is a right all Americans should enjoy. And we cannot forget that this action would affirm - for the first time in federal law - a positive protection for gender identity.

Click here for more information from People For the American Way and African American Ministers in Action.

PFAW

Church, State, Land Swaps, and the Supreme Court

Today, the Supreme Court is hearing oral argument in the case of Salazar v. Buono, a case involving the display of a cross on top of Sunrise Rock in the Mojave National Preserve, which is federal property. A former employee of the Preserve sued in federal court challenging the legality of the display, arguing that the religious symbol violated the Establishment Clause of the First Amendment.  The district court agreed and ordered that the display be taken down.  So far, so good.

But in order to sidestep the ruling, Congress swapped Sunrise Rock—but none of the land around it—with a private party who agreed to maintain the cross.  Buono asked the Court to enforce its order prohibiting the display of the cross and also asked the court to prohibit the land swap.  The court agreed as to both and on appeal to the 9th Circuit, the district court’s order was upheld.

People For the American Way Foundation joined a brief filed by Americans United for the Separation of Church and State and other religious and secular non-profits on behalf of Buono to point out that objections to such religious displays on public land are more than the just general grievances.  Rather, the effects of an unconstitutional government display of religion inflict real and significant harm that cannot be easily ignored. 

Government-sponsored religious symbols are potent forms of speech that can have real, palpable effects on people who are subjected to them. The harm from them is not that they evoke mere distaste, displeasure, or even disgust. It is that they deprive citizens of the use and enjoyment of public lands, because using a public facility where the government has chosen to erect a monument to one faith stigmatizes nonadherents as second-class citizens, while demeaning the faith of adherents by coopting what is sacred.

Also, these harmful effects cannot be fixed by a contractual land transfer of a particular parcel of land, particularly when the parcel is entirely enclosed within a federal preserve and where the government has taken no steps to disassociate itself from the display[].  Nothing was done at all to make it clear that the display is no longer on government land.  As such, the transfer cannot be seen as anything other than a cheap strategy designed solely to preserve the display of the cross.  Allowing a scheme like that to cure the unconstitutionality of a government act wouldn’t correct the wrong—it would perpetuate it.

 

PFAW

Correcting the Court

Exhibit A from last term of the Roberts Court's conservative judicial activism is the Gross age discrimination case where the Court, in an opinion written by Justice Clarence Thomas, reached out to decide an issue that hadn't been briefed and changed the law in a way that will make it much harder for older workers to prove that they were discriminated against in the workplace. Today, three key Democratic leaders, Senators Tom Harkin and Patrick Leahy and Rep. George Miller, announced plans to introduce a bill to correct the Court's error. As noted in the coverage of the announcement, this is the second time in a year that Congress has reached out to correct the court, the first being the Lilly Ledbetter legislation, the first measure signed into law by President Obama in January of this year.

PFAW

Marriage Equality Bill Introduced in DC

DC Councilman David Catania introduced a bill on Tuesday that will end discrimination against same sex couples who wish to marry in the nation's capital. The District already recognizes same-sex marriages performed in other jurisdictions, but the new proposal will allow the nuptials to take place in the city.

The bill is expected to pass the 13-member city council, and it is supported by DC Mayor Adrian Fenty. In spite of this strong support in the city, outsiders will once again focus on denying marriage equality to DC residents.

Harry Jackson, Bishop of the Hope Christian Church in Maryland, is once again vowing to bring the issue to the ballot. As PFAW has reported, Jackson is an ardent supporter of homophobic ballot initiatives; this time he has the support of the Catholic Archdiocese of Washington, Colorado-based Focus on the Family, and the National Organization for Marriage.

In addition, Rep. Jason Chaffetz (R-Utah), who failed at derailing the marriage recognition bill from over the summer, has expressed interest in overturning DC law again, though he admits it is unlikely that Congressional Republicans will be able to muster enough support to do so.

 

PFAW

Bob McDonnell and the High Cost of Being a Gay Couple

In Virginia, far right gubernatorial candidate Bob McDonnell has gotten a lot of attention for his belief that it is the duty of government to punish homosexuality. McDonnell came to mind this weekend when I read a sobering article in the New York Times entitled "The High Cost of Being a Gay Couple."

