Yesterday, a three-judge panel of the 9th Circuit Court of Appeals ruled unanimously in favor of equality, striking down same-sex marriage bans in Idaho and Nevada.
Judge Stephen Reinhardt delivered the ruling for the panel, which applied heightened scrutiny because the bans are applied on the basis of sexual orientation, and concluded that the state laws violate the equal protection rights of lesbians and gays who wish to marry. The court took note of the particular harm marriage bans impose on families:
“To allow same-sex couples to adopt children and then to label their families as second-class because the adoptive parents are of the same sex is cruel as well as unconstitutional. Classifying some families, and especially their children, as of lesser value should be repugnant to all those in this nation who profess to believe in ‘family values.’”
The ruling follows the Supreme Court’s refusal to hear the appeals of five states seeking to reverse similar cases in which a lower court ruled state marriage bans unconstitutional. This morning, however, Supreme Court Justice Anthony Kennedy temporarily blocked the appeals court ruling and asked for a response from the plaintiffs involved in Idaho’s marriage lawsuit by Thursday at 5 pm.
More than a year ago, the Supreme Court dealt a major blow to voting rights when they struck down a key provision of the Voting Rights Act in their Shelby v. Holder decision. In the wake of this decision, nine states and many other counties that once had to have their voting law changes approved by the federal government before they took effect — what’s known as “preclearance”— no longer have to do so. With the midterm elections rapidly approaching, where does that leave voters in the preclearance states and in other states where legal battles over voting laws are raging?
Yesterday ProPublica published a great round-up of the current landscape of voting rights across the country. Some of the lowlights included:
• Seven preclearance states have announced new restrictions since the Supreme Court rolled back the Voting Rights Act.
• [In 2012], a federal court called Texas's photo ID law [the] “most stringent in the country.” Now, it’s in effect.
• Two months after the Supreme Court ruling on the Voting Rights Act, North Carolina cut early voting and eliminated same-day registration.
ProPublica notes that while glaringly discriminatory barriers like literacy tests are behind us, these legal changes matter a great deal. As voting rights advocates have demonstrated, voter ID laws, limitations on early voting, and voter roll purges disproportionately harm communities of color and other marginalized groups. Rather, Americans agree that no one should be facing barriers to casting a ballot and participating in our democracy.
You can read the full article here.
On August 9, I don't believe 18-year-old Michael Brown, Jr. woke up in the morning thinking he would not see the evening sun, his family or friends, the end of the day that started with hope and promise. That morning, I don't believe Officer Darren Wilson left for work knowing his tragic encounter with an unarmed young African American male, who he would shoot and kill, would be the spark that ignited the flame that has been slowly burning in the city of Ferguson - the need for change.
In the wake of the fatal police shooting of unarmed teenager Michael Brown, Jr. in Ferguson, Missouri, community members and civil rights activists are proactively turning pain into power by praying, marching, meeting and yes, registering people to vote -- a move that the leader of the Missouri Republican Party, Matt Wills, said this week was "not only disgusting but completely inappropriate."
What is disgusting is that type of commentary and thinking! What is disgusting is for anyone to say, as Wills did, that "injecting race into this conversation and into this tragedy, not only is not helpful, but it doesn't help a continued conversation of justice and peace."
Is that leader aware or in denial of the Missouri Attorney General's 2013 report on racial profiling which shows that out of 5,384 Ferguson Police Department stops, 4,632 were of African Americans? That's disgusting and "completely inappropriate."
Is he aware or in denial that of the 521 arrests made during the report period, 483 were of African Americans? That out of 2,489 stops for moving violations, 1,983 were of African Americans? Shame on that leader and those who are "disgusted" by the simple act of voter registration drives to bring "light into darkness"!
In the shadow of Michael's death and the ensuing protests, I cannot imagine a more profound, inspiring response than voter registration. Justice and peace are close companions of democracy. Conducting voter registration drives at any time -- but especially at this time in a "sick and tired of being sick and tired" city that had just 12 percent turnout in this year's municipal election, 11.7 percent turnout in 2013, and 8.9 percent in 2012 -- is a critical way to address this as both a personal tragedy and a systemic tragedy.
It is not "disgusting" but deserving of those who live in a place that lacks diversity in local government, from the city council to the school board to the police department.
With deep condolences to the parents of Michal Brown, Jr. -- not wanting to "politicize" his death or exploit a grieving family who is calling for justice for the one who left out on Saturday morning and will never return -- what better way to honor them than by sowing the seeds of long-term, much needed change? Even from where I am in Washington, DC, I feel the urgency of the call for change in the homes, neighborhoods, businesses, and community of Ferguson.
The world has watched the dehumanization of a mother's child, police with military-grade gear tear-gassing protesters, journalists arrested and assaulted, and the response of helplessness and frustration that many community members must feel toward elected officials from City Hall to the halls of Congress. As Simon Maloy from Salon put it, "a week's worth of unrestrained police crackdowns...with the blessing or tacit approval of political leaders...will tend to erode whatever trust one has left in the people in charge."
So those of us who are watching should applaud, not complain about or attack, a community that turns a lack of trust in its elected officials into a movement for change.
We should applaud and not attack an inspiring vision for a different future for the rest of Michael's siblings, family and friends -- one in which the local officials are responsive to the needs of the entire community, and better reflect the community's diversity. Be "disgusted" by the city's racial profiling data. Be "disgusted" by the predicament of "driving while Black." Be "disgusted" by efforts to suppress voter participation, in Ferguson and around the country as some have "dusted off Jim Crow tactics" trying to stand in the way of men and women, youth and elder, unemployed and employed, determined to exercise their most fundamental right as citizens.
As the leader of a national alliance of African American faith leaders, I work every day with people who are often part of the first responders to tragedies like this, who walk with the family, who eulogize the deceased and who also organize, connect, and empower. They know the face of systemic injustices and of elected leaders who want to make it harder, rather than easier, for certain communities to participate in our democracy. To make the leap from pain to a promise of peace is a difficult step, but thank goodness for those who are taking it.
As one St. Louis faith leader said, pointing at a voter registration tent set up on a Ferguson street by a local woman and her daughter: "That's where change is gonna happen."
Believe is my favorite word. I truly believe "a change is gonna come." After the protests end, after the national cameras leave, after the marchers from east to west return to their homes, neighbors, and communities, there will be follow-up, there will be change.
Registering, educating and getting out the vote is not "disgusting" or "completely inappropriate." What is "disgusting" and "completely inappropriate" is not responding effectively, productively, and positively to suppression and oppression.
As I read about the homegoing (funeral) service planned for next week, I pause and pray for the family and people of Ferguson. What next comes to mind for Michael Brown, Jr. and for change in Ferguson, is: be inspired -- register and vote! For Michael's parents, Lesley McSpadden and Michael Brown, Sr. and for change in Ferguson: be inspired -- register and vote! For all those who loved "Big Mike," and all the other unnamed youth who have died to "justifiable" or "legal interventions" by law officers and know that Ferguson deserves change: be inspired -- register and vote for justice and for the fulfilled promise of peace!
Yesterday's marriage equality ruling from a federal district court in Florida, like so many before it, strikes down laws preventing same-sex couples from marrying. And like all the ones before it, this ruling isn't a theoretical treatise on the law, but a legal opinion affecting real people.
All of the people suing to vindicate the rights guaranteed by the United States Constitution have a story to tell. All of them are important. The judge briefly describes them, such as this lesbian couple:
Arlene Goldberg married Carol Goldwasser in New York in 2011. Ms. Goldwasser died in March 2014. The couple had been together for 47 years. Ms. Goldwasser was the toll-facilities director for Lee County, Florida, for 17 years. Ms. Goldberg is retired but works part time at a major retailer. The couple had been living with and taking care of Ms. Goldwasser's elderly parents, but now Ms. Goldberg cares for them alone. Social-security benefits are Ms. Goldberg's primary income. Florida's refusal to recognize the marriage has precluded Ms. Goldberg from obtaining social-security survivor benefits. Ms. Goldberg says that for that reason only, she will have to sell her house, and Ms. Goldwasser's parents are looking for another place to live.
Think about it: If the grieving Arlene Goldberg loses her house just because she couldn't get married, that is what victory for the Religious Right looks like.