By not recognizing marriages between two men or two women, our federal and state governments treat these couples as legal strangers. The authors of the article calculated the financial burden that results from this discrimination.

We looked at benefits that routinely go to married heterosexual couples but not to gay couples, like certain Social Security payments. We plotted out the cost of health insurance for couples whose employers don't offer it to domestic partners. Even tax preparation can cost more, since gay couples have to file two sets of returns. Still, many couples may come out ahead in one area: they owe less in income taxes because they're not hit with the so-called marriage penalty.

Our goal was to create a hypothetical gay couple whose situation would be similar to a heterosexual couple's. So we gave the couple two children and assumed that one partner would stay home for five years to take care of them. We also considered the taxes in the three states that have the highest estimated gay populations — New York, California and Florida. We gave our couple an income of $140,000, which is about the average income in those three states for unmarried same-sex partners who are college-educated, 30 to 40 years old and raising children under the age of 18.

And what was the result?

In our worst case, the couple’s lifetime cost of being gay was $467,562. But the number fell to $41,196 in the best case for a couple with significantly better health insurance, plus lower taxes and other costs.

Of course, as far as Bob McDonnell is concerned, the government is only doing what it’s supposed to do: punishing homosexuality.

PFAW

Hints for the Obama Agenda in the Coming Supreme Court Term

As discussed in a number of previous posts, the Roberts Court has demonstrated its conservative ideological bent, striking down laws passed by Congress and demonstrating a willingness to ignore long-standing precedent. It reached out last term in the Gross age discrimination case to decide an issue that hadn't been briefed and changed the law in a way that will make it much harder for older workers to prove that they were discriminated against in the workplace. In the Ricci fire fighters case, the Court reached out to decide the case on the merits - even though no employee had actually been injured -- so that it could reach the merits and change the law with respect to proving discrimination in so-called disparate impact cases. And, in the recently argued Citizens United case, the Court re-opened the briefing in the case to re-visit what had been a settled question about whether regulating corporate expenditures in candidate elections is constitutional.

Will this trend continue? And what does this mean for President Obama's initiatives on health insurance reform? Climate change? Financial regulatory reform? Asnoted in Adam Liptak's article in yesterday's New York Times, the Court's docket this term includes a number of cases likely to signal its future willingness to support government intervention to address structural problems in our economy. In Free Enterprise Fund v. Public Company Accounting Oversight Board, a case growing out of the Enron debacle, the Court will consider the scope of Congress' power to delegate regulatory responsibility to independent regulatory boards. The issue in Jones v. Harris Associates, concerns the role of courts in regulating executive compensation for mutual fund investment advisers. And in Milavetz, Gallop & Milavetz v. United States, the issue concerns the scope of a federal law concerning lawyers' advice to clients considering bankruptcy. Dry? Perhaps. But what we learn in these cases, may well signal how far the Court is willing to go in supporting or, perhaps more likely, frustrating, efforts by the Administration and Congress to address serious structural problems in our economy.

You think Justices' legal ideology matters? Stay tuned.

PFAW

Business at the Court

It's the first Monday in October, and that means another Supreme Court term is upon us. In addition to cases addressing church-state separation and First Amendment protections, the Court will be hearing a load of cases relating to business and finance that could have broad implications for all Americans.

The justices’ decisions will be closely watched at a time when, constitutional scholars say, Obama administration initiatives are generating fundamental questions about the structure and limits of government power that will, in short order, reach the court.

“There will be major ways in which these interventions will produce legal and constitutional issues,” said Michael W. McConnell, a former federal appeals court judge who is now director of the Stanford Constitutional Law Center.

And these aren't even the kinds of business cases we're used to talking about with relation to the Court.

In recent terms, the business docket was studded with cases about employment discrimination, federal pre-emption of injury suits and the environment. With the exception of a single employment case, all of those categories are missing.

In their stead, important questions about bankruptcy, corporate compensation, patents, antitrust and government oversight of the financial system will confront the justices.