Recall that the Religious Right has not only spent the past thirty or forty years fighting to prevent gays and lesbians from marrying. They have also fought tooth and nail against every advance in civil rights that has come during that time, affecting employment discrimination, child custody, healthcare decisionmaking ... you name it. Victory for them has meant forcibly separating parents from their children, firing gay teachers, making grieving mourners lose their homes, and much, much more.
Fortunately, most Americans don't side with the Religious Right. More and more Americans are recognizing that whatever negative assumptions they may have once had about lesbians and gays were simply not true. And they're realizing that discriminatory policies cause real harm to real people and should be changed. Most Americans don't like the idea of gratuitously hurting completely innocent people.
As for the Religious Right, hurting innocent people isn't just an infrequent or accidental byproduct of the movement's policies. They have been dedicated for decades to denying LGBT people as many legal rights as possible. The harms caused by the absence of those rights is what victory looks like for them.
Finally, some good news: today a federal judge in Florida struck down the state’s ban on marriage for same-sex couples.
U.S. District Judge Robert L. Hinkle, nominated by President Clinton in the 1990s, ruled the 2008 ban unconstitutional on equal protection and due process grounds and predicted that future generations will look back with shock at the views of those who supported the ban:
'When observers look back 50 years from now, the arguments supporting Florida’s ban on same-sex marriage, though just as sincerely held, will again seem an obvious pretext for discrimination,' Hinkle wrote. 'Observers who are not now of age will wonder just how those views could have been held.'
While the decision has been stayed — meaning that couples cannot immediately begin getting married — it is a significant step forward for equality. Congratulations, Florida!
Protesters throughout the nation have come out to march and peacefully protest the unjust criminal system that led to Michael Brown being gunned down in Missouri on August 9, including members of the People For the American Way Foundation family.
In Missouri, two members of PFAW Foundation’s Young Elected Officials Network have taken key roles speaking out for justice. State Senator Maria Chappelle-Nadal and Alderman Antonio French were both part of the protests in Ferguson; Chappelle-Nadal was tear-gassed, and French was arrested. Other members of the YEO Network have also been organizing national petitions, marching, buying food and water for protestors, trying to dissuade looting, among other things.
Chappelle-Nadal, elected in 2010, represents part of St. Louis County in the Missouri Senate. She has been vocal in her criticism of Missouri Governor Jay Nixon and his response to the crisis in her community.
“I never expected to represent a war zone,” she tweeted Thursday.
French, on the other hand, has been documenting the protests through “advocacy journalism.” Born and raised in O’Fallon, French has dedicated his time in public service to improving the quality of life in north St. Louis, often working in conjunction with police to create safer spaces.
During the protests last Wednesday, French was arrested and then released early Thursday, but the reason behind the arrest remained unclear. His arrest, along with his work documenting the protests, have made him a “national voice against the militarization of police.”
In Miami, another PFAW Foundation voice joined the protests. Young People For alum Phillip Agnew, founder of the Dream Defenders, organized a similar demonstration to protest how “police departments around the country will continue to use black and brown bodies for target practice.”
Many Americans are appalled at the actions taken by law enforcement officials in Ferguson, Missouri this month. PFAW Foundation is proud of the work being done by members of our leadership networks to build a more equal America.
An unarmed teenager gunned down in the street. Peaceful protesters attacked in a military-style assault. Journalists tear-gassed and arrested to prevent them from covering the actions of government officials. This is not the America to which we aspire.
Many Americans are both angry and appalled at the actions taken by law enforcement officials in Ferguson, Missouri, this week. These actions do not reflect a commitment to the Constitution or to the principles of equal justice under the law and freedom of the press. We applaud the Department of Justice for undertaking an investigation into the violence, and we are grateful that state officials have stepped in to institute a more sensible law enforcement presence. We encourage state and federal officials to continue monitoring the situation and to intervene as necessary to prevent further civil rights violations.
At the center of this controversy is a dead teenager and a grieving family. We recognize that the pain and outrage felt by so many people is grounded in the fact that this kind of killing of young men of color happens far too often. Part of the tragedy is that a killing like this is not surprising. If our commitment to equality and human dignity is to have real meaning, we cannot continue to tolerate conditions that require so many parents to teach their children how to live through a chance encounter with law enforcement.
In the long run, our elected officials must grapple with many complex policy questions, including racial disparities in the administration of justice. Today we support community leaders who are demanding accountability.
The following is a guest post by Roeland Park Councilwoman Megan England, member of People For the American Way Foundation’s Young Elected Officials Network.
Before a city council vote last week in Roeland Park, Kansas, it was legal in our town to refuse or terminate housing, services, or employment for someone on the basis of who they are or who they love. I didn’t believe that our community would tolerate this kind of treatment for our lesbian, gay, bisexual, and transgender neighbors and friends. As a councilmember, I felt the obligation to ensure that everyone — regardless of sexual orientation, gender identity, or military status — has the opportunity to live, work, and contribute here.
This spring, Councilwoman Jennifer Gunby and I introduced a non-discrimination ordinance providing protections for the LGBT community and others. This seemed like the right thing to do for many reasons. First, it’s fair and just. It shows that our town, like so many others, values diversity and inclusion. It highlights the shared values of our community. It’s good for our economy, since it attracts businesses and visitors who want to feel that everyone is welcome in our town. It supports a strong and productive workforce and happier, healthier communities. What’s more, many of our neighboring towns were already a few steps ahead of us. Cities like Lawrence, Kansas and Kansas City, Missouri have had similar non-discrimination protections for over 20 years. In every corner of the country, cities and towns are increasingly understanding the importance of passing laws that prevent discrimination. And we were thrilled last week when Roeland Park finally did, too.
However, we still face an uphill battle in the larger fight for equality. In my work on this ordinance, I’ve learned that many people — even members of the press — are still unaware of the lack of federal protections in place for the LGBT community. There’s no end in sight to congressional gridlock in Washington, and it may be a while before our state of Kansas has the leadership necessary to wipe discrimination from the books. My hope is that other local elected officials will realize, like I did, that they have the power to make a simple but profound change in the lives of those they are sworn to represent. While change may be slow nationally, at the local level we have a tremendous opportunity to protect and serve our constituents, and to drive progress and innovation.
When Councilwoman Gunby and I began this process, we thought change might come quickly; we didn’t expect five months of revisions, public hearings, and tense discussions. While much longer and more difficult than we imagined, I now realize the importance of that process. It reaffirmed my respect for the political process. I saw the benefits of engaging the community in a critical dialogue, and in bringing light to the issue week after week. In some of the more difficult moments, when I wasn’t sure that the ordinance would ultimately pass, I wondered if it had all been worth it. One local transgender man answered that for me by sharing the story of how speaking publicly for the first time and simply telling his personal story encouraged young trans people to reach out to him for support and guidance. It was this act of kinship, of humanity and community, that reinforced for me the importance of the process no matter the outcome.
When focused on the big picture, we sometimes fail to see the smaller impacts of our work, the daily reverberations. But now, with both the ordinance in place and many conversations started, our community is all the better for it.
Today the 4th Circuit Court of Appeals struck down Virginia’s ban on marriage for same-sex couples.
This is a historic step forward for equality in the South. Beyond Virginia, the ruling will also affect the other states covered by the 4th Circuit, including North Carolina, South Carolina, and West Virginia, which have similar bans in place. In West Virginia, the district judge considering the challenge to the state’s ban said last month that he would not proceed until the federal appeals court had ruled.
In the majority opinion, the judges noted that bigotry and fear cannot be the basis for the denial of equal rights under the law:
We recognize that same-sex marriage makes some people deeply uncomfortable. However, inertia and apprehension are not legitimate bases for denying same-sex couples due process and equal protection of the laws.
…The choice of whether and whom to marry is an intensely personal decision that alters the course of an individual's life. Denying same-sex couples this choice prohibits them from participating fully in our society, which is precisely the type of segregation that the Fourteenth Amendment cannot countenance.
For those who claim that marriage bans are legitimate because they were adopted by popular vote, the court quoted a Supreme Court case from 1964:
A citizen’s constitutional rights can hardly be infringed simply because a majority of the people choose that it be.
That one sentence perfectly encapsulates why courts matter.