PFAW

Standing Up For Kevin Jennings

The Right Wing smear machine has been in overdrive attacking Kevin Jennings, who heads the Department of Education's Office of Safe and Drug Free Schools.  But the education community is having none of it.

The National Association of School Psychologists calls Jennings "A Champion in the Department of Education."

The Learning First Alliance says "Kevin Jennings is the right person to lead the Education Department's Office of Safe and Drug Free Schools."

The National Education association says Jennings is "highly qualified" and that his "proven track record of success speaks for itself."

Gerald Tirozzi of the National Association of Secondary School Principles appeared on CNN last night to praise Jennings as "a powerful voice to continualy help us not to back away from doing the right things for kids in our schools."

And, in case you were wondering, People For says "Kevin Jennings Will Keep Schools Safe for All."  Indeed.

 UPDATE: There's more!

The Council for Exceptional Children says "Mr. Jennings has dedicated his career to ensuring that our schools remain supportive, safe and positive for all students."

The Social Workers Association of America says Jennings "is devoted to improving the school climate and making schools safe and nurturing environments for learning and growth."

The National Association of Secondary School Principals calls Jennings "a great educator who cares deeply about every student."

PFAW

Rep. Franks calls President Obama "an enemy of humanity"

Recently, Rep. Trent Franks (R-AZ) accused President Obama as being “an enemy of humanity” in a speech at the How to Take Back America Conference. Rep. Franks said:

We shouldn't be shocked that he does all these other insane things. A president that has lost his way that badly, that has no ability to see the image of God in these little fellow human beings, if he can't do that right, then he has no place in any station of government and we need to realize that he is an enemy of humanity."

 

Could Franks be piggy-backing on Rep. Wilson’s “you lie” outburst during President Obama’s speech on health care in front of congress? What strikes me most about this quote (and something that may receive less media attention) is that Franks uses the abelist term “insane” to describe President Obama. I want to pose a question: how many House members have publicly called the President a word to describe someone living with mental illness before President Obama’s term in office?

PFAW President Michael Keegan’s made the following statement in response to Rep. Franks’ comments:

Rep. Trent Franks' remarks at the How to Take Back America Conference show a stunning lack of respect for our president and the office of the presidency itself. Rep. Franks is following the lead of Glenn Beck, but he's a member of Congress, not a talk show host, and he should act like one.

Americans, and especially members of Congress, should be able to disagree passionately about politics without making wild and irresponsible accusations. President Obama's views on reproductive rights are supported by a majority of Americans, and it is outrageous for Rep. Franks to claim that anyone who holds such views is unfit for public office and an "enemy of humanity."
 

 

 

PFAW

Mary Travers, Defender of Democracy and Folk Music Legend, R.I.P.

Mary Travers of the folk music trio Peter, Paul and Mary passed away this week. She was a longtime friend, ally, and supporter of People For the American Way and a powerful advocate for justice and equal rights throughout her life.

PFAW honored Travers and her bandmates Peter Yarrow and Paul Stookey for their decades of activism at our 1999 Spirit of Liberty event. This tribute video, which was played at the event, explains why they were awarded the Defender of Democracy award: The progressive movement had a great friend in Mary Travers, and we are saddened by the loss. We send our condolences to her friends and family.

PFAW

Obama Nominates First Openly Gay EEOC Commissioner

President Obama recently nominated Chai Feldblum to the Equal Employment Opportunity Commission.  She'll be the first openly gay person to hold that post.

Feldblum, a law professor at Georgetown University Law Center, previously served as legislative counsel to the AIDS Project of the American Civil Liberties Union, where she played a role in the drafting of the Americans with Disabilities Act of 1990.

"She has also worked on advancing lesbian, gay, bisexual and transgender rights" and "been a leading expert on the Employment Nondiscrimination Act," according to a biography released by the White House.

Her degrees are from Harvard Law School and Barnard College, and she went on to clerk for Judge Frank Coffin on the First Circuit Court of Appeals and Supreme Court Justice Harry A. Blackmun.

Of course, the Right Wing has lost no time at all in branding her "general counsel to the Forces of Darkness."  Stay classy, you guys.

PFAW