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In its recent decision in Hobby Lobby, the conservative 5-4 majority -- Chief Justice Roberts and Justices Alito, Scalia, Thomas, and Kennedy -- did something that may appear very unusual. In divided cases, these five justices have the reputation for interpreting very narrowly laws passed by Congress to protect civil rights. So why did they interpret so broadly the Religious Freedom Restoration Act (RFRA), a law passed by Congress to protect the important civil right of religious freedom? The answer, unfortunately, is all too clear. Comparing Hobby Lobby with the two rulings in civil rights law cases issued by the Court over the last year, the key factor that explains how the conservative majority ruled is not precedent, the language of the statute, or congressional intent, but who wins and who loses.
Let's start with last year's rulings, both of which concerned Title VII of the 1964 Civil Rights Act which bans employment discrimination. In University of Texas Southwestern Medical Center v. Nassar, the majority ruled very narrowly in interpreting Title VII, deciding that the only way that employees can prevail on a claim that they have been fired in retaliation for raising job bias claims is to prove that they would not have been discharged "but for" the retaliatory motive. This was despite the fact that in order to strengthen Title VII, Congress added language to the law in 1991 to make clear that plaintiffs should prevail if they show that discrimination was a "motivating factor" in a job decision. As Justice Ginsburg explained in dissecting Justice Alito's attempt for the majority to draw a distinction between retaliation and other claims under Title VII, the net effect of the majority's ruling was to make it harder to prove a Title VII retaliation claim than before the 1991 law and with respect to other civil rights statutes that don't explicitly mention retaliation. The 5-4 majority had "seized on a provision adopted by Congress as part of an endeavor to strengthen Title VII," she concluded, "and turned it into a measure reducing the force of the ban on retaliation."
In Nassar, in ruling against a doctor of Middle Eastern descent in a case also involving egregious ethnic and national origin discrimination, Alito disregarded clear legislative history and language showing Congress' broad intent, as well as the interpretation of the law by the Equal Employment Opportunity Commission (EEOC). Interestingly, towards the end of his opinion, Alito appeared to reveal a key consideration behind the majority's decision. The ruling was important, he explained, to "the fair and responsible allocation of resources in the judicial and litigation systems." After all, he pointed out, retaliation claims "are being made with ever-increasing frequency," although he did not even consider how many have been proven meritorious. Agreeing with the EEOC and the plaintiff on the "motivating factor" standard, he wrote instead, "could also contribute to the filing of frivolous claims." As Justice Ginsburg put it, the majority "appears driven by zeal to reduce the number of retaliation claims against employers."
The other 2013 Title VII ruling also reflected an extremely narrow reading of the law. Vance v. Ball State University concerned a complaint by an African-American woman that she had been subjected to racial harassment and a racially hostile work environment. Under prior Title VII Court rulings agreed to by both conservative and moderate justices, the employer itself is often liable for such harassment claims when the harassment is committed by an employee's supervisor. But in Vance, in an opinion by Justice Alito, the familiar 5-4 Court majority significantly narrowed Title VII. It ruled that such vicarious employer liability applies only when the harassment is committed by a manager who can fire or reduce the pay or grade of the victim, not when it is committed by a manager who does not have that power but does control the day-to-day schedules, assignments, and working environment of the victim.
As Justice Ginsburg explained in dissent, the majority's holding again contradicted guidance issued by the EEOC as well as Congress' broad purpose to eliminate workplace discrimination. In fact, she pointed out, not even the university defendant in Vance itself "has advanced the restrictive definition the Court adopts." But again, Alito's opinion betrayed part of the majority's true motives. Its narrow interpretation would be "workable" and "readily applied," Alito explained. And it would promote "the limitation of employer liability in certain circumstances."
Something very different happened in the next Supreme Court case interpreting a Congressional civil rights statute: 2014's Burwell v. Hobby Lobby.
In that case, the same 5-4 majority that narrowly interpreted Title VII in Vance and Nassar adopted a very broad interpretation of the Religious Freedom Restoration Act (RFRA). All nine justices agreed that RFRA was enacted by Congress in response to the Supreme Court decision in Employment Division v. Smith, which restricted the protection of religious liberty by the Court under the First Amendment. But the 5-4 majority in Hobby Lobby ruled that RFRA provides "very broad protection for religious liberty" - "even broader protection than was available" under the First Amendment in pre-Smith decisions. As Justice Ginsburg put it in dissent, the majority interpreted RFRA "as a bold initiative departing from, rather than restoring, pre-Smith jurisprudence." She explained further that this broad interpretation contradicted the language of the statute, its legislative history, and a statement by the Court in a unanimous ruling in 2006 that in RFRA, Congress "adopt[ed] a statutory rule comparable to the constitutional rule rejected in Smith."
This difference in statutory interpretation was critical to the majority's ruling in Hobby Lobby -- that for-profit corporations whose owners had religious objections to contraceptives could invoke RFRA to refuse to obey the Affordable Care Act's mandate that they provide their employees with health plans under which contraceptives are available to female employees. As Justice Ginsburg explained, no previous Court decision under RFRA or the First Amendment had ever "recognized a for-profit corporation's qualification for a religious exemption" and such a ruling "surely is not grounded in the pre-Smith precedent Congress sought to preserve." The 5-4 majority's broad interpretation that RFRA applies to for-profit corporations like Hobby Lobby was obviously crucial to its holding.
In addition, however, the 5-4 majority went beyond pre-Smith case law in another crucial respect. Before a person can claim an exemption from a generally applicable law under RFRA, he or she must prove that the law "substantially burden[s] a person's exercise of religion." According to the majority, the corporations in Hobby Lobby met that standard by demonstrating that the use of certain contraceptives that could be purchased by their employees under their health plans would seriously offend the deeply held religious beliefs of their owners. As Justice Ginsburg explained, however, that ruling conflicted with pre-Smith case law on what must be shown to prove a "substantial burden." In several pre-Smith cases, the Court had ruled that there was no "substantial burden" created by, for example, the government's use of a social security number to administer benefit programs or its requirement that social security taxes be paid, despite the genuine and sincere offense that these actions caused to some religious beliefs. As Justice Ginsburg stated, such religious "beliefs, however deeply held, do not suffice to sustain a RFRA claim," except under the extremely broad interpretation of RFRA by the 5-4 Court majority.
As in the Title VII cases, Justice Alito's opinion for the 5-4 majority in Hobby Lobby was revealing about some of the majority's underlying concerns. In explaining the majority's decision to interpret RFRA as applying to for-profit corporations, Justice Alito noted that "[w]hen rights, whether constitutional or statutory, are extended to corporations, the purpose is to protect the rights of these people" - in this case "the humans who own and control those companies" in the Hobby Lobby case. As Justice Ginsburg observed, the 5-4 majority paid little attention to the Court's pronouncement in a pre-Smith case that permitting a religious exemption to a general law for a corporation would "operate[e] to impose the employer's religious faith on the employees" of the corporation.
Even though the Supreme Court's 2013-14 rulings that interpreted civil rights laws passed by Congress may seem different, a common theme animates them all. Whether the 5-4 majority interpreted the statutes broadly or narrowly, the losers in all of them were women, minorities, and working people, and the winners were employers and corporations. In the majority's own words, the result is the "limitation of employer liability" under laws like Title VII designed to protect workers and the "protecting" of the "humans who own and control" corporations under RFRA.
Since all these rulings interpret Congressional statutes, not the Constitution, Congress clearly has the authority to reverse them. In fact, Congress has done exactly that with respect to other 5-4 rulings by the Court that misinterpreted civil rights statutes to harm women and minority workers and benefit their corporate employers. As recently as 2009, the Lily Ledbetter Fair Pay Act reversed a flawed 5-4 ruling that severely restricted workers' ability to file equal pay claims under Title VII. Congress is already considering legislation to reverse many of the effects of Hobby Lobby, a corrective effort that Senate Republicans have blocked by a filibuster to prevent the full Senate from even considering it. In our currently divided Congress, immediate prospects for the passage of such remedial legislation may not appear promising. But it is important to recognize the current 5-4 majority's pattern of favoring corporations and harming workers in its decisions interpreting federal civil rights laws, and to recognize and act on the ability to reverse these harmful rulings.